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|North Dakota Measure 3: Wife-Beaters' Dream Come True|
|Written by Chet|
[If you are looking for information on how to vote on the November 2012 general election ballot measures, click here.]
Early primary voting season starts in North Dakota in a week or two and nobody is talking about North Dakota's Measure 3, a proposed state constitutional amendment. There has been virtually no public debate about the measure, and it has only sparingly shown up in news reports. When it has shown up in the news, it's been covered by North Dakota's worst reporters, with no hard questions being asked.
Most of you probably don't know what Measure 3 is, so I had better share it with you. The people behind the measure have been pretty stealthful about it. They obviously don't want people to be thinking about the measure, or discussing it, before walking into the voting booth. Here's the measure:
Government may not burden a person's or religious organization's religious liberty. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government proves it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A burden includes indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.
When I first learned of this measure, I expressed my reluctant support for it, but only because I am a criminal defense lawyer, and I think Measure 3 will create a HUGE benefit for my clients who are accused of crimes. I believe that Measure 3 will force prosecutors, in every criminal case, to affirmatively prove that the accused was not acting upon a firmly held religious belief in engaging in the allegedly criminal conduct. Since the measure would create an express, fundamental, constitutional protection against Government interference in people's behaviors based upon "sincerely held religious beliefs," the burden -- "beyond a reasonable doubt" -- would obviously be on the government to prove it was not meddling in those types of beliefs. Criminally accused persons NEVER have to affirmately prove they were engaging in constitutionally protected activity; the government always has to prove they were not. And since it's a "fundamental" right, accused persons might not not even have to affirmately claim they were, let alone proving it. So that's why I kind of liked Measure 3.
I've also represented doctors and nurses facing possible suspension or revocation of their professional licenses, and I believe this new fundamental constitutional right will come into play most of those types of professional licensing cases, too. Isn't there a doctor from Fargo who was charged with possession of marijuana not too many years ago? If we'd had this provision in our constitution back then, the Board of Medical Examiners would have had to prove he didn't have a sincerely held religious belief that smoking marijuana is a sacrement.
But upon further reflection, I've started to wonder if maybe Measure 3 is being pushed by people who want to force North Dakota's judge's to give absolute respect for Sharia law, and for some radical interpretations of the Qu'ran. If you think about it, Measure 3 does not just protect people who hold popular religious views; it also protects people who act upon any religious views. That will include followers of the Bible, followers of Sharia Law, the Qur'an, the Jedi Church, Discordianism, Koreshanity, Raëlism, or the Church of the Flying Spagetti Monster. You won't get to decide which religious laws other get to violate; they will get to decide. And it won't matter, at all, that their belief of beliefs are "misguided." All that will matter is that their beliefs are "sincerely held." If they read the Bible and believe it's okay to stone people to death if they same something blasphemous (see Leviticus 24:16), there will be no criminal punishment. In every domestic violence case, the cops and the prosecutors are going thave to prove the accused was not operating under a "sincerely held" (though completely misguided) belief that Surah 4.34 of the Qur'an authorizes (or even mandates) wife beating.
I'm convinced this measure is being pushed by people who want to force North Dakotans to accept domestic violence as an acceptable practice.
Here's the closest thing to coverage of Measure 3 that I can find online (though there is an expired, unreadable story or two on Forum Comm websites, a worthwhile AU.org perspective and one blog from Tennessee):
"Where it`s already in effect it`s working very well and again as I said people are genuinely satisfied with the balance that this kind of measure would, does, create. I think we would be very happy in North Dakota as well," said Bishop David Kagan with the Bismarck Catholic Diocese.
Bishop Kagan says it is and gave an example from two years ago when he was serving as a priest in Rockford, Illinois, when their legislature passed a law to require all social service agencies to offer same-sex adoptions.
"All six of the Catholic diocese had to give up any kind of adoption services."
The bishop recognized that nothing like that is currently happening in our state, but says this measure would protect religious organizations from situations like that in the future.
Perfect. With all due respect to the Bishop, his point seems to be that Measure 3 is a great solution in search of a nonexistent problem. And it's a radical solution with incredibly broad language that nobody has really thought about or debated.
Now, I'm guessing if you're a reporter for KFYR, you're probably not smart enough to take on the task of writing about this measure at all, let alone asking intelligent questions of a Bishop about it. But, with that said, let me suggest to you -- and the KFYR reporter -- that there are some questions that should have been asked of Bishop Kagan.
Here's where I'd start with Bishop Kagan:
Question #1: From what you say, I gather this language is already in effect in the constitutions of other states, and that "it's working very well." So... where exactly is this language already in effect? Which states have this same language in their Constitutions? And how long has this language been in effect in all these other states. (I've looked, and I can only find a couple other states where this language has even been proposed. (Kentucky [as a law] and Colorado [as a constitutional amendment]). I haven't been able to find evidence that the language has been adopted in any state. It has been adopted in some federal legislation, but laws are not the same as constitutional amendments; laws do not express fundamental constitutional rights.)
Question #2: Surah 4.34 of the Qur'an has been interpreted by some misguided souls as allowing men to beat their wives. But the fact a "sincerely held religious belief" is "misguided" is not relevant to the question of whether or not a behavior is constitutionally protected. With that in mind, is Measure 3 just a way to try to make wife beating legal for those misguided people? If not, are you okay with the possibility it could do that if you get the other things you're hoping to get out of the measure, like more power to discriminate against same-gender couples and women who use contraception?
Question #3: You understand that Measure 3 applies equally to "sincerely held" Muslim beliefs and Rastifarian beliefs and traditional Mormon beliefs (whether "misguided" or not) as it does to modern, popular Christian and/or Catholic beliefs, right?
Question #4: What activities authorized by Sharia Law do you most look forward to watching North Dakota courts protect after this amendment is passed?
I'd really like to know the answers to these and other questions. I'm guessing he's a really nice person, but I really have to wonder whether he -- or any of the proponents of Measure 3 -- have thought about the can of worms they're opening up.
As a criminal defense lawyer, I look forward to Measure 3 granting new, fundamental constitutional rights to accused persons. It could completely revitalize the practice of criminal law in North Dakota. There will be a brand new defense to every criminal charge, and I'd look forward to that.
On the flip side, as a citizen whose not completely familiar with all the crazy -- though "sincerely held" -- religious beliefs out there, I think we should all be at least a little bit scared.
D.E. Bishop said:
elitist liberal scum said:
Cindy Klein said:
Joe Ferrara said:
Joe Ferrara said: