It Can Happen Here: Nevada considers anti-gay SB 272

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It can happen here. Two bills have been introduced so far in the Nevada Legislature which are similar to the now infamous Indiana discrimination act.  We need to exercise some caution with these bills, because not all “religious freedom” bills are equally ominous.  Unfortunately, SB 272, sponsored by Senator Hardy, falls into the “Indiana Category.”

“AN ACT relating to religious freedom; enacting the Nevada Protection of Religious Freedom Act; prohibiting state action from substantially burdening a person’s exercise of religion under certain circumstances; requiring strict scrutiny to be applied in all cases where state action substantially burdens a person’s exercise of religion; providing a claim or defense in judicial and administrative proceedings to protect a person’s exercise of religion; providing certain exceptions;…”  [SB272]

The general summary sounds innocuous enough, and similar to federal statutes preventing state actions which constitute an undue burden, but the bill goes one step further.

“Section 16 of this bill allows a person whose exercise of religion is substantially burdened by state action to bring or assert a claim or defense in any judicial or administrative proceeding to protect the person’s exercise of religion from the burden and to seek redress for any harm or injuries to the person, whether or not a governmental entity is a party to the proceeding. Because some state laws protecting religious freedom are applicable only when a governmental entity is a party, those religious freedom laws do not apply to a proceeding between private parties. (Elane Photography, LLC v. Willock, 309 P.3d 53, 76-77 (N.M. 2013)) By contrast, because this bill does not require a governmental entity to be a party, this bill applies to a proceeding between private parties in which one of the parties is seeking to enforce a state or local law, regulation or rule that substantially burdens another party’s exercise of religion.”  (emphasis added) [SB272]

Other religious freedom acts around the country limit the “burden” to areas in which the state or other unit of government are parties to the case; SB 272 opens this up to situations between private parties.  In short, it is a license to discriminate.  This is evident in the definitions segment of the bill:

“Sec. 6. 1. “Burden” means 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.” [SB272]

In short, if an individual can argue that any state statute or regulation compels him or her to do something which impinges on a religious belief then the burden is presumed intrusive, and if a dispute arises between two private parties concerning the ‘right to discriminate’ based on religious beliefs then the discrimination would be lawful.

Not too put too fine a point to it, but SB 272 could be labeled the Religious Fanatic Discrimination Protection Act.  Christianity has been used in the U.S. as a pretext for previous acts of outright discrimination.  While the Bible was cited by the Abolitionists, it was also used to support the Peculiar Institution – of slavery – in the old south.  It has also been cited to support segregation and anti-miscegenation laws. [BFR] [TP.org]

AB 277, introduced by Assemblymen Nelson and Ellison, is from the same boiler plate rendition as SB 272.

“… because this bill does not require a governmental entity to be a party, bill applies to a proceeding between private parties in which one of the parties seeking to enforce a state or local law, regulation or rule that substantially burdens another party’s exercise of religion.”

Little wonder Senator Hardy is listed as a co-sponsor of this legislation.  Given the controversy, it would seem that the sponsors of these bills would have taken more care to sponsor drafts which are not outliers in terms of the genre. By broadening the language and inserting the “rights’” of private parties to discriminate, the sponsors fell into the Indiana Trap, wherein not all RFRA acts are created equally:

The problem with this statement is that, well, it’s false. That becomes clear when you read and compare those tedious state statutes.  If you do that, you will find that the Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs. [Atlantic]

The second problem in Indiana’s statute is the insertion of private rights to discriminate.  Merely because a statute is titled RFRA doesn’t mean it’s like all the others.  [Atlantic] [TP.org] [InAdvance]

As there was a backlash in regard to anti-miscegenation laws, to desegregation efforts, and to racial integration, we may now be seeing the backlash to gay marriage play out in the guise of ‘religious freedom,’ much as though we were being treated to a replay of Theodore Bilbo and Lester Maddox speeches of generations ago.   The Nevada Legislature could make far better use of its time than in the consideration of these two bills.

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