The Bismarck Tribune has “suggested” that voters reject Measure 3, but the editors appear to have greatly misunderstood the measure and how it would change religious freedom protection in North Dakota.
The Tribune did get something right. The editorial states: “Opponents of the measure have not made a clear case against adopting additional protections for religious beliefs or practices.” The Tribune wisely knows the difference between a “real case” and the monotonous and meritless scare tactics used by the opponents that were purchased by Planned Parenthood.
The Tribune, however, wrongly concludes that Measure 3 would not provide additional religious freedom protection for North Dakotans. Based on that conclusion, the paper recommends preserving the status quo.
Both sides of the Measure 3 debate agree on one thing: With Measure 3 government would need a compelling reason to burden someone’s religious freedom; without Measure 3 government can burden religious freedom for a less than compelling reason.
This is why legal scholars looking at North Dakota law concluded that North Dakota currently does not provide the protection of the “compelling interest” standard that most other states enjoy. (http://www.yesonmeasurethree.org/resources/NorthDakotaScholarsLetter.pdf) Moreover, attorneys on the opposing side acknowledged that they oppose Measure 3 because it would prevent government from burdening religion for non-compelling reasons. (http://www.grandforksherald.com/event/article/id/237293/)
The premise of the Tribune’s editorial, therefore, is flawed and, as such, so is its conclusion. Measure 3 would, in fact, increase religious liberty protection in North Dakota. Given that the Tribune purports to support religious freedom and given that it acknowledges that the opponents have not made a clear case for not providing additional protection, the paper should have endorsed Measure 3.
A final note. The Tribune mistakenly writes that federal HHS mandate generated Measure 3. This is not true and not even possible. The measure was submitted for circulation over two years ago, long before the latest attacks on religious freedom by the Department of Health and Human Services. The Tribune is right that the state constitution is not the vehicle for resolving the HHS mandate issue, but no one from the Religious Liberty Restoration Amendment Committee or the North Dakota Catholic Conference ever claimed that it was or even could be a such a vehicle.
The HHS mandate is a federal issue and Measure 3 would not have any impact on that matter. The vehicle for resolving that issue, it turns out, may be the federal Religious Freedom Restoration Act, the federal law on which Measure 3 was modeled.