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HOUSE OF REPRESENTATIVES             H.C.R. NO.            H.D. 1 
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                     HOUSE  CONCURRENT
                        RESOLUTION
 
  REQUESTING A STUDY OF THE IMPACT OF A RELIGIOUS FREEDOM
    RESTORATION ACT IN HAWAII.



 1        WHEREAS, this nation was founded, in large part, by people
 2   who sought the liberty to practice their religions without
 3   impediment, and the right to free exercise of religion is
 4   contained in the very first amendment to the United States
 5   Constitution, and has been described as America's "first
 6   freedom"; and
 7   
 8        WHEREAS, the "Free Exercise" clause has been the source of
 9   substantial protection for believers and non-believers over the
10   years, as embodied in cases such as Sherbert v. Verner; and
11   
12        WHEREAS, another United States Supreme Court case,
13   Employment Division v. Smith seemed to take back some of the
14   religious protection in the Sherbert case, in which the Court
15   declined to use the compelling state interest/substantial
16   infringement balancing test of Sherbert; and
17   
18        WHEREAS, in response to this apparent cutting-back of
19   religious protection, in 1993 Congress enacted the Religious
20   Freedom Restoration Act, which applied a standard quite similar
21   to Sherbert, holding that government could not place a
22   substantial burden on a person's exercise of religion unless
23   the government could demonstrate a compelling state interest
24   and the law is the least restrictive means of furthering that
25   interest; and
26   
27        WHEREAS, however, the 1997 Supreme Court case of Boerne v.
28   Flores held that the Religious Freedom Restoration Act was
29   unconstitutional as it exceeded Congress' power, as Congress
30   relied on the Fourteenth Amendment to the Constitution in
31   imposing its requirements on the states, but that the
32   enforcement right stated in section 5 of the Fourteenth
33   Amendment is only remedial, and cannot establish new
34   substantive rights; and

 
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 1   
 2        WHEREAS, the same impediments to the Religious Freedom
 3   Restoration Act do not exist at the state level, and the State
 4   is free to adopt this type of legislation for itself as it is
 5   not relying on the Fourteenth Amendment for implementation, but
 6   on the State's own constitutional guarantees of religious
 7   freedom as set forth in article I, section 4 of the state
 8   constitution, and its constitutional guarantee of equal
 9   protection under the law, established in article I, section 5;
10   and
11   
12        WHEREAS, Hawaii's citizenry is remarkably tolerant, and
13   adoption of a state version of the Religious Freedom
14   Restoration Act would comport with the general social mores of
15   the citizenry of Hawaii; now, therefore,
16   
17        BE IT RESOLVED by the House of Representatives of the
18   Twentieth Legislature of the State of Hawaii, Regular Session
19   of 1999, the Senate concurring, that the Legislative Reference
20   Bureau is requested to study the impact of adopting a state
21   version of the federal Religious Freedom Restoration Act; and
22   
23        BE IT FURTHER RESOLVED that the Legislative Reference
24   Bureau's study include, but not be limited to, the impact of
25   such an act on: 1) the use of illegal substances by employees
26   on an employer's premises, 2) zoning restrictions, 3) employer-
27   employee relations, and 4) existing civil rights laws and
28   claims if adopting a compelling interest standard; and
29   
30        BE IT FURTHER RESOLVED that the Legislative Reference
31   Bureau is requested to report its findings and conclusions to
32   the Legislature no later than twenty days before the convening
33   of the Regular Session of 2000; and
34   
35        BE IT FURTHER RESOLVED that a certified copy of this
36   Concurrent Resolution be transmitted to the Director of the
37   Legislative Reference Bureau.