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ND Measure 3: Getting Stoned PDF Print E-mail
Written by Chet   

This video of Dan Savage, a relationship and sex advice columnist, is making the rounds on the interwebs.  Right-wing haters are hating it.  Godless left-wingers gush. Me? I think Savage (a) has one important fact wrong, and (b) has a lesson for North Dakotans to ponder while thinking about Measure 3, the measure that prohibits the government from punishing anybody who acts in an otherwise illegal way if they do so based upon a sincerely-held (though horrifically misguided) religious belief. Check out Savage's video:

At 1:40 of the video, Savage makes this point: 

The Bible says that if your daughter is not a virgin on her wedding night -- if a woman isn't a virgin on her wedding night -- she shall be dragged to her father's doorstep and stoned to death.  [Note: Deuteronomy 22:13-21]

Calista Gingrich lives.

There is no effort to amend state constitutions to make it legal to stone women to death on their wedding night. 

Well, Dan Savage; I'd beg to differ. Two states have ongoing efforts to make it legal to stone women to death on their wedding night. You clearly haven't taken a close enough look at proposed state constitution amendments in North Dakota and Colorado.   [Note: After this blog post was written, Colorado's initiated measure was abandoned by its proponents. They apparently feared they could get in trouble for engaging in fraud.] Specifically, Mr. Savage, you need to take a look at North Dakota's Measure 3.

Without getting into Measure 3 too deeply again, I can already hear the protestations from the pro-Measure 3 crowd:  "But Chet, but Chet!!!  The amendment says the government can stop people's religious conduct only if the government has a compelling state interest in infringing upon the specific act... and it has used the least restrictive means to further that interest.  And surely the government has a compelling interest in stopping people from stoning others to the death."  

For discussion's sake, let's say you pro-Measure 3 people are right. Even if you're right, I'm not sure the complete banning of something as important to the Bible as "stoning to the death" could be characterized as being "the least restrictive means" to achieving a compelling governmental goal. Perhaps the stoning could be dialed back a little so that it is only "to the pain" instead of "to the death." We all know from the legislative floor testimony of North Dakota State Senator Oley Larsen (R-Minot) that "Experiencing difficulty and pain is essential for emotional growth."

There can't possibly be a "compelling interest" in stopping emotional growth.

Can there?


Comments (28)add comment

Marty said:

...
Even if the State's interest in that case - protecting the lives of girls - is compelling, all the stoners will have to prove is that there are other things the State could do to "further" that interest in ways that don't infringe so greatly on the stoners' religious belief in stoning.

I've got one: Seat belt laws! Seat belt laws protect the lives of women. Seat belt laws therefore "further" the State's interest in protecting the lives of women, and they do so in a way that is less restrictive to the stoners than prohibiting stoning.

Viola.
 
May 01, 2012
Votes: -1

Chet said:

Masterful
That's brilliant, Marty.

I've been thinking, too, that some folks point to their religion to support their right to beat their children. Corporal punishment is, after all, an extension of "spare the rod, spoil the child" or "He that spareth his rod hateth his son: but he that loveth him chasteneth him betimes." [Proverbs 13:24]

So when Measure 3 passes -- and my prediction is that it will pass -- I'll have a great new defense for clients charged with child abuse and neglect. The burden will be on Social Services to prove my clients aren't acting based upon a sincerely held religious belief.

And that raises another question: how is the government going to prove (a) that they don't have the belief and/or (b) that someone's belief is "sincerely held" or not; especially in a criminal case. The burden is ALWAYS on the government to prove every element of a crime and the absence of defenses (especially fundamental constitutional defenses) in criminal cases. So how are prosecutors going to prove my clients' religious beliefs aren't sincerely held when my client also has the fundamental constitutional right to remain silent.

This is going to be really fun for criminal defense lawyers and not very much fun for prosecutors.
 
May 01, 2012
Votes: +1

wj said:

Once again
you ignore the obvious. Twentyseven states already have this standard, as to all the jurisdictions of the federal government. Twelve of those states have it in their state constitutions. Minnesota is one of those. I don't see stoning allowed in Minnesota.

 
May 01, 2012
Votes: -1

nimrod said:

...
I can't wait for courts to judge religions and judge when religious beliefs are sincerely held.
 
May 01, 2012
Votes: +1

Chet said:

Where?
I haven't taken a lot of time to look in the Minnesota state constitution for identical language, but I did spend a little time. Didn't find it. Would you mind showing me where it is? (Click here for shortcut to the Minnesota state constitution.)

I'm pretty sure you're not talking about Article 1, section 16, because that's completely different.

And the guy who testified about this measure before the Legislative Management committee said it's been adopted in 23 states, now you say it's 27.

Which is it? And might you be able to point me to the specific provisions in those state's codes and/or constitutions?

I hate to be skeptical, but I'm skeptical.

I should note, too, that I honestly think there will be a positive fiscal impact if this legislation is adopted. There will be fewer criminal convictions, so we won't need as many jail cells. I can imagine this provision might solve our prison overcrowding problem.

Another question popped into my head about this: What if there are people out there -- including doctors and nurses -- who have a sincerely held religious belief that male fetuses of all church members should be selectively aborted at the church. Would this measure protect them from being sanctioned in any way?
 
May 01, 2012
Votes: +0

Marty said:

...
"Yet," wj, "yet."

Question: when a state passes legislation to ban Sharia Law, which law trumps - the ban on Sharia Law or the right of individuals to impose Sharia Law due to their sincerely held religious belief in it?

Please don't get us wrong, wj - we're sincerely glad you are here having a dialogue with us. We're praying you have come to provide us some answers.

Will you please tell us, wj, the real reason you are promoting measure 3? Please? NOBODY ELSE WILL. Isn't that strange? To refuse to be honest about why they are pushing Measure 3 is not very Christ-like, if you ask me.

Here's the thing, wj: while we have illustrated the absurdity of this measure with what we HOPE is absurdity, our questions and examples are far more intellectually honest than the excuse any proponent of 3 has come up with for supporting it. Some have said, as you just did, "well, 23 or something other states have this." You agree that's an absurd, reason to support a measure, right? There's a reason we have our own state, right? As bad as our legislature is, you don't really want to close up the legislature and adopt-by-reference the laws of other states, do you? Of course not.

What does Measure 3 mean, wj? What's the truth?

You know the truth. Measure 3 is intended to create a constitutional right to discriminate against homosexuals, for one. Its intended to protect pharmacists from having to sell contraceptives and morning after pills, for two. Right? What else?

Just tell us. You don't need to be secretive about it.

Personally, I would propose that, rather than a vague and poorly written constitutional amendment which is subject to all kinds of unintended applications, let's tackle your issues head on. Let's talk specifically about what rights to discriminate against homosexuals you would like to make sure are codified into law. Please.

Christ would have that conversation, would he not? He'd be open and honest, would he not?

WWJD, wj?

He wouldn't support Measure 3, wj. But he'd have an honest and open discussion about it.
 
May 02, 2012
Votes: +0

wj said:

...
Been busy and travelling and don't have the time to fully answer the questions, but I'll give it a quick shot.

Chet: Minnesota's Art. 1, sec. 16 does not look like Measure 3, but the state supreme court in post-Smith cases interpreted it to adopt the strict scrutiny standard. Sorry, I don't have time to find the cases right now.

According to church/state law professor Eugene Volokh, the number is now 27, plus the federal jurisdictions.

By statute: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Louisiana, Oklahoma, Virginia

By state supreme court interpretation of state constitution: Alaska, Indiana, Maine, Massachusetts, Michigan, Minnesota, North Carolina, Ohio, Vermont, Washington, Wisconsin

Utah has one, but it only applies to land use ordinances, so I would not count that.

RFRA applies it to District of Columbia, Puerto Rico, Guam, etc.

Your hypothetical is not clear to me. What would be the act involved? Pressuring church members to have abortions? Actually performing the abortions in the church? If it is just preaching and teaching that male fetuses should be aborted, how would that be against the law? If the legislature passed a law prohibiting such preaching it would clearly be against the First Amendment (both free exercise and free speech) and the state constitution (with or without Measure 3).
 
May 02, 2012
Votes: +1

wj said:

...
Marty:

Same caveat as above about time.

"Question: when a state passes legislation to ban Sharia Law, which law trumps - the ban on Sharia Law or the right of individuals to impose Sharia Law due to their sincerely held religious belief in it?"

I think that legislation to ban Sharia law would be unconstitutional on federal grounds, even after Smith. See, e.g. Church of Lukumi Babalu Aye v. City of Hialeah. But, even assuming that it would be constitutional, Measure 3 would allow courts to enforce Sharia law in, for example, contractual matters (as is the case now.)

Why is it not possible for you to believe that people support Measure 3 because they belief that religious freedom belongs to everyone as a human right and should not depend on being granted by the legislature on a case by case basis (which is what is happening now)?

You are right that the fact that most states have adopted the strict scrutiny test is not a reason to support Measure 3, but I never made that argument. I pointed out that most states have adopted the standard is to refute the claims that this a radical untested means of preserving religious liberty.

The reasons which you attribute to the supporters actually make little sense. For example, whether pharmacists can refuse to fill a prescription for religious reasons is a private matter between the pharmacist and the customer or the pharmacist and her employer. There is no government action involved so Measure 3 would not be at issue.
 
May 02, 2012
Votes: +0

wj said:

...
Chet:

Please explain why you think the burden would be on the state to prove all the elements in Measure 3? If a defendant contends that statute x is unconstitutional because it burdens his religious belief and, therefore, violates the state constitution, the burden would be on him to prove is unconstitutionality.

Let's take a scenario we all agree on - I think. Imagine a scenario like Church of Lukumi Babalu Aye v. City of Hialeah, or even more direct. Let's say the City of Minot bans the use of alcohol in just religious services. That's clearly unconstitutional, with or without Measure 3. Yet the burden of proving its unconstitutionality rests with the defendants. The state is not required to prove the constitutionality of every law. Measure 3 would not change that.
 
May 02, 2012
Votes: +1

Marty said:

...
Sorry, you lost me, wj. Are you saying the pharmacist's religious freedom to refuse to fill a prescription is or isn't granted by the legislature on a case by base basis?

When you have time, could you address my assertion re: homosexuality as well?
 
May 02, 2012
Votes: -1

nimrod said:

...
BTW, the constitutional exemption is rejected by Prof.Volokh.
A Common Law Model for Religious Exemptions. 46 UCLA Law Review 1465 (1999), excerpted in The First Amendment: The Free Exercise of Religion Clause 232 (Thomas C. Berg ed. 2009). RFRA, a statutory scheme codifying the common law exemption, is vastly different than a constitutional exemption.
 
May 02, 2012
Votes: +0

wj said:

...
Marty: The pharmacist issue is not a government issue at all. As to the homosexuality issue, what laws are we talking about?
 
May 02, 2012
Votes: +0

wj said:

...
Nimrod:

I am not sure where Volokh would stand now, but in 1999 many still favored a federal solution. Volokh's common law model is, to this day, still considered unusual and novel, though an important contribution to the discussion.

One problem with a statutory model is that you get all kinds of exemptions, like Pennsylvania's law.
 
May 02, 2012
Votes: +0

nimrod said:

...
The problem with the statutory model is that you get all kinds of exemptions? The problem with the constitutional model is that each case is unique and each case will be litigated, because there are no statutory definitions of the exemptions and the exceptions to the exemptions. The question is a deeper policy question -- who should decide? Should it be the judges across the state, or should it be the legislature? I think it should be neither.
 
May 02, 2012
Votes: +0

D.E. Bishop said:

...
Perhaps wj is being honest with us regarding why he supports this measure. Overall, Marty has it right. The big boys' (ALEC, etc) motives are as Marty described. We have all seen that there are no limits on their behavior, and no morality. Greed/power is god, for them.
 
May 02, 2012
Votes: +0

Marty said:

...
I'm just interested to see how far wj will go in his deceipt. Fun to watch. (Actually, I suspect he cares little about the policy; for one I suspect he simply enjoys the wordplay, for two I suspect he is getting paid by the diocese to push these half truths / lies.)

Just so everyone is clear: what wj has told us is that Measure 3 will have no application to FUTURE government action. For example, according to wj, because there is not CURRENTLY a law or regulation stating the pharmacists cannot refuse to dispense contraceptives on religeous grounds, then Measure 3 would NOT apply to laws and regulations of this nature in the future.

Fascinating. I completely missed that part when I read it.
 
May 02, 2012
Votes: +0

wj said:

...
Wow, Marty, I never wrote that it would not have application to future laws.

Your post stated that the measure would allow pharmacists to refuse to fill a prescription, implying that it would give pharmacists a right to refuse to adhere to a private contract. I pointed out that the measure would create such a situation because there is no government action involved. You did not ask about a hypothetical in which there was a law.

Only one state has tried a law requiring all pharmacists to fill all contraceptive prescriptions and it was struck down - and that was in a state without a RFRA. So the hypothetical you now propose is unlikely to ever exist. But if it did, if issue is really that important, there might be a compelling interest.
 
May 03, 2012
Votes: -1

Marty said:

...
No, you knew exactly what I meant, and you've known exactly what I've meant with each of my comments and questions. You're a smart person. A smart, lying, deceitful and therefore sinful person. I wonder what the diocese thinks of the image you're conveying.
 
May 03, 2012
Votes: -1

Chet said:

While I was away
I was out of town and am catching up. I see a few of you have been commenting. I've started reading WJ's first response and have to comment. (I'll go back and read everything, but just need to comment on this for now.)

If I'm tracking what WJ is saying -- and please correct me if I'm wrong -- what he's saying is that other states have COMPLETELY different provisions in their legislation (and maybe in a constitution or two) and those provisions have been interpreted one way by those other states' courts. And it is his argument that our state courts will DEFINITELY interpret this constitutional amendment (which is completely different from anything adopted in any other state, if I'm tracking) exactly how those other states' courts have interpreted those completely different provisions?

You know, I tend to believe the UND School of Law gave me a fairly good legal education. Maybe not as good as some, but probably better than others. I studied the U.S. constitution in just about every class (as is common at all law schools, I think). I also took an elective state constitutional law class from Barry Vickrey (retired as dean at USD Law last year). Good guy. Very bright. I still keep the textbook from that class on the bookshelf behind me. Unlike most law school textbooks (most of which I threw away years ago), this textbook still comes in handy all the time.

With that said, I don't remember ever reading or hearing anybody, ever, anywhere, arguing (or any court finding) that the clear intent of the people in adopting one provision in one state that says one thing is exactly the same as the intent of people in some other state who adopted some completely different provision, or that they were adopting similar (though different) language adopted by a court elsewhere. I don't even know how to describe that argument other than "novel."

I'll have to find time later to read the rest of the comments.
 
May 03, 2012
Votes: -1

nimrod said:

Campaign slogan.
Measure 3: A Solution in Search of a Problem.
 
May 03, 2012
Votes: +0

wj said:

...
Chet:

The exact language used in those state statutes, constitutions, and court opinions of course is going to differ, but all employ the strict scrutiny standard, i.e., government must have a compelling interest and use the least restrictive means. Any constitutional lawyer familiar with the subject would recognize that the language of Measure 3 is the strict scrutiny standard.

The state supreme court very often relies on the decisions of the U.S. courts and other the courts of other states when interpreting similar language. In fact, it happens a lot in North Dakota.

But let's assume it doesn't. Why do you assume that the state supreme court would interpret "compelling" and "least restrictive means" in some way radically different than how it has been interpreted for decades by the U.S. Supreme Court and the courts of other states?
 
May 03, 2012
Votes: +1

Marty said:

...
Here's what I don't get: why is Bishop Kagan willing to admit the obvious to KFYR: that the Catholics need Measure 3 in order to make sure they are always free to discriminate against homosexuals: http://www.kfyrtv.com/News_Stories.asp?news=56291
... but then the Diocese's General Counsel ("wj") comes here and pretends that's not the case?

This is turning into a "what did the Bishop know (about the lies his General Counsel is saying here) and when did he know it" situation.

Listen, Bishop, just because your lawyer is using a pseudonym here, it doesn't make this behavior any more acceptable, nor any less sinful.
 
May 04, 2012
Votes: +1

Juspar said:

...
Wouldn't you say that the 911 terrorists were acting on a sincerely held religious belief?
 
May 06, 2012
Votes: +0

Chet said:

A long, annoying practical question...
This is a question for wj, or anybody else who thinks Measure 3 won't have a significant impact on criminal cases in North Dakota. We can talk all day and all night about some other state's interpretation of completely different language in a statute or administrative rule. We can talk about some federal law that's completely different. But that really isn't very useful for the average citizen who will be voting on this measure without the benefit of a law degree.

Here's my question: How, exactly, do you envision this constitutional amendment being applied in a run-of-the-mill case where a defendant wants to assert it as a defense?

Let me give you a hypothetical, and you can just tell me how you envision it playing out in a courtroom. Let's say my client is Jamaican born naturalized U.S. citizen, living in Fargo. He is a Rastafarian.

He is stopped in a routine traffic stop, is frisked and a small amount of ganja (say 1/4 ounce) in a baggie in his pocket. He is charged with possession of marijuana. He comes to you to hire you to defend him in court. He tells you he smokes ganja because it ganja smoking is, essentially, a sacrament in his sect of Rasta. He tells you he has heard North Dakota adopted a constitutional amendment protecting his specific religious actions, and so he doesn't understand why he's been charged at all.

What do you do? When do you do it? How does the Court handle what you do?

 
May 07, 2012
Votes: +2

Alex said:

RE: A long, annoying practical question...
In addition, how would the situation be viewed by the courts (or law enforcement, for that matter) differently pre- and post- Measure #3 adoption?

Please, also, remember that some of us (or, me anyway) are not lawyers, but are very interested in this discussion and are enjoying it immensely, especially since both sides are being so very non-personal on this. Too many of these things become knock-down, drag out personal attacks, and that really isn't happening here. It's very commendable to all, and I for one thank all of you for this display of professionalism.
 
May 08, 2012
Votes: +0

Chet said:

Colorado's radical fringe fundamentalists back out
In this blog post, I noted that a similar constitutional amendment was working its way onto the ballot in Colorado. But last week the radical fringe Christian fundamentalists in Colorado smartened up and backed out. Read about it by clicking here. Though the article hints that they backed out for other reasons, I'd bet someone suggested they talk to a lawyer who practiced criminal law in state court.
 
May 08, 2012
Votes: +0

Sharon said:

...
Scary. The ND Catholic Conference is stuffing all Catholic Church bulletins with vote yes on measure three. SCARY.
 
May 20, 2012
Votes: +0

random said:

...
The Catholic Church in the small town(about 1,000 people) I live in has a big vote for Measure 3 sign right at the bottom of the stairway leading into the church. I'm sure most of the Catholic churches have these same signs.
 
May 20, 2012
Votes: +0

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