Voters in Nevada will consider a ballot referendum next month that would amend the state constitution to prohibit discrimination on the basis of sexual orientation and gender identity, and conservative legal groups say it could have implications for religious freedom.
The Equality of Rights Amendment would amend the Nevada Constitution to add a “specific guarantee” that rights could not be denied by the state on the basis of “race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry, or national origin.”
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The measure, which will be on the midterm election ballot as Question 1, is a state-level effort to enshrine into law an expanded version of the Equal Rights Amendment, a proposed amendment to the U.S. Constitution passed by Congress in 1972 that did not become law because the required three-fourths of state legislatures failed to ratify it before a 1982 deadline.
But while the Nevada ballot referendum sounds largely innocuous, conservative groups are concerned that if the amendment is adopted, it would set the stage for renewed challenges to religious freedom.
In an interview with the Washington Examiner, Alliance Defending Freedom senior counsel Matt Sharp said that if the ballot initiative is passed, Nevada would be the first state to enshrine gender identity and sexual orientation as protected classes in its state constitution.
“There’s been many states that have enacted state laws to that effect, and we’ve seen how they’ve been misused to go after people like Jack Phillips,” Sharp said, referring to the Colorado baker who refused to bake a custom cake for a same-sex wedding ceremony on religious grounds and later prevailed in a Supreme Court ruling after state officials attempted to fine him for discrimination.
Sharp said that amending the state constitution to include the new protected classes is “another level of concern.” He explained that the proposed change would likely affect religiously affiliated organizations, schools, and nonprofit organizations that receive any form of state funding.
“Part of the concern is that this is going to be misused to go after religious organizations to tell them that if they want to be part of public life, if they want to be able to participate in these [state-funded] programs and serve their communities, they’ve got to violate their deeply held beliefs on these important matters of marriage and human sexuality,” Sharp said.
The amendment was passed by the Nevada legislature in 2021. At the time, Democratic legislators who championed the initiative dismissed concerns that the measure would constrain religious freedom and would require state taxpayer funding for abortion.
“We’ve waited long enough for equal rights to be incorporated into our state constitution,” state Sen. Pat Spearman said. “We must be brave in protecting the weak, the downtrodden, the oppressed. We must be brave in lifting our fellow Nevadans to a place of justice and equality.”
Senate Majority Leader Nicole Cannizaro said that the only thing the amendment requires is “that we ensure that there is equality under the law.”
The amendment has earned the endorsement of numerous liberal advocacy groups, including the Human Rights Campaign and the American Civil Liberties Union.
In a statement to the Washington Examiner, a spokesperson for ACLU Nevada said that the organization did not believe the amendment would negatively affect religious freedom but declined to offer further information.
ADF’s Sharp said that the passage of the amendment could put the Nevada Constitution in conflict with the federal Constitution and Supreme Court case law, specifically citing the Supreme Court’s June decision in Carson v. Makin striking down a Maine law barring religious schools from participating in a limited school voucher program.
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“There’s going to be legal challenges to this when it gets misused and abused to go after people of faith and to exclude religious organizations, religious schools from these programs that are open to everyone,” Sharp said. “Religious organizations shouldn’t be discriminated based on that. … They should be allowed to serve their community and participate in these programs just like other organizations.”
