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Would Measure 3 help or hurt freedom of religion?

June 1, 2012 - Andrea Johnson
I have a lot of mixed feelings on Measure 3, the so-called religious freedom measure that North Dakota voters will be voting on June 12.

If it passed, a new section would be added to Article I of the state constitution reading: "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."

I've heard good criticism, coming from opposite sides of the issue. One opponent noted that the measure might actually give people LESS freedom than is given under the First Amendment to the U.S. Constitution, which reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Read a certain way, this ballot measure, if passed, would allow the state government to restrict religious activity any time officials think they have a "compelling interest."

I've also seen some television ads in the last week – one featuring a doctor, one a director of social services – arguing that the ballot measure would put vulnerable people at risk. The doctor says men who beat their wives and children could say it was for religious reasons and get away with it if the ballot measure passes. In the same attack ad, the doctor said people could use their religious belief in faith healing as a reason to deny care to a critically ill child. The social services director says that a man could argue he has married a 12-year-old girl for religious reasons.

I have my doubts that the lurid fears of the doctor or the social services director would come to pass. We have other laws that forbid men from beating their wives and children, having sex with 12-year-old girls and taking a cancer-stricken child to a witch doctor instead of an oncologist. Those are the cases that would be no brainers for the state's attorney trying to prove a "compelling governmental interest."

Other cases might be less obvious and the government might have a harder time proving a compelling interest. I suspect the measure is on the ballot specifically to protect Catholic hospitals from having to provide insurance coverage for birth control under the new health care law and religious pharmacists who object to selling birth control or the morning after pill. Those are the cases that I have some trouble with, since I think birth control does need to be covered under the law and a small town pharmacy – which is usually the only one for miles around and enjoys something of a monopoly since the state requires that a pharmacy be owned by a pharmacist, thus cutting out large businesses that might offer lower prices on drugs – should be required to provide services to the people who walk through the door.

I have an easier time with a law that would protect the rights of an individual employee at a pharmacy who objects to selling birth control. In that case, surely the employer can find someone else who can sell the product, provided there is more than one person working at the time.

Other critiques of the ballot measure note that the person claiming religious freedom would have the advantage under the law and the state would have an onerous financial and legal burden trying to prove a "compelling governmental interest" to restrict religious activity. That may be so, but I think the government probably should have a hard time restricting religious liberty and taking away someone's rights.

In short, I haven't made up my mind yet on Measure 3. What are your thoughts on it?


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