West Virgina's House of Delegates passed a bill to establish a legal right to discriminate based on religious convictions. The February 27 vote was largely along party lines in a chamber with a Republican supermajority.

The bill stipulates that the government would not be able to "substantially burden" someone's constitutional right to freedom of religion unless doing so "in a particular situation is essential to further a compelling governmental interest."

In cases where the government can prove to the courts there is a "compelling interest" to restrict that right, officials must demonstrate that religious freedoms are being infringed upon in "the least restrictive means" possible.

Democrats expressed concern that the proposal could be used as a tool to discriminate against LGBTQ people and other marginalized groups. Democratic Delegate Joey Garcia also asked whether the proposed law could be used to overturn West Virginia's vaccine requirements, which are some of the strictest in the nation.

One of the legislation's co-sponsors, Republican Delegate Todd Kirby, said those questions would be up to the courts to decide — his bill only provides a judicial test for interpreting the law, he claimed.

Declaring himself a Christian, Kirby said the government has infringed on his freedom of religion in several areas, including vaccination requirements, but especially in school curricula.

Kirby said teachers "are being forced to push the left's agenda, the government's agenda, within the war on traditional families, with such things as promoting transgenderism, homosexuality in our classrooms."

The West Virginia law is modeled after the federal Religious Freedom Restoration Act, signed in 1993 by then President Bill Clinton, which allows federal regulations that interfere with religious beliefs to be challenged.

Eli Baumwell, advocacy director and interim executive director of the American Civil Liberties Union of West Virginia, said the 1993 federal law was designed to protect people, especially religious minorities, from laws that affected their ability to engage in personal practices of their faith. He said similar laws that have been passed by states in the years since have been applied very differently.

"Unfortunately, people have seized upon a good idea and [turned] a shield into a sword," said Baumwell, whose organization is opposed to the bill. "RFRAs today are promoted by organizations and ideologies and aren't concerned about individual religious observances. They're focused on circumventing laws that require fair and equal treatment."

A similar bill failed in 2016 in West Virginia after lawmakers voiced concerns about how it could affect LGBTQ residents. Then Senate Majority Leader Mitch Carmichael, a Republican, spoke in support of the Democratic-proposed amendment that would bar the legislation from being used to discriminate against LGBTQ people.

Before advancing this year's bill to the Senate, Republican lawmakers rejected a similar Democratic amendment to the one passed in 2016, with little discussion Monday. It would have protected nondiscrimination laws or ordinances that protect LGBTQ groups and residents.

In 2016, there were 64 Republicans and 36 Democrats in the West Virginia House of Delegates. In 2023, the GOP majority has expanded to 88 seats, with only 12 Democrats in the body.