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Cheryl Bergian, Fargo, Published May 16 2012

Measure invites litigation

I agree with the Editorial Board of The Forum, which said on May 13 that Measure 3 “… purports to protect religious liberty, which, by any honest measure, does not need protection in North Dakota. …”

Measure 3 “… doesn’t give anyone a license to do anything that is currently considered against the law,” according to Tom Freier, the executive director of the evangelical North Dakota Family Alliance, in the Jamestown Sun, on May 10. There may be no license in the constitutional amendment, but there’s certainly a mess of litigation that would come.

Measure 3 amends the North Dakota Constitution to provide that if anyone in North Dakota takes an action based on a “sincerely held religious belief,” our state (for example, state’s attorney, for criminal action; or labor commissioner, for employment discrimination) would have to prove that it could prevent that action only if there is a “compelling governmental interest.”

This constitutional amendment is very different than the laws that exist in other states, which require that the burden on action be substantial. This measure requires that the state prove that there is a compelling interest if there is any burden on action, no matter how insubstantial.

So, an abuser in a criminal action, or child protection action, could claim that his or her violent actions were based on a “sincerely held religious belief.” Or an employer could claim that his or her “sincerely held religious belief” mandated that he or she fire a pregnant single mother. The examples go on and on.

And, in every case, litigation would be required to have a district court judge decide both what a “sincerely held religious belief” is (as that is not defined in Measure 3), and whether there is a “compelling governmental interest” at stake. And, the decision of the district court judge could be appealed, for a decision by the North Dakota Supreme Court. Every one of our state’s non-discrimination laws could be re-evaluated by a district court judge.

Anyone could argue that they have a “sincerely held religious belief” to discriminate on the basis of race, religion, gender, marital status or national origin, and the state would be required to prove a “compelling state interest” to prevent the discrimination. All the amendment requires is that there is a restriction on an action, and it’s off to the courthouse, for our state’s attorneys and attorney general staff, all because of a poorly written, poorly considered constitutional amendment.

Measure 3 is a solution searching for a problem. Unfortunately, Measure 3 would only create endless litigation, at the expense of the taxpayer. As an attorney, I might welcome increased litigation. But, as a lifetime resident of North Dakota, there is no need for Measure 3, and I will be voting “no” on June 12.


Bergian is a Fargo attorney.