The executive director of the West Virginia Association of Counties came out in opposition to HB 4012, the Religious Freedom Restoration Act, at their annual Conference of Counties meeting Tuesday.
Rather than focusing on whether or not the bill will enable discrimination against the LGBT community, Patti Hamilton pointed out that it could lead to lawsuits against counties.
"A lot of papers have called this a LGBT discrimination bill," Hamilton said. "I refer to it as a lawsuit bill."
The Board of Directors of the West Virginia Association of Counties did not take a position, according to Hamilton, because of the controversy around the bill.
While the majority of the opposition toward the bill has come from people saying that it will enable discrimination against the LGBT community, Hamilton said that counties could face an increase in litigation as a result of the bill.
Dave Hardy, a Kanawha county commissioner, said the minimum cost of cases against the county are usually between $30,000 and $50,000. When the bill also includes a fee shifting statute, where the loser may have to pay the winner's court fees, as RFRA does, it could cost counties even more.
At a time when many counties in the state are struggling financially with the decrease in coal severance, the bill could prove costly from a county financial standpoint.
"That's an expensive undertaking for Kanawha County, and we're the largest in the state," Hardy said.
The two court cases brought up by delegates debating the bill both took place on the county level.
One was a situation in which a Jehovah's Witness refused to participate in jury duty and won the case because of his sincerely held religious belief.
The other case involved a, now eliminated, law that required married couples to give blood when they got their marriage certificate. The couple's religion did not allow them to draw blood from their bodies and they won the case.
"There could be a flurry of claims under this if it's passed," Hamilton said. "It would certainly bring this type of litigation to the forefront."
If passed, the law would provide a defense from people who were substantially burdened, or likely to be burdened, by state action and their political subdivisions, which could potentially lead to lawsuits if someone felt that their religious freedom was being violated by county, state or city policy, including nondiscrimination ordinances.
Hamilton said it's hard to predict exactly what lawsuits the counties may face, but some concerns are county employees who may be forced to work on the sabbath and employees who are responsible for issuing certificates. In particular, the bill might provide a legal defense for a county employee who says that giving out marriage certificates to gay couples violates her religion, like what happened with Kim Davis in Kentucky last year. However, no federal court has permitted an infringement on the right to marriage declared by the Supreme Court so far.
Kanawha County Commission President Kent Carper strongly opposes the bill, but for reasons other than facing lawsuits.
"I'm not laying awake at night worrying about lawsuits about it," Carper said. "I'm laying awake worrying about the other stuff."
Reach Daniel Desrochers at dan.desrochers@wvgazettemail.com, 304-348-4886 or follow @drdesrochers on Twitter.