The recent effort in Nevada to put into law a bill that would provide the same level of protection for religious freedom that the people of twenty eight other states now enjoy, died on Friday afternoon May 17, 2013. All of Bill’s friends and those who would have benefited in the future will miss him dearly.

Fondly remembered as “The Bill” he was born in Carson City, Nevada on February 26, 2013 and named “Nevada Preservation of Religious Freedom Act “, or SB192 for short. He is survived by many “co-relatives” and was given life by State Senator Barbara Cegavske(R). He was described this way at birth:

AN ACT relating to religious freedom; prohibiting a governmental entity from substantially burdening the exercise of religion of a person under certain circumstances; authorizing a person whose exercise of religion has been so burdened to assert the violation as a claim or defense in a judicial proceeding; authorizing a court to award damages against a governmental entity that substantially burdens the exercise of religion in certain circumstances; and providing other matters properly relating thereto.

Bill was known by many throughout Nevada as a future protector of religion and the exercise thereof. He was spoken of fondly and as necessary for our protection at the state level since the federal “Religious Liberty Restoration Act” had it’s protection narrowed to federal law only.

What Started His Suffering?

He suffered throughout his life in Nevada. The first public beatings took place in March 2013 when he was attacked by his opponents during the Senate Judiciary Committee hearings. Major inflicters of punishment were the ACLU of Nevada, Americans United for Separation of Church and State, Nevada Advocates for Planned Parenthood Affiliates, and LGBT advocates Lambda Legal and Gender Justice.

These groups seemed to settle on the idea that Bill might be used to deny persons their civil rights and health care rights or be used to avoid anti-discrimination laws that the state and federal government has enacted or may enact. Those are code phrases for homosexual issues, and Obama Care regarding women’s “reproductive rights” – in today’s climate. A view that says that these enacted rights should predominate by law, and religious rights should be only be considered when a slot is available – sort of like flying standby.

Simply, Why Did We Need Bill?

The conflict of rights is not new to the courts and there is no need to legislate the exact outcome of such cases. This concept and the reason for Bill’s birth was explained simply and accurately by State Senator Mark Hutchison(R) starting with the Supreme Court case Sherbert v. Verner in 1963:

In that case, the U.S. Supreme Court established a test to determine if an individual’s right to religious free exercise has been violated by the government. Specifically, the Sherbert Test required a court to determine: Whether the person had a claim involving a sincere religious belief; and

Whether the government action was a substantial burden on the person’s ability to act on that belief. If those two elements were established, then the government had the burden of

proving: That it was acting in furtherance of a “compelling state interest”; and

That is had pursued that interest in the least restrictive manner towards religion.

We lived our lives happily (at least considering religious liberty) until 1990 when Employment Division v. Smith added a new wrinkle to our First Amendment protection. Senator Hutchinson continues:

In that case, the Court decided that the state could deny unemployment benefits to Native Americans fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. Under the Court’s reasoning, a law that forbade Orthodox Jews from wearing yarmulkes (ya-me-kas) on government property would be unconstitutional, as it would be targeting religion. On the other hand, a law forbidding all people from wearing hats on state property would be constitutional—even though the law would require Orthodox Jews to violate either their religion or the law in order to walk on government property. In other words, if the law was “neutral” toward religion and “generally applicable” to all persons, the First Amendment would no longer apply, despite the very real burden the law placed on a religious minority. In other words, if the law was “neutral” toward religion and “generally applicable” to all persons, the First Amendment would no longer apply, despite the very real burden the law placed on a religious minority. That is why Congress, almost unanimously, passed the Religious Freedom Restoration Act of 1993 to reinstate religious freedom protections to the Sherbert Test, by declaring that if a government action substantially burdens a person’s religious freedom, that action has to be done in the least restrictive way and must be in furtherance of a “compelling governmental interest.”

But we are not finished yet. Another wrinkle appeared in 1997 with City of Boerne v. Flores. Again Senator Hutchinson:

The U.S. Supreme Court declared that the Religious Freedom Restoration Act was an unconstitutional exercise of congressional power, insofar as it applied to the states. Again, as Senator Cegavske so eloquently stated, the “Nevada Preservation of Religious Freedom Act,” is simply meant to restore the state level protections gutted by the 1997 decision.

Bill though beaten and reviled, was amended to add language similar to the State of Texas that prevented discrimination. It was passed unanimously out of committee (4 Dem, 3 Rep) and onto the full State Senate and was passed 14-7, by a Senate split 11 Democrats to 10 Republicans.

Why All The Fear?

What Bill was not capable of which was very clear when you read it, was that it could not pre-determine the outcome of any argument between parties. Anyone and everyone has a right to seek relief from a perceived or real injustice in a Court of Law. Bill only defined the test that would be used (Sherbert Test) in State Court in order to prevent secular governmental action from intentionally or unintentionally sweeping away the long respected rights of those who practice their religions in everyday life. A fair test that still allows government to govern, but not unrestrained which is also the reason for having three branches of government from our founding.

My perception of the opposition, is that the “culture wars” of society which made this bill necessary were brought into the State Legislature in furtherance of the attacks on religion. No concession to religion in any form will be granted by these groups in retaliation for the refusal of religions to compromise on basic moral values.

On to the Assembly Judiciary Committee.

There Bill was to meet some of the same old opposition and lead to his final death. To the main objections was added a new approach. Here several lawyers complained that Bill would be responsible for a flood of court cases. Now the funny thing about this objection was that it came from lawyers, people who make their living with court cases; cases that try and bring justice to those who have been wronged. I cannot imagine that they felt they were over worked – for a fee of course. No justification for this objection was given from the real world, actually facts about other states were given by the proponents that contradicted that fear.

Another objection to Bill being allowed to live was the fear-mongering that had been attempted regarding pharmacists and emergency room doctors. Attorney Jason Guinasso speaking for Bill along side of the Senate sponsors said in his written testimony:

…in the nearly twenty years since the enactment of the Federal RFRA [Religious Freedom Restoration Act], as well as the fifteen years since the enactment of the first State RFRA, there are no recorded cases under either the Federal RFRA or any State RFRA where either: (a) a pharmacist has been permitted to refuse to provide contraceptives or morning after pills based on his/her deeply held religious beliefs, or (b) an emergency room physician has been permitted to refuse to abort a child in emergent circumstances based on his/her deeply held religious beliefs.

Mr. Guinasso in his verbal and written testimony in order to express the need for further religious protection, told of a recent case of his in Reno, Nevada where he represented a 35 year old disabled pregnant woman who’s religion and that of her adoptive guardians was disregarded in court.

Mr. Guinasso quoted the Judge from Court transcripts in his written testimony:

10/9/2012

THE COURT:

8 Let me just offer to you this: In this room

9 the religion of the situation is legally irrelevant.

10 The Supreme Court has been clear. The founding fathers

11 of our country who were all deeply religious men and

12 woman, but principally men, were very clear in the

13 United States constitution and the Nevada constitution

14 carries the same requirements that religious issues are

15 not relevant to decisions under law. 11/6/12 (page 134-135):

THE COURT:

11 I said before and I comment again, you know,

12 the founding fathers of this country who wrote the

13 constitution and then developed the laws as the

14 constitution was amended were all deeply religious, not

15 to a person, but metaphorically all deeply religious

16 men. There weren’t very many women involved

17 unfortunately. They saw the genius, however, in the

18 separation of church and state, and that has carried

19 through as a fundamental value in our society since.

20 I am not saying her — this human being’s

21 religious feelings are irrelevant. What I’m saying is

22 this is not a religious decision. This is a legal

23 decision. Some in the press about this already would

24 characterize it as a religious decision. I would

25 defend to my last breath their ability to say that, but

1 it is not. It is a legal decision

Mr. Guinasso explains:

Further, the Judge in this case appointed two attorneys to argue for aborting Elisa’s baby and he ordered the County to develop evidence from doctors and other professionals to support the position that an abortion was in Elisa’s best interests. At one point in the extraordinary proceedings that the Court presided over, a doctor had testified: “So if we are taking the responsibility to act in her best interest as a society, then I can’t think of a better choice for her best interest than to end this pregnancy and tie her tubes.” Further, all attempts to get the Nevada Supreme Court to intervene and stop the District Court from conducting “evidentiary” hearings to consider forcing Elisa to have an abortion failed. If S.B. 192 had been the legal standard of the State of Nevada regarding substantial burdens on free exercise of faith and conscience, the Bauers could have successfully argued to the Court that their faith was, indeed, relevant to the Court’s decision. Decisions about a person’s health and well-being and whether a women should have an abortion or not are deeply personal and should be decided by the woman and her family – not the State of Nevada and a Court absent a compelling state interest.

How much clearer can it be that when apologies are given for the lack of women’s representation at our founding and a turning to abortion by the Court, that the culture wars have entered the Judge’s mind as well. Free exercise of religion becomes but a historical memory subdued in favor of the prevailing moral code.

A Quiet Death.

The ACLU of Nevada representative’s objections included the usual plea regarding “women’s reproductive freedom”. The desire to make (in my words) organizations, not just businesses, an extension of the government. These organizations should not be allowed to opt out of providing contraceptives, sterilization, abortion, or any other coverage for individuals no matter what the objection – nothing more than a large scale free distribution system for pharmaceuticals.

She also gave a particularly worrisome piece of verbal testimony when trying to comment on the court case of Mr. Guinasso’s, saying that she understood that the woman wanted an abortion! This was a woman totally dependent and emotionally tied to her family with a mental age of six years old! This statement could not possibly be a reaction to the good news (remember choice or women’s reproductive freedom?) that Elisa Bauer was finally allowed (after much public attention) by the Court to have a perfectly healthy baby with adoptive families waiting to accept her? I understood it as a thought expressed in “Newspeak” to be understood as meaning, see how religion tries to interfere with our desire to rid society of the burden of taking care of babies.

During this strange comment about Elisa’s desires, Mr. Guinasso shook his head emphatically and mouthed no. The press reports of this story tell of the efforts to let this woman have her baby and her agony in court, Amy her mother said, “Until they started talking to her, she was very clear that she wanted to have the baby and come home.” Since the court case started, however, “she’s upset and crying…she doesn’t want to go to court.”

Well, besides the very competent support for “The Bill” from many other people and organizations, Bill succumbed to his wounds and he was allowed to die naturally by the committee chairman, Assemblyman Jason Frierson (D). No vote was taken in the committee of 9 Democrats and 4 Republicans.

Yes, this is how the legislative branch of government works in America.

Funeral arrangements have not been announced.

Sources:

NELIS – Nevada Electronic Legislative Information System.

Writer attendance at hearings.

Thanks to Gwen Linde, Col. USAF(ret) of Libertas Nevada for important details regarding this bill and efforts to have it enacted.

© 2013. Howard Duncan. All Rights Reserved.