cross and cloudsBy Nan Futrell

North Dakota voters on June 12 rejected a ballot measure that would have amended the state constitution to prohibit the government from burdening any citizen’s religious beliefs unless it could prove a compelling governmental interest for doing so.

Supporters of Initiated Constitutional Measure 3, also known as the Religious Liberty Restoration Amendment (RLRA), claimed it was consistent with other federal and state laws protecting the free exercise of religion. The measure, however, went beyond existing law in ways that raised concern among some religious liberty advocates, including the Baptist Joint Committee. According to official state election results, about 64 percent of state voters rejected the measure.

In 1990, the U.S. Supreme Court decided Employment Division v. Smith, ruling that neutral, generally applicable laws that burden religious exercise do not violate the First Amendment’s Free Exercise Clause. The decision broke with decades of free exercise jurisprudence, striking down a legal test that, until then, gave heightened protection to free exercise claims. The test stated the government could not substantially burden religious exercise unless it had a compelling reason for doing so, and the regulation imposed is the least restrictive means of accomplishing that interest.

The High Court’s decision in Smith drew ire from religious liberty advocates across political and ideological divides. In response, the BJC led a large and diverse coalition that helped convince Congress to pass bipartisan legislation to restore the compelling interest test called the federal Religious Freedom Restoration Act (RFRA) in 1993. And because the Supreme Court later held that the federal RFRA does not apply to the states, about 16 states have since passed their own versions of the federal bill.

The BJC sent a letter to North Dakota supporters in advance of the primary expressing concerns about Measure 3. Unlike the version of RFRA that the BJC supports, North Dakota’s Measure 3 omitted the important requirement that government burdens on religious exercise must be substantial in order to be challenged in court. Measure 3 would have prohibited all government burdens on religion, however slight — an overbroad interpretation of what the federal RFRA was intended to do. Without the substantial burden requirement, nearly any state law or regulation could be subject to exemption challenges, effectively making religious liberty an automatic trump card. Under RFRA’s more measured approach, courts seek to balance personal religious liberty interests with other important government interests.

Measure 3 also used language unprecedented in any other RFRA, defining a burden as including “indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.” Without any existing guidance, it is impossible to know how courts might interpret such language, and North Dakotans likely avoided costly, taxpayer-funded litigation by defeating Measure 3.

From the July/August 2012 Report from the Capital. Click here for the next article.