Nevadans, please call, email, write your state legislators about this bill ASAP. The bill was just discussed in the Senate Judiciary Committee, and that committee will be voting soon. Here is some detailed background:
Senate Bill 192: Nevada Preservation of Religious Freedom Act
Purpose: prohibit governmental entities from substantially burdening the exercise of religion.
- This law will restore the standard of “strict scrutiny” for religious liberty at the state and local level. Any state action that substantially burdens the religious freedom of any person must be justified by the state showing that the state act is the least restrictive means of protecting a compelling state interest.
Why does Nevada need this law?
- Federal law no longer provides the protection for religious liberty that it once did (as the result of the 1990 Employment Division v. Smith decision)
- The law will give Nevadans the same protections from local and state government enjoyed by citizens of 27 other states and all citizens from the federal government.
- In a society increasingly characterized by government regulation, citizens need protection against intentional bias as well as burdens on religious liberties that are the unintentional results of new laws.
- Minority faith groups are most vulnerable to overt religious discrimination; this law would protect religious minorities with beliefs and practices unfamiliar to most. For example, Native American groups, Orthodox Jews, and Sikhs.
- The ACLU said, in an amicus curiae brief filed in support of Bourne v. Flores in 1997: “RFRA ferrets out bias by requiring proof of a legitimate motive when government imposes a substantial burden on religious exercise”
- 1990 – Employment Division v Smith: The respondents (Smith and Black) claimed that their free exercise rights were burdened. The Supreme Court found in favor of the petitioner, the Department of Human Resources of Oregon. With Justices Blackmun, Brennan & Marshall in the minority, Justice Scalia wrote the majority opinion in which he asserted the principle that in rules of general applicability, the Free Exercise Clause “does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.” In other words, the majority opinion in Employment Division v Smith eviscerated the so-called Sherbert test, a strict scrutiny standard derived from 1963 Sherbert v. Verner. The ACLU represented the respondents and filed an amicus curiæ in their support: that is, IN FAVOR of strict scrutiny standards: the government may not substantially burden the free exercise of religion unless it can demonstrate a (1) compelling state interest and the use of (2) the least restrictive means.
- 1993 – In reaction to the decision in Employment Division v Smith, the US Congress re-established the Sherbert strict scrutiny standards by statute in the Religious Freedom Restoration Act, which President Clinton signed into law. The law enjoyed the widest imaginable bi-partisan support and the ACLU is on record as having lobbied in favor of the passage of the 1993 RFRA.
- 1997 – Boerne v Flores – the Supreme Court strikes down the application of the Federal RFRA to the states. The ACLU files and amicus brief (attached here) which argues vigorously (and correctly) for the desirability of the 1993 RFRA. In effect, the Supreme Court decides that it is not the role of the federal government to pass such legislation for the states, though they may pass it for themselves. Nonetheless, the 1993 RFRA remains applicable to the federal government. That amicus brief is attached here and it provides the legal rationale for such legislation and it answers questions raised about the possibility of discrimination. The brief argues that: RFRA does not impermissibly favor religion over non-religion; RFRA does not create impermissible entanglement with religion; RFRA’s broad scope minimizes the likelihood of religious favoritism in the granting of accommodation.
Claims made against the Nevada Preservation of Religious Freedom Act, and counterpoints.
The Nevada chapter of the ACLU is making the following claims:
1. If SB 192 became law, a guidance counselor in a public school could refuse, because of his religious beliefs, to counsel a high-school student who is gay.
- This is rubbish: (i) The state has a compelling governmental interest in high school guidance counselors doing their job. (ii) No such lawsuits have EVER been brought in states with RFRAs. In fact, not many lawsuits of any kind are brought on the basis of RFRAs.
2. It could allow a pharmacy owner to refuse to fulfill a prescription for birth control, even in an emergency.
- This is deceptive. Following the lead of Planned Parenthood, the ACLU considers ulipristal acetate (aka ella) or mifepristone (aka RU-486) to be “birth control” when in fact they are abortifacients. Even so, Nevada already has laws that limit the impact of conscience-based refusals on the filling of prescriptions.
3. A landlord could claim their religion says they shouldn’t rent an apartment to an unmarried couple, a Jewish couple, or an African-American couple.
- Again, anti-discrimination laws already regulate the potential for this kind of behavior according to the strict scrutiny standards of S.B.192. The Nevada has a compelling interest to prevent discrimination in housing and already does so as a matter of general applicability according to the least restrictive means possible.
- The Supreme Court has held that claims of religious conviction would not override the government’s interest in preventing private acts of racial discrimination. Bob Jones University v. United States: the Court upheld the IRS denial of tax exemption because of racial discrimination.
Other ACLU and miscellaneous claims:
1. The wording of the law is confusing and vague
- The wording is virtually the same as the federal RFRA. This wording has been used by federal courts in deciding religious freedom cases for decades.
2. This law will allow anybody to invent a religious practice and claim that some law doesn’t apply to him
- This law does not undo criminal laws or give anybody an exemption to break laws. These standards applied to the entire nation prior to 1990, and now apply to all citizens under federal law.
3. Won’t we see an increase in religious freedom claims from prisoners?
- At the maximum, federal RFRA produced an increase in reported prisoner religious freedom decisions of only 1.5 cases per year, as a per-state average
- State attorney generals’ reports show an increase in filings of 3.5 prisoner claims per year; this is consistent with 1.5 decisions per year
- More than 4,000 total prisoner lawsuits are brought every year, on a per-state average
City and County government concerns
1. This law will cause an increase in litigation, particularly among inmates.
- Research shows that this concern has not been realized in states where RFRAs have been enacted. In those ten states, there have been a total of twelve cases litigated under RFRA.
Planned Parenthood claims:
1. This law will restrict women’s access to health care and birth control.
- This law is good for the health care access of all Nevadans. Studies show that large majorities of faith-based health care professionals will give up their professions rather than violate their faiths. Nevada needs to attract health care professionals, especially to our underserved rural areas, and not give them grounds to leave the state. We do this by enacting the Nevada Preservation of Religious Freedom Act.
- 2011 survey by “the polling company,” surveyed 2865 faith-based health care professionals. Over nine of ten (91%) faith-based physicians agreed, “I would rather stop practicing medicine altogether than be forced to violate my conscience.”
- According to the U.S. Congress of Obstetrics and Gynecologists, 11 of Nevada’s 17 counties do not have an ob-gyn. This is worse that the national level, where half of U.S. counties do not have an ob-gyn.
- Even a small percentage of practicing OB-GYNs leaving the profession would impose dire consequences on patients. Existing shortages would be exacerbated as students avoided or were turned away from training programs in health fields where their views were unwelcome.
- Should a health care professional refuse to prescribe or dispense any health care service, procedure, or drug, based on faith, the patient can seek care elsewhere or bring a lawsuit. The courts can then decide if the provision of this health care service meets the strict scrutiny test: is there a compelling state interest, and is the least restrictive means used?
1. This law will increase discrimination against LGBT persons.
- This law actually protects against a different category of LGBT discrimination. If mainline churches have difficulty and encounter bias when applying for zoning and other permits from local governments, what greater bias can an “open and affirming” church, known for ministry to GLBT persons, expect?
- As noted above, anti-discrimination laws already regulate the potential for this kind of behavior according to the strict scrutiny standards of S.B.192. The Nevada has a compelling interest to prevent discrimination in housing and already does so as a matter of general applicability according to the least restrictive means possible.