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Religious liberty measure a reaction to 1990 ruling

Supporters of a religious liberty constitutional measure slated to appear on North Dakota ballots in June say "unidentified opponents" of the opponents have been "push-polling," using inaccurate information about it.

Supporters of a religious liberty constitutional measure slated to appear on North Dakota ballots in June say "unidentified opponents" of the opponents have been "push-polling," using inaccurate information about it.

Christopher Dodson, director of the North Dakota Catholic Conference, and in effect, the only full-time paid lobbyist for a religious group in the state, is one of the two main leaders of the Measure 3 effort.

People who have gotten the calls and are familiar with Measure 3 say the callers are making false statements, including that it will protect child abusers and domestic violence, Dodson said.

Push-polling is when a telephone survey is done, ostensibly to gauge public opinion, but includes long statements about the issue or candidate in question, from one side or another.

Dodson said he tracked the number given to a Las Vegas firm that does push-polling "for both sides of the aisle."


He doesn't know who hired the firm. After checking with the state attorney general's office, he concluded there is nothing illegal about this effort, because the calls involved "live callers," not recordings.

But it's unethical, he said.

1990 decision

With Tom Freier, director of the North Dakota Family Alliance, a mostly evangelical Christian-based public policy group, Dodson in 2010 formed "The Religious Liberty Restoration Amendment Committee," to write and promote the measure.

Petitions with more than the required 27,000 signatures were approved last May by Secretary of State Al Jaeger.

It stems from a change two decades ago in American jurisprudence on First Amendment rights, Dodson said.

"Up until 1990, the government could not infringe on religious liberty unless there was a compelling state interest, and then the least restrictive means was to be used," Dodson said.

After the Smith decision by the U.S. Supreme Court in 1990, the standard changed to viewing religious concerns as neutral, unless a religion was specifically targeted by a law, he said.


A wide range of religious groups joined by the American Civil Liberties Union reacted to the Smith decision, Dodson said. The result was the Religious Freedom Restoration Act in the mid-1990s, which restored most of the traditional legal protections for religious freedom.

About 15 states have passed similar measures, and another dozen have interpreted their own, and the U.S. Constitution, to keep the traditional burden on the state to find a compelling interest before restricting a religious expression, Dodson said. North Dakota is not one of them, something Measure 3 aims to change.

Protecting rights?

It's most important for religious minorities, Dodson said.

A well-known example is the Amish religious objection to fluorescent orange triangles commonly required on slow-moving vehicles, Dodson said. In Minnesota, which has a state court tradition of respecting religious freedom, an accommodation of silver tape is allowed, he said.

In North Dakota and some other states, Amish would be forced to adopt the same orange signs on their horse-drawn buggies, even though it's well-accepted that the silver tape provides the same degree of traffic safety, Dodson said.

Tom Potter, a retired UND business professor and a commissioned lay pastor in the Presbyterian Church (U.S.A.) in Red Lake Falls, Minn., has spoken out against Measure 3.

"What Measure 3 attempts to do, as far as I can tell, is to make other people believe what I believe," he said.


The Amish objection to traffic safety regulations is imposing their beliefs on the public square, Potter said. "If they want to use public roadways, then they no longer have the freedom to impose their beliefs on the rest of the public."

As a pastor, he's confident religious liberty is "safely enshrined" in the U.S. Constitution, he said.

Potter is running on the Democratic-NPL ticket for North Dakota insurance commissioner, and said it's not really an issue in his campaign. He only heard about Measure 3 himself a few months ago, he said.

Lack of awareness

Dodson said he's confident that people across North Dakota will support Measure 3 in June, as long as they understand it.

That's why the push-polling effort worries him.

Potter has the opposite concern.

"I don't think many people are even aware it's on the ballot," Potter said. "I'm afraid of what will happen when people come to the primary election and see it for the first time."


People generally might react favorably to any religious liberty clause, he said. "But the implications of this go well beyond this sort of knee-jerk reaction."

Reach Lee at (701) 780-1237; (800) 477-6572, ext. 237; or send email to slee@gfherald.com .

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