Written by Don Byrd
Next month, North Dakota voters head to the polls. Among other items on the ballot is Amendment 3, a measure that would heighten the government’s burden before restricting religious exercise. Similar, but not the same as other states’ Religious Freedom Restoration Acts, the full text is below (my emphasis):
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.
An editorial in the Minneapolis Star-Tribune urges voters to reject the measure, using pretty tough language:
For more than two centuries, the First Amendment to the nation’s Constitution has solidly safeguarded religious freedom in the United States. State measures, such as North Dakota’s, aren’t just unnecessary, they’re un-American. Measure 3 is nothing less than a request for preferential treatment for religious people when their beliefs conflict with new or existing laws.
States are surely free to provide more religious liberty protections than the federal Constitution. There’s nothing un-American about that, whether you agree or disagree with this particular approach. RFRAs all across the country are offering appropriate protections the Supreme Court determined are not included in the First Amendment. The question here is whether the legislation goes too far, adding the refusal to act among those protected religious exercises, and defining a burden as including such things as withholding benefits and exclusion from government programs.