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John Lamb, Published June 04 2012

Is Measure 3 extra protection or extraneous?

FARGO – A proposed amendment to North Dakota’s constitution on the ballot in the June 12 election – an initiative that supporters say would bolster religious freedoms – has created a vibrant debate.

Proponents say the amendment would restore the protection for religious freedom to the level before the U.S. Supreme Court’s Employment Div. vs. Smith decision. In that 1990 case, the court said First Amendment protection of religion does not allow a person to break the law in the name of a religion.

Opponents say it is unnecessary because religious freedom is not threatened in North Dakota.

Measure 3 would amend Article I of the North Dakota Constitution by adding this provision:

“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.”

“We don’t need it. We haven’t seen any big problems in the state,” says Tom Fiebiger, a Fargo-based civil rights attorney and chairman of North Dakotans Against Measure 3. “It would be different if people’s rights were being trampled. … The average North Dakotan has the same religious liberties they have always had and will continue to have.” Fiebiger and other opponents ask proponents to cite a case or incident in which Measure 3 was needed.

Supporter Christopher Dodson, executive director and general counsel for the North Dakota Catholic Conference, said the amendment would be “somewhat preventative.”

“When it comes to protecting religious freedoms, we don’t wait for a high-profile issue and somebody’s religious freedoms to be infringed before acting,” Dodson said.

Jim Vukelic, a former district court judge, prosecutor and opponent to Measure 3, said the move to amend the constitution on a preventative basis “doesn’t cut it with me.”

“It does irk me that he wants to amend the constitution with the potential consequences that are out there because you want to be proactive,” he said.

Supporter Tom Freier of the North Dakota Family Alliance said the measure is “less complicated than many people would think.”

“It simply puts the burden on the government that it needs to have a very good reason if it is going to encroach or infringe upon an individual or an organization’s religious First Amendment rights,” he said.

Vukelic points to the ruling opinion by Supreme Court Justice Antonin Scalia in the Smith decision, which said in part:

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. … Can a man excuse his practices to the contrary because of his religious belief? 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.”

“Scalia’s not exactly a flaming liberal, and he said if this standard is adopted it could lead to anarchy,” Vukelic said. “So it you get a very conservative Supreme Court justice who has got these misgivings, I don’t see how anyone can say, ‘Scalia doesn’t know what he’s talking about.’ ”

Opponents say Measure 3’s language is vague and opens the door for the possibility of healthcare providers refusing medical care based on faith beliefs. They also say defense attorneys could cite religious beliefs in defending cases of spousal and child abuse.

“Completely false and irresponsible,” Dodson says of claims the amendment could support abuse defenses. “The measure is very clear that it does not interfere with the government’s ability to enforce laws for which it has a compelling interest. Protecting children is the quintessential government interest everywhere.”

Last Thursday, Prevent Child Abuse North Dakota, the North Dakota Women’s Network and the North Dakota Human Rights Coalition all announced opposition to Measure 3.

The same day, Dodson issued a news release on behalf of The Religious Liberty Restoration Amendment Committee calling for an end to claims the measure would allow for abuse.

Freier and Dodson both signed the initiative petition to put the law on the ballot. Bishop Samuel Aquila of the Diocese of Fargo, state Rep. Bette Grande, R-Fargo, and House Assistant Majority Leader Don Vigesaa, R-Cooperstown, and other lawmakers are also on the sponsoring committee.

Supporters say similar protections have been passed in 27 states, but opponents point out only Alabama has amended its constitution.

Vukelic questions if Alabama is a state North Dakota wants to follow.

“They’ve had six different state constitutions and at last count, amended their constitution 827 times. They amend their constitution more often than some people change underwear,” Vukelic said. “We take our constitution more seriously in North Dakota.”

Readers can reach Forum reporter

John Lamb at (701) 241-5533