Monday, October 7, 2013


A religious battle has been waged in North Dakota for several months.  The battle is over “Measure 3”, a controversial measure that would add an amendment to the state constitution.  The amendment will protect religious freedoms from the secular state.  More specifically the amendment will... “prohibit the government from putting a burden [on] a person’s or religious organizations religious liberty.”  Those who back the amendment feel that it is the only defense for religious freedom that the state can offer.  Essentially, this amendment will allow religious organizations and individual to trump state law as a direct result of their religious devotion. Critics of the amendment feel that this extremely vague measure will establish a religiously influenced scapegoat for individuals to get away with punishable crimes.  North Dakota residents are fearful of potential repercussions for passing this measure.  More specifically the article cites fear of blatant discrimination by companies.  Others argue that the rights of children will be infringed on.  Some individuals went as far as to argue that the passage of this amendment could protect child abuse perpetuated by religious observation.

 “But critics argued the amendment could cause unintended problems, included providing a curtain of protection for parents who abuse their children or employers who discriminate based on differences in morals and religious beliefs.”

The potential for error appears to be enormous, however many North Dakota residents argue that the room for error is miniscule.  Christopher Dodson of the North Dakota Catholic Counsel provides a cohesive counter argument.  “The measure itself says that it doesn’t affect those acts which the state has a compelling interest in preventing,” he told NPR. “And it’s somewhat irresponsible to even imply that the state doesn’t have an interest in protecting children, women and vulnerable persons.”  If this amendment does regard compelling state interest then some of the potential flaws should be ironed out.  North Dakota is not alone in their pursuit for religious tolerance.  Other states have implemented similar measures to protect organization from some of the controversial implications that come with the Affordable Healthcare Act.  In North Dakota, the measure was rejected with a two thirds vote and residents will not see the new measure pan out.  Regardless of the vote, the measure does address the issue of religious freedom protected by the religion clause of the First Amendment.  The article presents the potential for states to infringe on individual’s and organizations right to pursue their religious devotion in the public realm.  This measure was designed to prevent the state from infringing on or limiting religious practice, however its raises another issue.  The issue being the Establishment Clause.  The clause denounces government laws, measures, etc that promote religion.  More recently, the lemon test had been used to determine whether or not the state’s decision is in agreement with the clause.  Many believe that Measure 3 does not have a secular religious purpose and is not strictly separate (church and state) in nature.  Measure 3 was deemed too religious and unfit for the state of North Dakota.  Personally, I feel that it is crucial to protect religious freedom, however the state overreached with Measure 3.  North Dakota violated the establishment clause in their pursuit to protect religious freedom, thus making their effort unconstitutional.  I sympathize with those who feel violated by the state, however I can not agree with legislation that fails to abide to the very fabric of the Establishment Clause.  I feel the event and subsequent article allows us to understand the fragile relationship between religion and law.  We can see the struggle to protect religious freedoms, however in this case we can see just how difficult it is to pass laws that do just that.  The state can not dance around certain issues in order to address others.  The message of the Constitution must be preserved in the state's actions.  In other words, the means must justify the end.  This is an extremely important case, because it shines light on the pursuit for religious tolerance.  There is, without a doubt, a need for states to begin understanding the delicate relationship between religion and law.  With controversial issues sprouting up, like the Affordable Healthcare Act, courts will need to understand the Constitution in order to make fair and balanced rulings in cases to come.  On the contrary, this case also allows us to look back at past cases (like Marsh v Chambers) in order to understand whether or not the state is instituting blatantly religious practices.  This case proves that states are being held accountable and that the integrity of the Constitution is unscathed. In the end, I must maintain my stance that Measure 3 violates the Establishment Clause even though it was designed to protect religious freedom.     

4 comments:

Nicole D said...

I think I am a little confused by your argument that this is a violation of the Establishment Clause. There are two clauses in the Constitution intending to preserve religion and separate it from the government. The government must not establish a religion, or inhibit the free exercise of anyone wishing to follow their religion. I personally feel that this law is simply putting the most recent interpretation of the free exercise clause of the Constitution into words that would make that clause more clear. It sounds to me like anything that would be illegal under the law would already be unconstitutional anyway. I'm not sure if it's a necessary law, but I definitely think it would help facilitate the free exercise clause and would not be an establishment of religion by any means.

Yessica M said...

It is my understanding that the Establishment Clause is the prohibition of an establishment of religion, now as I was reading this I thought that the only way there is a violation of the Establishment Clause would be the preference between religious and non religious. In my interpretation, “Measure 3,” is somewhat of an exemption being made for those who have a religion, essentially we can say that North Dakota prefers religion (doesn’t quite matter that many religions are included) to non-religion. I do understand that Measure 3 was developed in order to protect the religious freedoms from the secular state, but doesn’t the Constitution technically already guarantee us that right? So what would be the purpose of implementing Measure 3? I agree with Mike that the state overreached with Measure 3, and I would even go on to say a little bit extreme. Let us imagine that Measure 3 was actually passed, so many questions of what constitutes as religious will arise, and then it will become an issue of who gets to decide what is religious. And with no clear definition of what behavior, acts or beliefs are deemed religious would be very impactful on other laws that are used to maintain public order in the state of North Dakota. Essentially anyone would be able to get away with “anything” because Measure 3 protects his or her freedom of religion. This is another issue I had with this along with the clear violation of the Establishment Clause.

Maddie C. said...

I don’t see why Measure 3 as a new amendment is necessarily needed. The First Amendment already protects our right to religious freedom. I agree with Nicole that this amendment seems to just further explain the free exercise clause. It also seems to give more preference religions and those who have religious practices that might contradict legislation. Because of this, I can see that the slippery slope argument can be used here. This amendment will give religions an additional defense for their religious practices, which might not necessarily have been allowed without this additional amendment.

Terry B said...

I think this will cause a huge issue in society because crimes will be committed but be protected based on religious reasons. From what I'm reading it would protect people from any criminal action if their is a religious reason. We would see a huge expansion of religions that we probably never heard about and by the Establishment Clause of the First Amendment we have to recognize the religious no matter how ridiculous the faith seems. I agree with Mike and Yessica no one can constitute what is someone else religion and faith. Religion would trump over the government, which will cause a social change in North Dakota. For example people who believe in the devil can now begin to do bad things because that's what they religion tells them and the government can not stop them due to this new amendment. This will become an open doorway for religion to be protected by all areas of the government. Another example would be the cause discrimination issues for the LGBT community. Most religions do not believe in homosexuality and businesses owners, real estate agents, etc. would have the right to deny these people service based on their religion rights.