One Step Forward, Three Steps Back?

Well, at least I have some good news to give today. At long last, the Nevada Senate passed what's now SB 139. And not only that, but the bill passed 20-1! Only Senator Joe Hardy (R-Boulder City) voted against it, while all the other Senate Republicans joined all the Senate Democrats to vote to include transgender people in Nevada's hate crimes laws. This was long overdue.

So why am I not too excited today? Well, that's because SB 192 still lurks behind the scenes. If enacted, SB 192 can effectively render null & void SB 139 and all other anti-discrimination laws under the guise of "religious freedom". Ironically enough, Senator Barbara Cegavske (R-Spring Valley) voted for SB 139 today, yet she brought SB 192 from the back rooms of ALEC to the Nevada Legislature.

Remember that SB 192 is exactly the same as the "Preservation of Religious Freedom Act" introduced in Kansas last year and Colorado earlier this year. So pay close attention to the University of Miami School of Law's Caroline Mala Corbin as she explains the true nefarious purpose of this "Preservation of Religious Freedom Act".

A closer inspection, however, reveals that the impetus behind the Kansas act is not protecting religious rights across the board, but protecting the right of certain religious groups to discriminate on the basis of sexual orientation. In particular, the Kansas act creates a defense to municipal anti-discrimination ordinances. Sparking the Kansas act was the city of Lawrence's expansive anti-discrimination protection: in Lawrence, discrimination on the basis of sexual orientation and gender identity in housing, employment and places of public accommodation is illegal. According to its sponsor in the state House of Representatives, the Kansas act would, for example, provide a legal defense to a religious landlord who refused to rent to a same-sex couple. [...]

Because only substantial burdens on religion trigger heightened protection, the first question under the Kansas act is whether an anti-discrimination ordinance requiring a landlord to rent to a same-sex couple imposes a substantial burden on a landlord whose religion condemns homosexuality. The housing ordinance does not require the landlord to engage in homosexual conduct. Nor does the housing ordinance require any landlord to live with someone who does. It does not even demand financial support for the religiously condemned behavior. At most, the landlord may be said to facilitate religiously proscribed conduct by providing same-sex couples with a place to live, and presumably, sin. But does this mean a landlord's religious rights are substantially infringed any time his company rents property to people who act contrary to his church's teachings? If a landlord's religion opposes contraception, does that mean his company can refuse to rent property to women who use it?

In addition, if "facilitating" religiously proscribed conduct amounts to a substantial burden under the law, then a large swath of discriminatory actions could be deemed legal. If providing shelter facilitates homosexual conduct, then arguably so does providing food and health care. Does this mean that restaurants and hospitals can refuse to serve gay and lesbian Kansans? May a storeowner or salesperson refuse to sell beds or bed linen to gay and lesbian customers because, well, wouldn't that be facilitating their sinful conduct? The willingness to describe attenuated impositions as a substantial burden on someone's free exercise of religion ought to raise questions about whether the law is really about protecting religious rights, or about animus towards an unpopular group of people. As numerous Supreme Court cases have held —including Romer v. Evans, which held unconstitutional an attempt to forbid any state action meant to shield people from sexual orientation discrimination — the latter is not a legitimate state interest.

In their legendary 6-3 ruling in Romer v. Evans in 1996, the US Supreme Court invalidated Colorado's law prohibiting LGBTQ inclusive anti-discrimination ordinances because the state has no business subjecting certain people to otherwise wrongful discrimination just due to who they are. This may ultimately compel Kansas to change its version of what we call SB 192. Federal courts have already said no to states green-lighting this kind of discrimination. Why should Nevada play with this fire?

Perhaps because of Colorado's history on this matter, its version of this bill received heightened scrutiny when it was presented to the Colorado Legislature earlier this year. And that's ultimately why the bill died in the Colorado House. Again, why green-light wrongful discrimination and invite otherwise unnecessary expensive litigation?

Funny enough, it's always "tea party" approved conservatives like Barbara Cegavske who complain about "frivolous law suits". Yet they keep introducting legislation that encourages just that. Ah, the irony of the radical right's "CUL'CHUR WARZZZ!!!!!"

Today, the Nevada Legislature took a major step toward providing equal protection under the law for LGBTQ Nevadans. They should keep progressing. We don't need ridiculous and unnecessary regression. Legislators need to do more research and uncover what's actually in SB 192.