Nevada's voters last month approved a ban on smoking in restaurants and certain other public places -- though Question 5 exempted casinos and "stand-alone" taverns that don't serve food. The changes were due to go into effect Dec. 8.

But on Dec. 5, the owners of the Terrible's Hotel and Casino and other Southern Nevada pubs and taverns went to court seeking a restraining order against enforcement of the measure, contending it "authorizes and encourages ... discriminatory enforcement," that it violates the equal protection clause of the United States and Nevada constitutions by relying on "arbitrary and irrational classifications, unrelated to legitimate governmental interest," and that it "fails to provide proper notice to persons of ordinary intelligence as to what conduct is criminalized."

The last contention sounds silly on its face. You don't need to be a rocket scientist to figure out the conduct being criminalized here is "smoking tobacco."

But the complaint may not be quite as silly as it sounds. Once a business owner has posted the newly required "No Smoking" signs, is he or she under any obligation to proactively stop a customer from lighting up? What measures must the business owner take? What's the penalty for failing to do anything, and who's supposed to run around playing "tobacco cop"?

The argument with the most force here, though, is the complaint of unequal treatment. The "Nevada Clean Indoor Air Act permits smoking in grocery stores with unrestricted gaming licenses," plaintiffs point out. But it bans smoking in grocery stores with restricted gaming licenses.

"Permitting smoking in grocery stores with unrestricted gaming licenses while banning smoking in grocery stores with restricted gaming licenses is not rationally related to the purpose of preventing children and families from being exposed to secondhand smoke nor is it related to any other legitimate government interest."

Plaintiffs make similar observations on the parallel distinction in the new law between "taverns with restricted gaming licenses" and "taverns with unrestricted gaming licenses."

The plaintiffs make some good points. Certainly Nevada voters on Nov. 7 embraced a nanny-state measure that might have sounded good (Who wants small children to have smoke blown in their faces as they eat, after all?) but which now presents a cornucopia of unintended consequences, while dangerously eroding Nevada's proud tradition of laissez faire.

And because other states lack the dominant casino interests for whom special exemptions were carved out in Nevada's version of the new anti-smoking law, it's not quite true that this precise argument has been tried -- and gone down in flames -- elsewhere.

What is true, however, is that similar challenges on similar grounds have failed in every other state where voters have sought to ban public smoking.

Clark County District Judge Douglas Herndon issued a temporary restraining order Thursday, delaying enactment of the anti-smoking initiative for at least two weeks. He scheduled a hearing for Dec. 19.

"How dare he?" some will ask. After all, the people have spoken; doesn't the judge know this is a democracy?

Actually, it's not. Neither in the United States nor in Nevada -- which is guaranteed a "republican" form of government -- is the majority free to strip constitutional rights from the minority, or to violate guarantees of due process and equal protection under the law, even by a vote of 99 to 1.

But let's not fool ourselves. The judge has postponed this further step down the path to Californication so he can review the arguments, as is right and proper. But in all likelihood, all the tavern owners have gained is a little time.