“Hail common sense on a state RFRA! Must read for states like MS still considering RFRA even though pulled back recent version.” – Professor Marci A. Hamilton
LAS VEGAS REVIEW-JOURNAL
Suddenly, the “preservation of religious freedom” is all the rage.
Arizona’s Republican Gov. Jan Brewer on Wednesday vetoed Senate Bill 1062, a measure ostensibly aimed at protecting religious rights, but one that liberals said would allow for religiously motivated discrimination. Strip away the heated rhetoric and self-righteous justifications, however, and this boils down to a much simpler legal question: What legal standard should be used to judge alleged trampling on religious rights?
The same debate was had in Nevada in 2013, as Republican and Democratic lawmakers sought to pass Senate Bill 192, the Nevada Preservation of Religious Freedom Act. (Nevada’s law had some similar language to the Arizona measure, but was significantly different.) Proponent state Sen. Mark Hutchison, an attorney, explained to his colleagues that there were two different legal standards. In the first — established by a 1963 Supreme Court case — the government must meet the highest of tests if a law actually burdens someone’s free exercise of religion rights, provided that person’s beliefs are sincere. (That standard demands the government prove the law in question “furthers a compelling state interest” and is the least restrictive means of doing so.)
But a subsequent 1990 case held that if a law applies to all people equally, even if it interferes with the free exercise of religion, then it’s constitutional and the state need not apply the compelling-state-interest test.
Congress responded in 1993 with the overwhelmingly popular Religious Freedom Restoration Act, which passed the House unanimously and drew only three dissenting votes in the Senate (supporters included Nevada’s Harry Reid). That law restored the compelling state interest test, until the Supreme Court ruled in 1997 that it could only apply to the federal government, not the states. In the wake of that ruling, states began to pass their own religious freedom protection laws.
Why it became an urgent issue in Nevada 16 years and seven legislative sessions later was never adequately explained, nor were there an outpouring of concrete examples of violations that the Nevada Preservation of Religious Freedom Act was designed to cure. In fact, it seemed to come down to this: Supporters wanted to make it easier to challenge state laws on a religious basis.
Which is a somewhat less lofty premise than defending the rights of the religious to freely practice their faith unmolested by government.
Or, as the American Civil Liberties Union of Nevada’s Allen Lichtenstein explained at a March 2013 hearing before the Senate Judiciary Committee: “Instead of the presumption that laws are valid for everyone, which is equal protection, there is instead a turning of that premise on its head and saying the presumption is that if someone says he or she has a sincere religious belief, the burden is automatically on the government to prove a compelling interest, which in a different context Justice [Anthony] Kennedy said is almost never proven.”
But wait, there’s more. In a May 2013 hearing before the Assembly Judiciary Committee, Lichtenstein said this: “In fact, this bill as written allows someone to challenge virtually any law, with the exception of those that are defined as a civil rights law,” he said. “We are talking about language that says a religious motivation gets the greatest deference that the courts and the government could give, even though it may affect someone else whose rights do not get that same kind of deference.”
I seem to recall Jesus warned his followers they would be hated, persecuted, slandered, reviled and otherwise disdained. But I don’t seem to recall him insisting that his followers seek a compelling state interest standard of review for all laws that may possibly burden the free exercise of their religion. Oh, and verily throw in guaranteed attorney fees for the prevailing party, will you?
Nevada’s bill died in the Assembly Judiciary Committee, without a vote, and that’s a good thing. Although other states have adopted similar laws, there’s simply no demonstration that Nevada needed this kind of law on its books, especially when one understands that it was always more about legal procedure than defending the First Amendment, which seems to be doing just fine on its own.
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 firstname.lastname@example.org.