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North Dakotans Reject A Wolf In Sheep’s Clothing

Daniel Mach,
ACLU Program on Freedom of Religion and Belief
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June 13, 2012

Yesterday, voters across North Dakota wisely rejected Measure 3, a proposed amendment to the state constitution that could have undermined crucial health, safety, and civil rights protections in the state. Measure 3, the so-called “Religious Liberty Restoration Amendment,” would have created a new, vastly expanded constitutional right to invoke religious freedom as an excuse to discriminate, ignore existing state and local laws, and claim an entitlement to taxpayer funds and other state benefits. The vote was a victory for all North Dakotans, the great majority of whom recognize that religious freedom need not come at the expense of other cherished rights and values.

At the ACLU, we firmly believe that religious freedom is one of our most treasured liberties, a fundamental and defining feature of our national character. For that reason, we have worked for nearly a century to defend the right all Americans – majority and minority faiths alike – to practice and express their religion. But religious liberty is not absolute, and in our diverse, pluralistic society, religious freedom is not a blank check to ignore the law or harm others.

Measure 3 would have opened the door to a host of potentially dangerous claims. Although its proponents suggested otherwise, Measure 3 went well beyond the federal and state provisions on which it was purportedly based. Unlike those other laws, which typically are triggered only when there is a “substantial burden” on religious practice, the North Dakota measure would have lowered the bar considerably, granting a new right of religious exemption to any existing law that imposed a mere “burden” – however slight or insubstantial – on religious exercise. It also would have allowed individuals and organizations to claim a constitutional entitlement to receive and use taxpayer dollars for a variety of religious purposes and activities. And unlike religious liberty measures previously adopted in other states, like Texas and Pennsylvania, North Dakota’s Measure 3 included no express protections for longstanding civil rights, health, and safety guarantees.

These sweeping features of Measure 3 were no mistake. Rather, the amendment was part of a broader, nationwide campaign to use religion to advance a conservative political agenda. In 2012 alone, we saw bills introduced in nearly half the states nationwide that would do just that. In Arizona, for instance, a newly enacted law allows virtually all state-licensed professional to refuse to provide services that contradict their religious beliefs, and limits the state’s ability to discipline those individuals, even if they fail to meet relevant professional standards. Virginia recently passed a statute that authorizes state-funded adoption and foster care agencies to make discriminatory placement decisions based on the agencies’ religious beliefs, and not the best interests of vulnerable children within the state’s care. And at least five states in 2012 contemplated measures resembling Measure 3, though concerns over government-sanctioned discrimination helped defeat them all. In arguing against Kansas’s “Preservation of Religious Freedom Act,” for example, one Republican State Representative warned that if the bill passed, “Kansas will become known as the land of the pure as defined by the few.’”

Fortunately, North Dakota voters saw through the false claims that religious liberty is somehow under attack (a task made easier by the failure of Measure 3’s proponents to find any concrete examples in the state of this purported threat to religious freedom). On the other side, many North Dakotans spoke out forcefully against Measure 3, including every leading newspaper in the state, from the Fargo Forum, to the Bismarck Tribune and the Grand Forks Herald. North Dakota’s faith communities also played a key role in defeating Measure 3, as various faith leaders and religious organizations voiced their opposition and “grave concern” about this problematic amendment.

Thanks to such widespread and diverse opposition, and the determined efforts of the many volunteers who worked tirelessly to defeat Measure 3, the amendment failed. But these struggles are far from over. We’ll undoubtedly see more attempts across the country to undermine existing anti-discrimination, health and welfare protections in the name of religious liberty. For now, though, religious freedom is alive and well in North Dakota, and, with the defeat of Measure 3, so are the many other rights and liberties North Dakotans hold dear.

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