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Steven R. Morrison, Published May 28 2012

Measure 3 would create system of inequality in laws

As North Dakotans prepare to vote on Measure 3, the Religious Liberty Restoration Amendment, proponents and opponents have been publishing their views. Recently in The Forum, Ronald F. Fisher wrote in favor of Measure 3. As a professor and scholar of constitutional law, I’d like to respond to him.

Because Fisher attacks the messenger (his words), let me say a few things about myself. I teach at the University of North Dakota School of Law (this letter represents only my own views, and not necessarily those of the school). I do not have direct ties to “big government” (Mr. Fisher’s words). I do not attend church. Having graduated from two Catholic institutions of higher education, I deeply respect religious beliefs. I do not support Measure 3. What will happen if it passes?

At its simplest, it will mean that an unknown number of laws will apply differently to different North Dakotans based on their asserted religious beliefs. For example, if a Native American wishes to use the illegal narcotic peyote in his religious service, or a Rastafarian wishes to use marijuana, their illegal conduct will be protected.

Protestants, Jews and atheists will still be prohibited from using these drugs.

It was just such a case that Measure 3 would overturn. In the 1980s, Native American individuals were denied unemployment benefits under the law because of their sacramental use of the illegal narcotic peyote. They argued that this violated their religious freedom. The United States Supreme Court, led by Justice Antonin Scalia, held that the law must apply to everyone equally, irrespective of religious belief. As for religious exemptions, Justice Scalia wrote, “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.”

Fisher is correct that under Measure 3 government would retain the right to regulate religious conduct in the narrowest way possible where the religious practice goes against a compelling government interest. This means that killing a human being in the name of religion could be prohibited, as well as other conduct in the parade of horribles presented by extremist members of all religions.

Measure 3 would, however, provide a license to violate many laws that fall short of enforcing a compelling government interest. Drug use, as the court suggested, is one example. Some forms of spousal or child abuse could be another. Would, for example, a parent be able to violate a law prohibiting the use of weapons in disciplining his child? What if that weapon were a biblical “rod”? Would a county clerk who issues marriage licenses and who believes that her religion requires that the sacrament of marriage be available to same-sex couples be permitted to violate state law and issue a license to a same-sex couple? Must the state permit the polygamous marriage of those few Mormons and Muslims who believe in the practice?

Under Measure 3, the answer to these complex questions would be decided by the North Dakota courts.

To me, the choice that Measure 3 presents to North Dakotans is, on the one hand, treating all people as equals under the law and, on the other, allowing some of us to violate the law where others may not.

In that context, I believe that Measure 3 violates the principle of equality upon which our rule of law has been based since our country’s founding. Some religious people today feel that their freedoms are threatened. I respect that view as one that our democracy demands should play a role in local, statewide and national policymaking. Measure 3, however, is not a smart solution. It would undermine our democratic principle of equality and create more problems than it solves.

Morrison is an assistant professor at the University of North Dakota School of Law.