Not this bill again

During the 2013 Legislature, the state Senate unwisely passed what was euphemistically dubbed the Nevada Preservation of Religious Freedom Act, a radical upending of the legal status quo and invitation to frivolous litigation. The bill never got out of the Assembly Judiciary Committee, then headed by Assemblyman Jason Frierson, D-Las Vegas.

But now, Frierson is gone, and the Nevada Protection of Religious Freedom Act is back in a big way.

Essentially, the Nevada bill (Assembly Bill 277) mirrors the federal Religious Freedom Preservation Act of 1993, an ill-considered law proposed by then-Rep. Chuck Schumer, D-N.Y., and was signed into law by then-President Bill Clinton. The measure in theory was designed to correct some disfavored Supreme Court rulings and protect people from government treading on religious rights. But it ended up handing us the utterly predictable Hobby Lobby decision of 2014, in which a “closely held” corporation asserted its right not to provide coverage of some forms of contraception because it transgressed the owners’ religious beliefs.

The RFRA originally applied to the states until a court ruling limited its application in 1997. Activists have been trying to get state versions passed ever since.

And Nevada’s latest version — introduced by Assemblymen Erv Nelson, R-Las Vegas, John Ellison, R-Elko and state Sen. Dr. Joe Hardy, R-Boulder City — is even worse than last time.

The bill frankly admits it seeks to grant “statutory rights which extended broader protections to a person’s exercise of religion that are intended to be more expansive than the constitutional rights protecting the free exercise of religion under the Free Exercise Clauses of the First Amendment.” Because apparently the Founding Fathers just didn’t go far enough!

(And as an aside, the next time you hear a conservative decrying how one group or another is seeking “special rights,” please think of this bill, which will undoubtedly be supported by most every conservative in the Legislative Building!)

The bill would apply the toughest legal standard available — called strict scrutiny — to “all cases where state action substantially burdens a person’s exercise of religion.” And what’s a burden? “Any state action that directly or indirectly constrains, inhibits, curtails or denies the exercise of religion by a person or compels a person to act contrary to the person’s exercise of religion.” And yes, person does include “any corporation, unincorporated organization, partnership, association, trust, estate, foundation ….”

So even if the law says, for example, that peyote use is forbidden even in religious rituals, that restaurant owners have to serve everybody, that landlords can’t discriminate against particular groups of people, or that corporations have to provide complete health care coverage to everybody, Nevada is prepared to hand those disinclined to obey an easy out. Just cite religion, and the government will have to prove in your case that its (otherwise generally applicable) laws are essential to achieving a compelling state interest, and that they’re the least restrictive means of achieving that interest.

Gray area? May as well roll the dice, since relief granted by the bill includes compensatory damages and attorney’s fees. (There is a chance under the law that your claim could be found frivolous or vexatious, and you could be barred from bringing similar claims in the future, but the odds are overwhelmingly in your favor.)

Besides, how do we know if, as the law says, a person’s refusal to follow the law is motivated by a “sincerely held religious belief”? Could we see a court hearing in which a government attorney grills an American citizen on the stand about how often he attends church, reads his Torah/Koran/Bible or prays? Questions about why he interprets one passage of scripture a certain way and not another?

The very idea should make us — religious and nonreligious alike — shudder with revulsion.

What’s the alternative? How about this: Stick with the First Amendment as written, which apparently worked well enough to protect religious freedom in America from 1791 all the way until 1993. Under that scheme, everybody follows the same rules, no matter their religious choice.

Steve Sebelius is a Las Vegas Review-Journal political columnist who blogs at SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or ssebelius@reviewjournal.com.