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Jane Ahlin, Published May 05 2012

Ahlin: Measure 3 would erode basic religious freedoms

Sometimes the online encyclopedia Wikipedia gives surprisingly good examples. Take the entry about the First Amendment to the U.S. Constitution dealing with freedom of religion that reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. …”

The example – explaining where religious expression leaves off and U.S. laws take over – is a Supreme Court case from 1879: Reynolds v. United States. In it “the Supreme Court upheld the criminal conviction of (a Mormon) under a federal law banning polygamy.” Here’s the explanation the justices gave: Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.

The Wikipedia entry goes on to add, “For example, if one were part of a religion that believed in vampirism, the First Amendment would protect one’s belief in vampirism, but not the practice.” (And aren’t we all relieved about that.)

It’s good to keep Wikipedia in mind when talking about Measure 3 on the North Dakota June ballot. Called the “religious liberty” amendment, Measure 3 is all about increasing the right of religious “action” in the public square, not only by individuals professing religion, but also by religious organizations.

Note the Measure 3 language: 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. (The italics are mine.) A burden includes indirect burdens, such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.

Overreaching and vague, the language of Measure 3 promises nothing but trouble. And sadly, it’s entirely unnecessary. We already have religious freedom guaranteed by our Constitution. What this measure seeks to do is to infringe on the rights we all enjoy as citizens by authorizing religious actions of individuals and organizations as long as they stem from “sincerely held religious belief(s).”

That’s a scary road for a free society to travel.

The major organizations pushing Measure 3 are the North Dakota Catholic Conference and the right-wing Christian North Dakota Family Alliance, which are the same organizations that backed the “personhood” amendment in the last North Dakota legislative session. (“Personhood” would have declared every embryo a “human being,” outlawing many methods of birth control, abortion, and in-vitro fertilization (IVF) while also affecting medical insurance plans.)

Like “personhood” the energy behind Measure 3 appears aimed at the sex lives of North Dakotans. In other words, if a pharmacist opposed sex outside of marriage, he or she could insist that a man or woman provide proof of marriage before purchasing condoms or before a birth control prescription was filled. For that matter, pharmacists could refuse to fill prescriptions at all. No matter that they are legal prescriptions written by licensed doctors for their patients.

Measure 3 backers like that idea, and don’t care about unintended consequences, such as a landlord evicting a pregnant single woman, or an employer firing her. (It’s done in church-run organizations. April news stories told of one Christian school in Texas firing a pregnant unmarried woman, although she offered to get married, and an Indiana Catholic school firing a married woman who accessed IVF.) A domestic abuse case might have to be litigated to decide whether a man’s religious belief, which includes disciplining his wife and children, gives him a greater right than that of his wife and children not to be hit.

Consider, too, that the open-ended nature of Measure 3 guarantees ongoing, court-clogging, North Dakota-taxpayer-financed legal wrangling.

America is a better nation for accepting diverse faith traditions; however, we are a stronger nation for keeping religious practices out of our public sphere.


Ahlin writes a Sunday column for The Forum.