CHARLESTON - The West Virginia House of Delegates approved a bill Thursday touted as protecting religious freedoms but viewed by critics as a possible window for legal discrimination.
The legislation, titled the West Virginia Religious Freedom Restoration Act, would add language to state code allowing people to cite religious-based objections to state actions in certain court proceedings. It passed by a 72-26 margin.
The bill will advance to the Senate for consideration, but Gov. Earl Ray Tomblin has indicated he will veto the bill if it makes it to his desk.
In statements regarding the bill, Tomblin has referred to the effect a similar bill has had on the state of Indiana, which may have lost $60 million in revenue from groups that opted against hosting events in Indianapolis because of a similar law passed in that state, according to reports from The Associated Press.
Supporters of the bill say it shows the state is willing to reaffirm the First Amendment of the U.S. Constitution, while opponents say it further advances stereotypes of West Virginians as being close-minded.
Andrew Schneider, executive director of Fairness West Virginia, the state's lesbian, gay, bisexual and transgender, or LGBT, civil rights advocacy organization, said the bill seeks to legalize discrimination under the guise of religious freedom, saying it may have a devastating effect on the Mountain State's economy.
"Sponsors and supporters of the bill have admitted this measure is a direct retaliation against marriage equality and recent advancements in LGBT discrimination protections," Schneider said in a news release following Thursday's vote.
"It's clear that this legislation seeks to target the LGBT community in West Virginia and jeopardize the right of local governments to protect their citizens from discrimination."
Currently, 21 states have what are called religious freedom restoration laws.
West Virginia's bill would require judges to apply the "Sherbert Test" to determine if a state entity is applying a substantial burden on a person's right to exercise his or her religion. The test is based on a 1963 ruling by the U.S. Supreme Court in the case of Sherbert v. Verner where a South Carolina woman, a Seventh Day Adventist, claimed she was discriminated against for being denied public assistance after she left a job when her work schedule was altered to require her to work on Saturday, which is the Sabbath in her denomination. She also refused to accept job offers for jobs requiring her to work Saturdays.
The U.S. Supreme Court ruled the denial of her unemployment claim created an unconstitutional burden on her ability to exercise her religion.
In the majority opinion, justices effectively created the Sherbert Test for cases of right and ability to exercise one's religious beliefs.
The test requires a person to establish in court his or her sincere religious beliefs, and they must show they have been, or will be, substantially burdened by the government's actions.
In applying the test in court, the government entity in question must be able to prove its actions advance a compelling government interest, and the actions must be the least restrictive means of furthering that government interest, meaning they don't create a substantial burden on a person's ability to practice his or her religion.
In his description of the bill, House Judiciary Chairman John Shott, R-Mercer, said while the West Virginia Supreme Court does practice the Sherbert Test, the court was not legally bound to use the test in religious exemption cases.
"So far, our courts have followed that test," Shott said. "This is our opportunity to say to our court system, 'Here is a fair and predictable standard we want you to apply.'"
He said the bill made it so the court would have to use the test in relevant cases. The language of the bill states its purpose is to "reaffirm the rights of West Virginians" who currently exist in Article III, Section 15 of the state's constitution, which establishes the state's religious freedom.
Shott and other supporters of the bill, including Del. Rick Moye, R-Raleigh, pointed out a similar bill passed the House in 2012 and all of the delegates who served during that session and are still in the House voted in favor of the bill.
"What's changed?" Moye asked. "There seems to be a lot of turmoil about it now. What has changed between 2012 and 2016? The only thing that has changed is the propaganda surrounding this bill."
Del. Mike Pushkin, D-Kanawha, answered Moye's question by saying same-sex marriage had been made legal in the United States since 2012, which he said was a factor in the intent behind the bill's reintroduction.
"It is a push-back to the expansion of certain members of our society's rights," Pushkin said. "I believe that's what the intent is. That's why there's all the fanfare around the bill."
Delegates also debated about the message the bill sent to the rest of the country about West Virginia.
"This makes perfect sense," said Del. Tom Fast, R-Fayette. "It's not discriminatory. It's not something where we are changing what we have already."
Del. Shawn Fluharty, D-Ohio, said the bill does little to change the social perceptions of West Virginia.
"I'm confused if it's 1916 or 2016 in this body," Fluharty said. "We have to think about why we're here. I'm sure many of you have that state pride inside of you. All of us do. We should be here as a body breaking down the barriers to the state, breaking down the stereotypes that we're backwards, backwoods and, now, add bigots to the list. I'm not here for that, and I know deep down you don't want that."
The eight delegates from Cabell and Wayne counties voted 5-3 on the measure.
Dels. Ken Hicks, D-Wayne, Carol Miller, R-Cabell, Doug Reynolds, D-Cabell, Matt Rohrbach, R-Cabell, and Kelli Sobonya, R-Cabell, voted in favor of the bill.
Dels. Sean Hornbuckle, D-Cabell, Jim Morgan, D-Cabell, Don Perdue, D-Wayne, voted against the bill.
The Associated Press contributed to this story.