A proposed amendment to the North Dakota Constitution intended to protect religious liberty has prompted debate over precisely what it safeguards.
Measure 3, which would add a new section to Article I of the Constitution of North Dakota, will go before voters in the June 12 primary, alongside measure on property taxes and the Fighting Sioux nickname.
"Government may not burden a person's or religious organization's religious liberty," says Measure 3. "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."
Should the measure become law, a person could allege that some state law or local ordinance was infringing upon his or her religious liberty, and challenge the law or ordinance in court, said John Bjornson, counsel with the North Dakota Legislative Council.
The new standard requires the state to have a substantial interest in protecting or prohibiting something to burden someone's religious liberty, Bjornson said.
"It appears to apply to all religious beliefs. It's not going to discriminate between a Christian belief or a Muslim belief, or any other religion that someone might claim," Bjornson said.
Measure 3 is a response to a 1990 U.S. Supreme Court decision that held the government no longer needed to have a "compelling interest" to infringe upon someone's religious rights, said Christopher Dodson, executive director of the North Dakota Catholic Conference, which supports the measure.
To restore the "compelling interest" requirement, the Congress passed the Religious Freedom Restoration Act, Dodson said, adding Congress thought it had been written to apply to all the states and state laws.
It didn't. People waited for Congress to pass something similar that did apply to state laws, but it never did, instead applying patches of sorts -- applying to religious liberty for prisoners and inmates at state hospitals, for example, Dodson said.
Measure 3 would fill that gap, according to its supporters.
Detractors say the measure is not only unnecessary but potentially opens the door for many religious behaviors that aren't necessarily positive.
"It appears to my group that this is a solution looking for a problem," said Tom Fiebiger, chair of the North Dakotans Against Measure 3. "It will clog the courts. It will raise all kinds of ways for people to define their own extreme religious views, to the detriment of the majority."
Fiebiger is a Fargo attorney who works on labor, employment and civil rights cases.
He believes the law could allow people to challenge domestic abuse laws or even traffic tickets based on religious beliefs.
For example, someone who goes to church and gets a parking ticket could challenge the ticket because it places a "burden" on his or her religious liberty, Fiebiger said. Or a man could claim he has the right to physically "discipline" his wife and children based on a religious text.
"An employer who believes pregnancy out of marriage is a sin could claim that this amendment authorizes them to fire a pregnant, unmarried employee," Fiebiger said.
Other areas of concern might include child marriage, female genital mutilation, polygamy, honor killings or animal sacrifice -- all practices considered religious by various groups.
"We don't know how it will be used. We're concerned that it will be used to the detriment of people who are vulnerable," Fiebiger said. "I think it would have unintended consequences. It puts the individual ahead of the rights of all North Dakotans."
Tom Freier, executive director of the North Dakota Family Alliance, which supports Measure 3, disagreed.
"Those things are all covered under current law," Freier said, noting current laws would still be in place if the measure passes. "... this doesn't give anyone a license to do something that is currently considered against the law."
Sun reporter Kari Lucin can be reached at 701-952-8453
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