Colorado’s statewide smoking ban may have to be revised even before it takes effect to avoid violating American Indians’ religious freedom, and that could re-ignite the contentious battle over other exemptions, lawmakers said.
House Minority Leader Mike May, the ban’s chief sponsor, said an American Indian lawmaker raised concerns that the ban could prevent smoking in off-reservation religious ceremonies, such as sweat lodge rites.
"If our bill has stepped on somebody’s religious freedoms, then we need to fix it," May told the Denver Post.
The smoking ban, which takes effect July 1, was signed into law last month. If a legal review determines that it infringes on Indians’ rights, adding a new exemption would require new legislation.
Rep. Mark Cloer, R-Colorado Springs, an American Indian, said he raised the issue with May because "the state should not infringe on religious rights."
May acknowledged that revising the ban could open the door to another bitter fight like the one that accompanied the original bill. Casinos were exempted from the ban, but bars and taverns were not.
May said he would use legislative rules to try to preclude a new battle. "We’re not going to go down that road again," he said.
Chuck Ford, a lobbyist for bar and tavern owners, said that even if May does keep opponents from seeking new exemptions, the revision could be ammunition for a planned lawsuit.
"The next question would be how many other people’s religious freedoms does it trample on," Ford said. "Looking down the road to the court fight, it leads to more ambiguity."
Ford said a legal challenge to the ban may be based on the equal protection provisions of the 14th Amendment to the U.S. Constitution, because the ban exempts casinos but not other businesses that rely on smoking customers.
No Indian tribes have raised concerns about the ban, said Sue Smith, spokeswoman for Lt. Gov. Jane Norton, who heads the Colorado Commission on Indian Affairs.