An Idaho Attorney General’s opinion, delivered to House State Affairs Committee members shortly before their vote today on HB 427, the religious freedom bill, concluded that the bill conflicts with the Idaho Tort Claims Act and could be vulnerable to a constitutional challenge. The bill, according to the opinion by Deputy Attorney General Brian Kane, “could subject employees to personal liability when they are simply doing their job, and a court later decides that the state or local government policy burdened free exercise of religion.” Kane offered an example: If it was a state prison’s policy not to provide kosher or Halal meals to Jewish or Muslim prisoners, and the prisoners sued. “Then liability could fall upon the employees least responsible for the decisions – those who cook or serve the food,” Kane wrote.
Kane also examined Luker’s other proposal, HB 426, to prevent professional licenses from being suspended or revoked for violations based on the license holders’ “sincerely held religious beliefs.” He concluded that that bill is “likely vulnerable to a constitutional challenge.” Kane pointed to parts of the bill that likely conflict with both the 1st Amendment to the U.S. Constitution and with the Idaho Constitution’s ban on the use of any public funds “in aid of any church or sectarian society, or for any religious or sectarian purpose.”
HB 427 was sent to the House’s amending order after a three-hour-plus hearing today, in dozens of Idahoans testified against it; HB 426 has yet to come up for a hearing. House Minority Leader John Rusche, D-Lewiston, who was one of the lawmakers who requested the opinion, said, “I think they’re both bad ideas.”