OUR OPINION: Too much uncertainty surrounds Measure 3

Measure 3 on Tuesday's ballot, the North Dakota Religious Freedom Amendment, would amend the North Dakota Constitution with the goal of protecting religious freedom.

Our Opinion

Measure 3 on Tuesday's ballot, the North Dakota Religious Freedom Amendment, would amend the North Dakota Constitution with the goal of protecting religious freedom.

Amending the constitution is serious business, and voters rightly are careful or even skeptical about doing so. That's why the measure's supporters have argued that the change is nothing new. Federal law already protects religious freedom in much the same way as the North Dakota amendment would, the supporters say.

Likewise, other states have used similar language in changing their own laws.

But is this true?

In fact, it's only partly true -- and in the end, it's not true enough. Measure 3 to some extent is uncharted terrain, and the fact that it's a constitutional amendment would limit North Dakota's alternatives if something goes wrong.


Because of that uncertainty -- as confirmed, for example, by the recent expression of "grave concern" about the measure by the Western North Dakota Synod of the Evangelical Lutheran Church in America -- North Dakotans should vote "no" on Measure 3.

In North Dakota, there is no threat to religious freedom so urgent that the measure needs to be passed right now. The state can take its time and study the issue with more care, including the laws and experiences in other states.

Given the profound worries about Measure 3 as expressed by knowledgeable critics, that's the prudent course.

One key difference between the North Dakota proposal and the ones enacted elsewhere is simply its nature as an amendment. The federal counterpart, for example, is the 1993 Religious Freedom Restoration Act -- a law, not a constitutional amendment.

Likewise, a great many of the states that have passed their own such laws also have done so as a matter of law, not amendment.

That's a huge difference when the need arises for the fine-tuning or even repeal of a measure.

Moreover, Measure 3 in North Dakota -- an amendment, remember -- goes beyond the language used by the federal and state laws.

"The federal Religious Freedom Restoration Act requires an individual or institution seeking an exemption from a law to show that the law imposes a 'substantial burden' on their ability to practice their religion," explains the group, North Dakotans Against Measure 3, on their website, State laws generally use that same language.


But "Measure 3 lacks this provision." In other words, Measure 3 omits the word "substantial" from its declarations. That would make it a lot easier for people or groups to claim a law "burdens" their religious practices, the critics say.

There are other safeguards in other states that Measure 3 lacks, including language that protects people's civil rights from infringement by others claiming a religious right.

"To permit this would be 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." That was U.S. Supreme Court Justice Antonin Scalia's opinion in a religious-freedom case, and it reflects critics' concerns about Measure 3 as well. We suggest North Dakotans vote "no."

Endorsements represent the views of Forum Communications, the Herald's parent company. The endorsement above was written by Tom Dennis, the Herald's opinion editor.

Opinion by Thomas Dennis
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