March 2012 Church & State | Featured

For progressive activist Don Morrison, a “religious liberty” amendment on the upcoming North Dakota ballot is cause for alarm.

“This measure will give certain people a license to violate the human rights of people they don’t like,” said Morrison, former executive director of ND People, an advocacy group that works for social and economic justice. “That’s just plain wrong in America.”

Morrison and other advocates of civil rights and civil liberties are worried about Measure 3, a constitutional amendment on the June primary ballot. Called the “Religious Liberty Restoration Act,” the proposal would dramatically rewrite the relationship between religion and government in North Dakota.

Proponents say it would merely strengthen religious liberty rights that have been placed in jeopardy by Supreme Court rulings. But critics say the broadly worded amendment would give already powerful religious organizations sweeping new legal weapons to override the rights of women, taxpayers and minorities.

Measure 3 was birthed by an alliance of the state’s Roman Catholic hierarchy and the Religious Right.

The North Dakota Catholic Conference (NDCC), the influential lobbying arm of the state’s Catholic bishops, spearheaded a petition drive that collected signatures to put the plan before the voters.

Christopher Dodson, the NDCC’s executive director, said his organization often has to lobby legislators in Bismarck for exemptions from new laws. With the adoption of Measure 3, that process would take place automatically.

“Legislators would not have to foresee the impact of a bill on every type of religious believer,” he wrote in a column for Dakota Catholic Action. “Lobbyists would not have to review the hundreds of bills introduced each session and seek necessary exemptions.”

The bishops had help from the North Dakota Family Alliance, the state’s leading Religious Right group. The Alliance, the local affiliate of the James Dobson-founded Focus on the Family, assisted with petition circulation and promotion.

Tom Freier, Alliance executive director, said churches and some 700 petition circulators participated in the drive. They collected some 30,000 names, well beyond the 25,688 signatures needed to place the measure on the ballot.

The amendment language reads: “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.”

Proponents contend the measure will simply restore protections that courts applied until 1990 when the U.S. Supreme Court held that general laws apply to everyone even if they inadvertently infringe on individual religious freedom. The decision in Employment Division v. Smith, written by Justice Antonin Scalia, remains controversial, and critics on both the left and right consider it rather rigid.

But advocates of church-state separation are also very wary of sweeping constitutional “fixes” that could give organized religion too much power and jeopardize the rights of minorities.

North Dakota activist Morrison believes Measure 3 is one way for the Catholic hierarchy and other conservative church entities to opt out of anti-discrimination laws and other legislation intended to advance the public good.

“It will legitimize hurtful acts towards people in North Dakota who are gay, lesbian, bisexual and transgender and people who are not the ‘correct’ kind of Christian,” he said. “The people promoting this are people who use fear of others as a tactic to move their agenda, and if this measure passes, it will give some powerful institutions like hospitals and churches more power to say it is OK to ostracize people they don’t like.”

Americans United for Separation of Church and State is also concerned. AU legal experts think the amendment could have a very negative effect.

Said AU Associate Legal Director Alex J. Luchenitser, “Measure 3 could force the state government to provide taxpayer funds to religious groups. It would also cause religious groups to be favored over non-religious groups.

“As a result of Measure 3,” he continued, “religious groups and persons could claim exemptions from laws intended to protect people’s rights, such as laws requiring the provision of reproductive health services or prohibiting the infusion of religion into public education.”

The American Civil Liberties Union and Planned Parenthood have also expressed serious reservations.

Said Robert Doody, executive director of the ACLU of the Dakotas, “This proposed amendment could lead people to refuse to follow virtually any law. It could allow people to argue that they have a right to abuse their children, refuse to hire people of different religious faiths or deny emergency health care.”

Sarah Stoesz, president of Planned Parenthood of Minnesota, North Dakota and South Dakota, thinks Measure 3 is part of the Catholic hierarchy’s national campaign to sanction discrimination under the guise of protecting religion.

“Picking a primary election in a conservative state like North Dakota is no accident,” Stoesz observed in a letter to the editor of The New York Times. “It is part of the well-financed national campaign by the American Catholic bishops to find traction in states that tend to be out of the eye of the national press and discourse.”

Legal scholars confirm that Measure 3 is so broadly written that no one knows how the courts might define it.

Steven R. Morrison, a professor at the University of North Dakota School of Law, says the proposed amendment is “strikingly broad” and would certainly result in increased litigation as proponents and opponents struggle to see how judges interpret it.

According to his research, a dozen states have enacted religious liberty laws in response to the high court’s Smith decision, but only one – Alabama – has adopted a constitutional amendment.

Morrison (no relation to the North Dakota activist with the same last name) said the amendment isn’t problematic in so far as it protects religious individuals whose faith-motivated conduct doesn’t interfere with the rights of others. But when religious people and institutions are protected at the expense of third parties, problems necessarily ensue.

For example, Morrison said, under the amendment, a pharmacist might be able to refuse to fill a birth control prescription or a hospital employee could refuse to participate in an emergency abortion.

“North Dakota,” Morrison noted, “is a large, sparsely populated rural state, and many people may have access to only one pharmacy or one hospital…. The amendment will protect religious practice, but its negative externalities may severely curtail others’ enjoyment of their own constitutional rights.”

The professor says the amendment will affect everything from drug enforcement and zoning law to health care access and taxpayer funding of religious programs.

Regardless of its controversial character and uncertain impact, Measure 3 is headed for the ballot in June, and the political battle over it is likely to be heated and divisive. If it passes in North Dakota, church-state observers expect to see similar propositions in states around the country.

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If you live in North Dakota and want to get involved in Measure 3, contact AU Legislative Assistant Emily Krueger at: