Why SB 192 is Not Such a Good Idea

On the surface, voting to protect religious freedom seems harmless, and maybe even noble. In reality, SB 192 (Preservation of Religious Freedom Act) attempts to increase the protection of religious freedom beyond what even conservative judges like Justice Scalia have interpreted the 1st Amendment free exercise clause to mean (See Employment Division vs. Smith).

The Supreme Court has traditionally applied a rational basis scrutiny to laws affecting religious freedoms that are generic laws affecting everyone. A law targeting a religion may get a heightened scrutiny.  In any event, laws like zoning laws for example, that prevent the expansion of building sizes in a given area would not be deemed to ‘affect religious freedom’ if the law prevented a Catholic Church from expanding its building size (See City of Boerne v. Flores).

A federal law called the Restoration of Religious Freedom (which mirrors SB192) created a strict scrutiny standard, which caused a Catholic Church to file suit over a simple zoning law in the aforementioned Flores case down in Texas. The Supreme Court overturned the federal law on the basis that it overextended Congress’s authority to regulate states under the 14th Amendment.

My concern with SB 192, beyond what others have expressed about potential discrimination, is that it creates a strict scrutiny standard with the language that requires the state to demonstrate a “compelling governmental interest” when burdening religious freedoms. Look up strict scrutiny, and you’ll find that exact language.

If SB 192 passes, we may find the state being compelled to honor polygamous marriages under this statute… as a prohibition on such would certainly substantially burden the religious freedoms of some in Nevada. The government would then be required to demonstrate a compelling interest and the prohibition would be subject to strict scrutiny.  When strict scrutiny is applied, laws rarely meet the test.

This bill has been introduced under the guise of simple protection of religious freedom, when in reality it expands the power of religious groups to disregard normal laws that apply to all of us. This bill is a bad idea. We already have the 1st Amendment which protects us from real discrimination against the free exercise of religion. That right was not meant to prevent society from setting the height or size of buildings, and obviously has never protected polygamous marriages.

Justin McAffee

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