If Religious Freedom is Fundamental, We Need Measure 3
by Christopher Dodson
Executive Director, North Dakota Catholic Conference
May 2012

In my last few columns I wrote about why religious freedom is important from a Catholic and an American perspective. As North Dakotans prepare to go to the polls, we need to put those principles into practice with Measure 3.

As Catholics we believe that every person has a God-given right to religious freedom. Because the right to religious freedom is essential to what it means to be human, it must be respected in the law as a fundamental right.

Contrary to what many believe, neither the U.S. nor the North Dakota constitutions protect religious liberty as a fundamental right. Fundamental rights are those that warrant highest level of protection under the law. If a right is fundamental, government cannot burden it unless it has a compelling interest and does so by the least restrictive means.

Prior to 1990, the Supreme Court treated religious freedom as a fundamental right. All laws - federal, state, and local - had to respect religious freedom. This made sense. After all, our country was founded on the principle of religious freedom.

In 1990, this all changed. For reasons still not clear to many legal scholars, the Supreme Court decided that religious freedom was not a fundamental right. Government, including the North Dakota government, could infringe upon religious freedom even if it did not have a compelling interest and even if other ways existed to achieve the law’s purpose.

It was left to Congress and the states to restore religious freedom to a fundamental right. The federal government and many states have done that, but North Dakota has not had that opportunity until now. At stake with Measure 3 is whether North Dakota will recognize religious freedom as a fundamental right.

Opponents of religious freedom will make outrageous statements about Measure 3, claiming that it will allow spousal abuse, child marriages, and clinic bombings. Those claims are baseless. Measure 3 preserves the government’s ability to enforce important laws.

Some opponents claim that the measure is not needed. What they are really saying is that religious freedom should not be treated as a fundamental right. So long as the law does not protect religious freedom as a fundamental right, the measure is needed.

Like the United States, North Dakota has its own history with religious freedom. Our first citizens, the American Indians, for too long had their religious rights trampled. Our Germans from Russia ancestors came here, in part, because their religious rights were no longer respected by the Russian authorities. North Dakota itself has at times passed anti-Catholic laws, such as the anti-clerical garb law that stayed on the books until 2001.

Yet it is with eyes to the future and not just the past that we should support Measure 3. Measure 3 restores the protections that existed before 1990, but it also preserves and passes to future generations the gift of religious freedom. Some North Dakotans may not feel that their religious freedoms are threatened right now, but for the sake of their children and grandchildren, they should vote “yes” on Measure 3 and ensure that future North Dakotans have the freedom to believe and act according to their religious beliefs.