North Dakota’s Religious Liberty Restoration Amendment is Bad News

Apparently, all it takes for a crack at privileging religion is 25,688 individual signatures.

The North Dakota Family Alliance is working toward that magic number in order to get the Religious Liberty Restoration Amendment before North Dakota voters this November. If passed, this amendment to the state constitution raises the burden a governmental entity must meet before passing a law that strains individual religious beliefs.

To understand what exactly the amendment does, here’s some legal review:

Most laws, by their very nature, burden individuals. It is the reason society functions — we all give up a little for the greater good. Normally, to survive a challenge, a run-of-the-mill law must meet the rational basis test.

To pass the rational basis test, a governmental action be rationally related to a legitimate government interest. This is extremely easy to pass. For example, a law that outlaws spitting might be justified like this: the government has an interest in having clean streets and spitting covers the street in dirty mucus. Done. Almost any explanation works.

Skipping intermediate review, the highest level of review is strict scrutiny. In contrast to rational basis, this is an extremely hard burden to meet. Here, there must be a compelling government interest and the law must be narrowly tailored meet to that interest. Also, the law must utilize the least restrictive means possible. Almost no law survives.

Functionally then, to raise the level of review to strict scrutiny means that no law burdening religion can be passed and survive judicial review. Scary stuff.

North Dakota would not be the only state to have this kind of law in place. In fact, in 1993, Congress passed a law called the Religious Freedom Restoration Act (RFRA). This law was nearly identical to the now proposed ND amendment. RFRA was struck down as unconstitutional in 1997 via City of Boerne v. Flores as exceeding Congress’ federal enforcement powers under the 14th Amendment. Ever since the federal RFRA was struck down, similar state versions have popped up around the country.

The original RFRA and newer state versions are troublesome because they open the door to claims from individuals who wish to use religion to not follow laws. For example, a Christian might use the amendment to say a housing discrimination law burdens their honestly held religious belief that they shouldn’t rent to a gay person. Or someone might try to escape compliance with a drug law. It allows what Justice Scalia (of all people) feared in 1990 when he wrote in his opinion disallowing American Indian use of the drug peyote in Employment Division v. Smith, “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.” The original federal RFRA was enacted by congress as a direct response to Scalia’s opinion in Employment Division with the urging of both Americans United for Separation of Church and State as well as the ACLU– groups that see the law as a good way to strengthen the line between church and government by not allowing interference absent the most extreme circumstances. However, when the line separating church and state becomes so strong as to privilege religion, it has gone too far. Which I guess is to say, if you live in North Dakota, don’t sign that petition!

  • Hitch

    Well there are multiple layers to this. Best is if it doesn’t even make it to the ballots, but unfortunately these groups are well organized. Once on the ballot it’s a money drain and so forth…

  • Kuhn

    Wow. I had not heard about this, and I’m one of that tiny percentage of people who lives in North Dakota. I suppose I should read the paper more often.
    The odds are good when I go back to school this fall I’ll hear about this; people love proselytizing at UND. Thanks for informing me!

  • Claudia

    Why do I have this sinking feeling…

    I’d love to be wrong, but this sounds like the sort of thing that could easily pass. It looks like the kind of issue where being in favor is easy to argue (religious freedom!) and being against much harder (there could be unindended consequences…).

    I’m curious however. Given that the Supreme Court has already ruled that such laws are unconstitutional, is there any real danger it could go into effect? Wouldn’t it be stayed and then summarily tossed out?

  • http://sixblindmenuniverse.blogspot.com/ vininger (Erin)

    Ah…more “great” news coming from the white-bread conservative Christian land of my youth. I could see this passing there (you know, barring the SC declaring it unconstitutional). I’m not saying people there are ignorant, but particularly the older generations (I’m in my 30s, so I’m talking the 50+ set) see anything “supporting religious freedom” and the knee-jerk reaction will be to vote it through. I think it will be perceived as supporting “traditional values” they think are being lost, to the detriment of society as a whole. I don’t think most people will take the time to REALLY read it and consider the implications.

  • Kamaka

    Well, they missed the deadline for inclusion on this year’s ballot.

    But fear not, they will carry on for 2012!

    The catholics are involved…I’m sure one of the religious liberties they’re trying to protect is homophobia.

  • Vanessa

    So does this include all religions, or is there some clause they added to ensure it’s only Christian religions which are not burdened? I mean, either way it would be disastrous, but if other religions joined in, at least they’d get some backlash.

  • ckitching

    The catholics are involved…

    Perhaps… But they also don’t want to be forced to open the coffers to pay those who have been raped by clergy. That couldn’t have anything to do with it, though.

  • Freemage

    Vanessa: If the law specifically privileges Christianity, it won’t fly. They almost are always written generically for that reason. And yes, this does mean that if the referendum does pass, it presents a double-edged sword, one which should be abused by the non-majority faithful and faithless alike to the maximum capability.

  • Dan W

    This law doesn’t make sense. They already have religious liberty as granted by the First Amendment to the Constitution. What more religious liberty do they need in North Dakota? This sounds to me like a sneaky, legalese-worded attempt to get through another law that priveleges Christianity.

    Oh, and I see the Catholics and Focus on the Family are behind this law. In that case, I’m definitely opposed to this.

  • Kimberly

    Kamaka is right, they didn’t have enough signatures by the deadline last week. ND is becoming more and more secular (it’s actually not as backwoods as some like to think), so this ‘amendment’ would probably be even less popular in two years. But I am sometimes a little too optimistic. I honestly believe many (especially rural) North Dakotans’ opinion on god is more due to ignorance than stubborn fundamentalism.

  • Rob h

    The article misses the mark a little on the level of scrutiny for religious freedom laws. The courts would have to apply the “modified” Lemon test (don’t blame me, I didn’t call it that), which is a little wonkier than the standard levels of scrutiny.

  • http://www.americanhumanist.org Bob Ritter

    Brittany – you must have ESP. On August 2, I wrote to a leader of a North Dakota secular organization: “It is important that RLRA opponents be able to respond in a reasonable manner to their claims — altho it is best to take the offensive and label the RLRA an act of ‘religious privilege’ and antithetical to the American principle of equality.”

  • http://www.americanhumanist.org Bob Ritter

    A couple of additional points. First, in City of Boerne v. Flores (1997) the federal RFRA was struck down by the Court only with respect to its applicability to the states. The law remains valid with respect to the federal government. Second, the proposed RLRA differs in one very important way from the federal RFRA — the RLRA would apply to ANY “burden” on “a person’s or religious organization’s religious liberty” whereas the threshold for RFRAs is “substantial burden.” This would elevate religious privilege to stratospheric heights. And, third, on the bright side, many laws can and do survive strict scrutiny where there is a legitimate and compelling governmental interest. In truth, why should government restrict any one’s liberty if it did not have a compelling interest?

  • Winter Wallaby

    Brittany:

    RFRA was struck down as unconstitutional in 1997 via City of Boerne v. Flores as exceeding Congress’ federal enforcement powers under the 14th Amendment. Ever since the federal RFRA was struck down, similar state versions have popped up around the country.

    Claudia:

    Given that the Supreme Court has already ruled that such laws are unconstitutional, is there any real danger it could go into effect? Wouldn’t it be stayed and then summarily tossed out?

    A clarification is in order here. Boerne v. Flores did not strike down the entire RFRA, only its application to state laws. The Supreme Court said that the federal government didn’t have the right to restrict state laws in that manner. The portions of the RFRA where the federal government restricted allowable federal laws were fine. My guess is that the Supreme Court would be OK with a state government restricting allowable state laws, as in this case. In fact, it would be a little awkward for the Supreme Court to say that laws like the RFRA violated the First Amendment, since the test that RFRA imposes is precisely what the Supreme Court said that the First Amendment required, before Scalia’s 1990 decision in Employment Division v. Smith (which overturned a ton of previous case law).

    Functionally then, to raise the level of review to strict scrutiny means that no law burdening religion can be passed and survive judicial review. Scary stuff.

    I haven’t seen the text of the North Dakota law, but I assume it’s similar to the RFRA, and thus has the same standards as the Supreme Court’s pre-1990 position on the Free Exercise clause. What about the Supreme Court’s pre-1990 Free Exercise decisions were “scary stuff”?

  • http://www.redheadedskeptic.com Laura

    Oh, and I see the Catholics and Focus on the Family are behind this law. In that case, I’m definitely opposed to this.

    Seriously? You do realize that occasionally, liberal organizations are on the same side as these conservatives? The most recent example is the alignment of the AFA and the ACLU on the Disclose Act. It does happen. I don’t see how saying that if FotF is for something, you’re definitely against it, is anymore intelligent or freethinking than saying that if they’re for something, you are, too.


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