North Dakota’s Measure 3 draws scrutiny


At first blush, the “Religious Liberty Restoration Act” measure on the North Dakota ballot may not seem especially offensive. But the proposal, which state voters will consider tomorrow, is far more controversial than it may appear.

My friend and former colleague Joe Conn recently wrote a piece on the Measure 3 ballot initiative, which he explained has the potential to “rewrite the relationship between religion and government in North Dakota.”

In practical terms, if critics are correct, the proposal would give religious institutions the power to opt out of laws they find problematic, on issues ranging from discrimination to health care. The regional Planned Parenthood affiliate also believes Measure 3 would affect women’s reproductive health, especially emergency care.

Steven R. Morrison, a professor at the University of North Dakota School of Law, said the amendment includes “strikingly broad” language.

Morrison … said the amendment isn’t problematic in so far as it protects religious individuals whose faith-motivated conduct doesn’t interfere with the rights of others. But when religious people and institutions are protected at the expense of third parties, problems necessarily ensue.

For example, Morrison said, under the amendment, a pharmacist might be able to refuse to fill a birth control prescription or a hospital employee could refuse to participate in an emergency abortion.

“North Dakota,” Morrison noted, “is a large, sparsely populated rural state, and many people may have access to only one pharmacy or one hospital…. The amendment will protect religious practice, but its negative externalities may severely curtail others’ enjoyment of their own constitutional rights.”

Ian Millhiser added, “[M]any states and the federal government exempt religious believers from some laws that ‘substantially burden’ their religious faith. The North Dakota initiative, however, targets any law that merely ‘burdens’ a person’s religious faith. In other words, even the most minor inconveniences to religious practices would be suspect under the initiative.”

Measure 3 made the statewide ballot after the combined efforts of local religious right groups and the North Dakota Catholic Conference, the influential lobbying arm of the state’s Catholic bishops.

North Dakota

North Dakota's Measure 3 draws scrutiny