Playing a North Dakota-Size Religion Card

Over at the Center for Inquiry, we’re trying to get a little more attention for a very troubling development in North Dakota, and I’m hoping against hope that the Friendly Atheist readership in the Roughrider State is huge. For the sake of my sanity, I will presume this to be the case.

Listen: There is a ballot measure to be voted on on June 12th being pimped as a “religious liberty” amendment to the state’s constitution, not terribly unlike the “right to pray” bamboozle being sold (falsely) to the voters in Missouri.

Like that bill, the North Dakota initiative, known as Measure 3, seems to be redundant, asserting in predictably stodgy language that people can practice and believe in their religion without the state getting in their way. Sounds harmless.

But Measure 3 is much worse, in that it can (and almost certainly will) be construed to make religious belief a get-out-of-following-the-law-free card in any number of circumstances. First, here’s the meat of the measure itself:

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.

At the website Verdict, there is an excellent analysis by Marci A. Hamilton of why the use of the word “burden” is so key. (And you should read the entire piece.)

The typical formula these laws set forth goes as follows:

1. To obtain the benefits of a RFRA statute, the believer or organization first must carry a burden to prove that the law imposes a “substantial burden” on religious practice;

2. Then, if the believer can prove a substantial burden, the burden shifts to the government to prove that the law “serves a compelling interest” and is the “least restrictive means” to accomplish that interest.  If the government fails to justify its law under this strictest of standards, the religious actor is not required to abide by the law.

With Measure 3, the word “substantial” is gone. Now, any “burden” will do. It’s going to be very easy for someone to avoid compliance with laws usually applicable to everybody if they can just play their religion card. As Hamilton reminds us in her piece:

…this is a zero-sum game.  When the religious actor gets more latitude to break the law, the persons whom that law was intended to protect lose that protection.

NPR just did a report on this measure (thank goodness) and they lay out the possible harms, including — perhaps most disturbingly — protecting the mistreatment of children under the auspices of religion. Another possible outcome is a blank check for employment discrimination.

From the NPR piece:

Renee Stromme of the North Dakota Women’s Network agrees, saying… “An employer could use religious beliefs to fire a pregnant woman because she is unmarried… So let’s think that through: We now have a single mother, unemployed, struggling to make ends meet, to care for the welfare of her family — and her employer would have a protected defense for his action. And a judge would have to determine otherwise.”

And just off the top of my head, I can think of other implications such as avoiding paying taxes, screwing with science education, and protections for bullying and harassment.

In short, it’s important that North Dakotans reject this measure, both for their own sake and so that this kind of thing doesn’t gain any momentum to crop up in other states.

So if you know folks in North Dakota, let them know they need to vote against Measure 3. Share our recent notice from CFI’s Office of Public Policy. Make sure they know that this is not flowery, harmless language, but a real threat to church-state separation and to equality under the law.

And how hard could it be? There aren’t all that many people in North Dakota to begin with, right? Get on this.

About Paul Fidalgo

Paul is communications director for the Center for Inquiry, as well as an actor and musician. His blog is iMortal, and he tweets as @paulfidalgo.

  • Stev84

    And again I just want to punch anyone who utters the words “sincerely held religious belief” in the fucking face. It’s such a cliched and meaningless buzzword. So what if you sincerely believe something? It doesn’t entitle you to any respect, deference or rights.

    • http://www.facebook.com/profile.php?id=628665833 Bill Santagata

      It distinguishes “real” religious beliefs from protest “religions” like Pastafarianism.

      • jdm8

        I’ve seen it used to exclude those that aren’t consistent in their actions.  For example, I’ve read about a case where a religious woman wanted to be excluded from working on Sundays on religious grounds, but she had voluntarily worked some Sundays for the same employer and thus her objection was denied by the courts.

  • DavidFairbanks

    Anything that limits the power of the government to interfere with peaceful activities is fine with me.

    Let’s get rid of the religious language, and it would be a law I could support.  How about:

    “Government may not burden a person’s or organization’s liberty. The right to act or refuse to act in a manner
    motivated by a sincerely held 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.”

    Obviously if someone is causing harm to others, then action must be taken.  If you think it’s OK to beat your children you are going to have a problem with the state if you act on those impulses.  I don’t see how this law makes it easier for abusers to abuse.

    However, if you have a sincere belief that you act upon, which causes no harm to others.  Let’s try and keep the government out of it.

    The bit about the single mother being fired because of her boss’s sincerely held beliefs is a rough issue.  It forces me to choose between the freedom of the employer to fire or hire at their discretion, and the power of the state to compel the employer to provide a job for a specific person.

    • Stev84

      It forces me to choose between the freedom of the employer to fire or hire at their discretion, and the power of the state to compel the employer to provide a job for a specific person.

      No, that’s not the choice here. Employees have rights too. Your rights don’t magically trumps theirs in all cases just because you happen to employ them.

    • http://www.facebook.com/mrs.schaarschmidt Barb Schaarschmidt

       The fact that you hire and fire based on rational criteria doesn’t mean that everyone does.  The fact that an employer could fire a hardworking employee that follows all of the rules because he has a problem with the person being a single parent DOES infringe on her legal rights.  To now say that he can do it because of his “beliefs” is crazy. 

      Also, that just opens the door to many circumstances where one individual or group takes away the rights of another just because they believe something.

      There have been some prominent news stories lately of people being denied proper healthcare in catholic hospitals because the treatment (in one case an emergency pregnancy termination and in another the issuing of HIV medication) conflicted with the doctor’s beliefs.  This is something we need to stop, not enact into law.

    • jdm8

      “If you think it’s OK to beat your children you are going to have a problem with the state if you act on those impulses.  I don’t see how this law makes it easier for abusers to abuse.”

      That doesn’t quite fly, I’m very wary of making exceptions for this.

      Corporal punishment might be argued on religious grounds (spare the rod, etc.).  Not only can there be significant pain inflicted (even if no damage occurs), it just yields more violent people when they grow up.

      We’ve seen several times where members of a particular church that preaches faith healing deny their children proper medical care, and it’s only when severe harm is done does the state bother to step in, and that’s because the state has overly lenient religious exceptions.  There have been several children dead of preventable illnesses because of this.

      So I think it’s right to be wary of special privileges or exceptions due to religious beliefs.

  • Trevor

    As someone living in North Dakota, it is frustrating as hell to see “vote yes on 3″ signs up on many church properties and, with several of them, inside the church as well.
    Fortunately, more and more anti-violence organizations, Planned Parenthood, and – the newest – even the ELCA has come out against Measure 3. The sanity is slowly spreading, but I’m afraid that, like Wisconsin, it will not be able to compete with the stupid of seemingly every church in the state.

    • Erin

      Come down to South Dakota! I’ll buy you a drink and we can compare our crazies. :)

  • mmccutch

    The American Indian Religious Freedom Act of 1978 and the stronger revision of it in 1994 both attempted to give practitioners of Native American religions some rights to protect burial sites and to use peyote in ceremonies.  The Supreme Court slapped down cases invoking both of these acts. 

  • Tinker

    I want to move to ND now. I am starting a new church called the Church of Responsible Rapid Drivers (CORRD). My sincerely held religious beliefs will mean that I cannot be pulled over for speeding. Of course it will be a branch of Xtianity and I will tell the courts that Jeebus is actually the one driving because otherwise they will throw it out as not a recognized religion.

  • http://northierthanthou.com/ northierthanthou

    This seems very much like the old balancing test, which governed free exercise case-law just before the smith peyote decision. I’m not sure I agree with it either, but I don’t know that it’s the blank check you seem to suggest.

  • NickDB

    Sweet! Satanism will be protected too now. YAY more human
    sacrifice rituals.

    /s just in case it’s needed.

  • http://www.facebook.com/profile.php?id=628665833 Bill Santagata

    Free exercise is already a fundamental right guaranteed by Amendment I of the Constitution, so therefore any law that infringes on that right is already subject to “strict scrutiny” (a legal test that uses the same language in this measure: the law serves a compelling government interest and is as narrowly tailored as possible to achieve that interest). Nothing in this measure seems to change that.

    However, this does not apply to businesses as intra-state commerce can be regulated by the state and inter-state commerce regulated by Congress (for example, no business in the country can discriminate on the basis of religion, even if your sincerely held religious beliefs lead you to believe that Jews are the enemy of Satan). We need to be vigilant if we see a similar measure that would extend the right to free exercise to businesses and corporations. This would undermine anti-discrimination laws and other business mandates.

  • Gwen

    So you can beat your wife and children to death, or marry off your 5 year old daughter to a pedophile, but as long as you show it to be your sincere religious batshit belief, you cannot be prosecuted…

  • http://heathenhall.blogspot.com Joseph

    Looks like Measure 3 got crushed pretty convincingly; 64-36.

  • Justin

    I’ll be honest, I was pleasantly surprised by the outcome. Apparently I do not give my fellow North Dakotans enough credit. Well done everyone!


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