The proposal, known as Measure 3, would exempt religious individuals and groups from adhering to laws they believe qualify as a violation of their religious liberty, unless the government proves it has a compelling interest in regulating the specific act in question. While opponents say the vaguely worded ballot initiative is unnecessary since Americans already have a constitutionally protected right to religious freedom, supporters say it would restore vital protections that were stripped from people of faith following the U.S. Supreme Court's decision in Employment Division v. Smith.
In the 1990 case, the court ruled the First Amendment protection of religion does not allow a person to break the law in the name of religion. Some faith groups believe that decision could potentially infringe on their religious beliefs, even though opponents argue it's unnecessary because religious freedom has not been threatened in North Dakota. Specifically, Measure 3 would amend Article I of the North Dakota Constitution by adding this provision:
Government may not burden a person's or religious organization's religious liberty. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government proves it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A burden includes indirect burdens such as withholding benefits, assessing penalties or an exclusion from programs or access to facilities.
To clarify, federal law already exempts religious believers from some laws that substantially burden their faith under the Religious Freedom Restoration Act. In contrast, the North Dakota initiative targets any law that merely burdens a person's faith, an unclear qualification that opponents say could potentially make even minor inconveniences to religious practices suspect. If anything, it would almost certainly clog state courts with lawsuits from religious individuals and groups who believe their faith has been infringed on in some way, according to North Dakotans Against Measure Three.
We're concerned about someone taking advantage of the law and claiming a religious exemption to laws that are meant to protect us all -- like laws against discrimination, laws against child abuse and domestic violence or laws governing employment, said Tom Fiebiger, the chairman of the organization, which consists of a grassroots coalition of religious leaders and medical and legal professionals.
Opponents fear that, if approved, Measure 3 could be used by religious groups to discriminate against what they believe are immoral people or policies. For instance, Measure 3 could even allow health care professionals to refuse vital care to individuals if they believe it infringes on their beliefs, despite the existence of state laws and professional standards of care. That means a pharmacist could refuse to dispense life-saving HIV medication to gay and lesbian patients because of a religious belief that homosexuality is wrong, while a nurse at a publicly funded hospital could theoretically refuse to provide prenatal care to an unmarried pregnant women because of a moral belief that premarital sex violates a religious doctrine.
As North Dakotans Against Measure Three points out, if passed, the initiative could also allow religious groups to argue they have a right to obtain state money for religious purposes and activities. Meaning, they could potentially use taxpayer funds -- paid out by all North Dakotans -- to discriminate against and deny services to certain groups.
Measure May Be Inspired By Contraception Debate
On its website, North Dakota Family Alliance , one of the primary sponsors of the amendment, says Measure 3 is needed because our religious liberty is a treasured freedom on which America was founded and now is being threatened and under attack.
The only law the group, which did not return multiple requests for comment, gives as an example of such a violation is a provision in the Obama administration's health care overhaul that states employer-sponsored health insurance policies must include contraception coverage, without a co-payment or out-of-pocket costs to employees. The mandate sparked a national partisan debate over contraception coverage and religious liberty, leading to lawsuits from several Catholic groups, including the U.S. Conference of Catholic Bishops.
For its part, the website for the measure's other major supporter, the North Dakota Catholic Conference, includes a list of actual laws Measure 3 could guard against. While many of its examples apply solely to religious issues that would not affect the state's secular population, the group also says the amendment is needed to sidestep regulations requiring licensed counselors to provide couples therapy to same-sex couples and to ensure adoption agencies give preference to married -- by that, the group says, they mean heterosexual -- couples.
The North Dakota Catholic Conference also did not return a request for comment.
For his part, Christopher Dodson, the organization's executive director and general counsel, told the Jamestown Sun the amendment would be somewhat preventative, because we can't wait for a high-profile issue and somebody's religious freedom to be infringed on before acting.
However, Dodson did not provide a case or incident in which Measure 3 has been needed.
Jim Vukelic, a former North Dakota district judge and prosecutor who opposes the amendment, told the newspaper that even the famously conservative Supreme Court Justice Antonin Scalia, in his ruling opinion in the Smith decision, noted that religious people and groups must adhere to most civil laws.
In that decision, Scalia wrote: Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. ... Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.
Religion On The Ballot in 2012
At least 15 states have enacted their own laws resembling the federal Religious Freedom Restoration Act. However, like the federal law, those also specify religious groups must demonstrate that laws they oppose qualify as a substantial burden to their faith.
Some of those states have included provisions that intend to ensure the law does not give anyone the right to harm other people. In Texas, the legislation prevents exemptions to laws that protect the civil rights of all state residents, while Pennsylvania's law prevents exemptions that could compromise public health and safety.
Aside from North Dakota, three other states may vote on constitutional amendments regarding religion. Colorado's Religious Freedom Amendment, which supporters are still collecting signatures for, would mandate that the government cannot exclude expressions of religious belief from public places. Meanwhile, Florida's Amendment 8, which will appear on the Nov. 6, 2012, ballot, would prevent the government from barring public funds to religious organizations, while Missouri's Public Prayer Amendment would guarantee the right to pray and worship on public property.