Voters in North Dakota today are going to the polls, and one major item on the agenda has become a source of controversy. In the wake of the conflict between the Catholic Church and the Obama Administration, religious groups in the state have been pushing for the passage of a state constitutional amendment known as Measure 3. The full text of the amendment reads as follows:

“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.”

The amendment was designed to protect religious groups from legal infringement like that experienced by the Catholic Church nationally. North Dakota Catholic Conference director Christopher Dodson was quoted as saying that current law in North Dakota left religious groups “vulnerable” to further assaults. “The status quo in itself is unacceptable. It’s just a matter of time before religious freedoms are impacted if we don’t fix the law.” Both Dodson and ally Tom Freier, president of the North Dakota Family Alliance, cited 1990 Supreme Court case law from Employment Division v Smith that weakened federal protections of religious liberty and passed the responsibility for addressing such issues to the states.  Without increased protections, religious concerns could be overrun.

Frier specifically compared the law to flood insurance. “Are you going to wait until the flood to get the protection? There are situations, maybe they’re not as great as in some other places, but they are needed and the time to do it is right now.”

Opponents of the law have put considerable effort into mobilizing. The website devoted to the cause, ndagainst3.com, has collected a large number of testimonials – including those of some religious leaders – who believe that Measure 3 would be harmful. The site’s “Get The Facts” page lists several horrific scenarios that could befall the state of North Dakota should the measure go through, including marrying off girls as young as twelve, discrimination based on gender or race, and domestic violence.

Both sides seem to have painted equally unacceptable scenarios that end with some level of draconian injustice. To try to clear the air, as it is election day in North Dakota, let’s analyze Measure 3’s two biggest points of contention to see if the critics’ arguments hold any water.

First, North Dakotans Against Measure 3 argues that religious liberties are already protected adequately under North Dakota’s Constitution. In contrast, proponents have argued the exact opposite, citing Employment Division v Smith as evidence that the law is not adequate. Smith was the case in which an Oregon state employee was prevented from collecting unemployment benefits. Smith was a Native American and belonged to a church that taught that the consumption of peyote was a holy sacrament. Oregon classified Peyote as a narcotic, and thus argued that Smith’s firing and subsequent denial of unemployment benefits were completely justifiable.

The Court found against Smith, arguing in part that his religious liberties claim did not pass their judgment. In effect, the Court did not hold Oregon to federal First Amendment standards in this case. Because the law banning peyote possession was neutral regarding religion and generally applicable in nature, it did not violate the First Amendment:

“For if a State has prohibited through its criminal laws certain kinds of religiously motivated conduct without violating the First Amendment, it certainly follows that it may impose the lesser burden of denying unemployment compensation benefits to persons who engage in that conduct.”

Other cases from this time period were equally problematic to religious groups. One of the more famous of these was Lyng v Northwest Indian Cemetery Protective Association, which affirmed the federal government’s right to build a road through the middle of sacred Native American burial grounds – despite strong evidence that its destruction would have destroyed the religious practices of the several tribes that used that burial ground. In response to these cases, Congress passed the 1993 Religious Freedom Restoration Act (RFRA) which was designed to restore via statutory law the stricter level of legal review and protection from before Smith. The Court, however, restricted RFRA’s enforcement to federal laws and actions only in City of Boerne v Flores, citing that the law was an inappropriate overreach of Congressional authority over the states.

So what should we take away from this history? The protection of religious liberties has largely become split between the state and federal levels of government. While the federal government has certain levels of religious protection that it seeks to uphold and enforce in its operations, a State like North Dakota can choose a different level of religious protection than other states. Oregon chose to change its laws and craft a religious exemption for peyote consumption after Smith, but it equally could have chosen to uphold those restrictions.

In a sense, Measure 3 would act as a RFRA encoded into the North Dakota state constitution. This is not only entirely permissible under federal law for them to do, but as Dodson mentions in this radio debate on the subject is also comparable laws passed by many other states including Michigan and Wisconsin. The objection raised by North Dakotans Against Measure 3 that religious liberties are already protected adequately by federal laws may be correct, but it is not relevant to the question of state law being raised here. The state will ultimately decide for itself at the polls whether or not the additional protection is needed.

The second major objection is the notion that Measure 3 will permit legal abuses in the name of religion. Spousal and child abuse, child marriages, endless litigation, and discriminatory hiring and firing practices are all cited as possible pitfalls. It is worth noting here that several of the sources they cite while making these objections fall into three basic categories: articles or quotes attributed to Tom Fieberger, the Chairman of NDAM3; articles by Cheryl Bergian, a Fargo attorney and a former Democratic Party candidate for North Dakota Public Service Commission; and the writings of Professor Steve Morrison of the University of North Dakota School of Law. Other significant sources cited include Prevent Child Abuse North Dakota, the North Dakota Women’s Network (both allies of NDAM3), and columnist Jane Ahlin.

While some of the sources may be suspect, they still seek to craft a legal argument. Steve Morrison, as the law professor in the group, goes the furthest in doing so in a letter he wrote to Joe Conn, the Editor of Church & State Magazine published by Americans United for Separation of Church and State. The letter, which is very long and detailed, cites one of Morrison’s primary concerns as the risk that religious activities protected by Measure 3 might harm others:

“What is problematic is treating religious people differently when it comes to category three situations [situations where laws are crafted to be neutrally applicable] in which there are negative externalities associated with the religious practice in question. A hypothetical variant of Smith might entail a group that uses heroin for religious purposes. Heroin being illegal and expensive (unlike peyote, which is natural and locally available), users are forced to steal to buy heroin, they use and dispose of dirty needles that create a public health hazard, they fuel a violent drug trade, and so forth.”

Morrison’s example, though extreme, illustrates the nature of his concerns. However, among the many examples he cites of how this might be realized in real world terms, he specifically cites issues of “reproductive rights” where religious individuals might refuse to fill birth control prescriptions for others or participate in emergency abortions. Failure to do so may thereby cause “harm” to those who did not receive those services. Interesting enough, it is these exact concerns which motivated the Catholic bishops to fight against the Obama administration’s original problematic Health and Human Services regulations requiring religious employers to cover birth control, sterilization, and abortion-inducing drugs as a part of their employer-based health insurance. This aspect of the debate on Measure 3, it seems, is the exact same political debate played out on a state level.

As it was on the federal level, the conscience question is the one at issue: if a person has a moral concern that compels them to act (or not act) in a particular way, should the law compel that person to act against their own conscience if the law enshrines a different moral standard? One might easily answer no, because at that point the law becomes inappropriately coercive in nature. This, however, plays right into the argument of Measure 3’s opponents, who would respond with the claim that the horrors they mentioned as possible consequences of the law (child marriage, abuse, discrimination, and the like) would then become justifiable because the government could not use laws to coerce.  If the argument stops here, then Measure 3 does look extremely problematic.

But what opponents of Measure 3 fail to consider is that legally, some forms of coercion are morally permissible under criminal statutes and other laws.  Such laws that would still have authority in these matters. The very first Supreme Court religion case, Reynolds v United States, dealt with this very question:

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?”

The court used this justification to uphold the prohibition of polygamy in the Utah territory, but the same thinking holds for the modern day. The question hinges on the nature of what those writing the laws consider to be important enough moral and social issues that give the government a “compelling interest” to intervene. There are indeed some issues upon which everyone can agree: Child marriages can still remain illegal, abusive husbands can still be punished and jailed, and discriminatory hiring practices can still be prosecuted as violations of civil rights. None of those situations will be legal or become prevalent as a result of this law.

It is my belief that Measure 3 is an appropriate and meaningful way to protect religious liberties in North Dakota. Contrary to many of the arguments made against the measure, I believe that the law can be responsibly enforced without resulting in many of the horrors theorized by the measure’s opponents.  As voters in North Dakota make their way to the polls today, we will find out if residents of the state also feel the need to improve their state’s defense of religious liberty.

David Giffin | Emory University | @D_Giffin