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!