[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.

Measure 3

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.

KFYRTV.com

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.

Comments (25)

staylor said:

More than a little scared I happened to be looking up polling places earlier today and saw this proposed amendment for the first time. I was horrified! And I couldn't believe I hadn't heard about it before: this is an incredibly dangerous bit of language they are proposing as a constitutional amendment. I hadn't thought of domestic violence (but I agree that's a very valid example); my first thought was of all the wackos that attack Planned Parenthood workers or act out criminally against the abortion issue. Or what about those that use their religion to justify their racism and homophobia and take matters into their hands to beat someone up? It's their religious view! This hideous amendment could conceivably allow these to go unpunished because all the perpetrator would need to do is say their firmly held religious beliefs justify their actions. That is unconscionable and I can't believe this will just slip by undebated and has a good chance of being passed by voters who will read it for the first time in the voting booth and superficially think "huh, I believe in protecting religious (i.e., Christian) freedom!" And I don't think this even needs to be boxed into a loaded discussion of Sharia law— plenty of good 'ol red-blooded American Christians firmly hold the view of "keeping the wife in line". The federal constitution was very wise in their strict division of church and state; there is no reasonable case that would justify proposing an amendment like this. Thier one example was of Catholic churches that quit doing adoptions because of their homophobia and refusal to adopt to same-sex partners. Why would we want to legalize racism, sexism, and the like? If an organization wants to follow antiquated views, then they have the right to shut down if they want to discriminate. I want no part in legitimizing that way of thinking and our constitution should have no part in it either. I can't think of any good it would do—or any legitimate need for it— but I can think of plenty of wrong it can do. Yes, I'm much more than a little scared that this would pass.

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April 27, 2012
Votes: +2

Marty said:

Cuts both ways. I'm with you, Chet - I can see some real benefits in Measure 3. For one, I think it obligates the State to recognize same-sex marriages for anyone (like me) who has a sincerely-held religious belief that gays should be permitted to marry. Even if the State were to claim it has a compelling interest for banning same-sex marriage, there are countless less-restrictive ways to further those interests. My only reservation is that atheist gays still won't be allowed to marry. I guess we can fight that battle, later.

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April 27, 2012
Votes: +4

Chet said:

	Very cool Very good point. All we need is one county official to support gay marriage for "seriously held religious reasons." Then they could start issuing marriage licenses, and there's nothing anybody could do about it. Should be fun!
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April 27, 2012
Votes: +1

Chet said:

What about this...? Apparently in some religions, the right to rape your wife after she has died, and to marry girls as young as 14, and to take away female's education rights... all are based on some folks sincerely held religious beliefs. Egypt’s National Council for Women (NCW) has appealed to the Islamist-dominated parliament not to approve two controversial laws on the minimum age of marriage and allowing a husband to have sex with his dead wife within six hours of her death according to a report in an Egyptian newspaper. The appeal came in a message sent by Dr. Mervat al-Talawi, head of the NCW, to the Egyptian People’s Assembly Speaker, Dr. Saad al-Katatni, addressing the woes of Egyptian women, especially after the popular uprising that toppled president Hosni Mubarak in February 2011. She was referring to two laws: one that would legalize the marriage of girls starting from the age of 14 and the other that permits a husband to have sex with his dead wife within the six hours following her death. According to Egyptian columnist Amro Abdul Samea in al-Ahram, Talawi’s message included an appeal to parliament to avoid the controversial legislations that rid women of their rights of getting education and employment, under alleged religious interpretations. english.alarabiya.net I wonder if the Measure 3 proponents have thought about this. Maybe they have.

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April 27, 2012
Votes: +0

D.E. Bishop said:

	... Raping his dead wife? OMG, that is really sick!
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April 29, 2012
Votes: +0

elitist liberal scum said:

	... My own religion glorifies the spiritual transformation of driving a motor vehicle while intoxicated.
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April 30, 2012
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Brent said:

... I think the state has a compelling interest to not allow women to be beaten. I also think, if the legislature really really wanted to, they could invent a compelling interest to withdraw funding for church-sponsored adoption programs, which the people of ND could then rectify by voting those people out and replacing them with legislators who would reverse that decision. This measure is unnecessary.

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May 03, 2012
Votes: +0

Chet said:

... to not allow women to be beaten... Hey Brent: Let's think of this a different way. Parents are allowed to use corporal punishment on children. Spanking is okay. Some other painful things are acceptable when parents do them to children. A child is less able to defend him/herself than a grown adult. Why is corporal punishment an acceptable means to get a child under control, but not acceptable to get a spouse under control? Especially when your religion tells you you should use corporal punishment to keep your spouse in line?!? Here's another thought for you: Because Measure 3 is so horribly written, no Court will be able to issue a blanket order saying "all domestic violence can be restricted despite Measure 3 because there is a legitimate governmental interest in ending domestic violence." Why? Because the measure uses the language "the specific act or refusal to act." Courts (or juries) are going to have to consider the details of the specific act(s) in each and every case, because there is no one, single act that constitutes "domestic violence." In other words, one hit might be constitutionally protected (e.g. a relatively mild religiously-authorized corporal punishment) while a slightly harder hit might not. I don't even think you could adopt a rule like "No blood, no foul." This is why I am confident that all criminal cases -- and not just domestic violence cases -- will have to have the Measure 3 issue addressed on a "case-by-case" basis because of that "specific act" language. That's why it will be harder to get convictions, it will be better for criminal defense lawyers, it will burden our judges and courtrooms and we may eliminate our prison crowding problem. Maybe there will be a "Measure 3" hearing before any case can go to trial. Maybe it will be a jury question (this is my preference). But it's not like this constitutional provision can or should just be ignored in some cases. We're talking about a new, fundamental constitutional right here. It'll have to be addressed in every criminal case and many administrative actions. Win - win - win. Good job, Measure 3 people!

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May 03, 2012
Votes: +0

Cindy Klein said:

Call last night I received a call last night from 936-1579 garnering support for Measure 3...I was not familiar and when I asked she told me it was the reinstatement of religious freedoms measure...I said NO WAY and hung up. I was tired and that is not what I usually do...Usually I ask a lot of questions they cannot answer and put them on the spot. So, there is a phone bank action in place in case some of you get a call. FYI.

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May 11, 2012
Votes: +0

Jean said:

	... Where can I get a vote NO sign on Measure 3?
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May 11, 2012
Votes: +0

hockeyfonzie said:

	... Check with keep it local nd. There is a facebook page. http://www.facebook.com/KeepItLocalND You can also check with Chad Oban. In Dickinson we can only put them up 30 days before the election but if you want one here go to Bosch Lumber. On Thursday they had 50.
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May 12, 2012
Votes: +0

Chet said:

	Measure 3 Yard Signs I haven't seen Measure 3 yard signs. Don't know if they exist. (Do they?) You might want to check with the folks who run this website: http://ndagainst3.com/ Otherwise, I'd have no ideas.
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May 12, 2012
Votes: +0

Joe Ferrara said:

... I think this discussion thread is composed of a series of dubious hypotheses that are based on an unsupported assertion. Chet asserts that, if measure 3 passes, there is likely to be a series of court cases in which defendants argue, that “God made them do it.” In the absence of data, Chet’s argument seems reasonable. If ND was the first state to implement such a law, Chet would have a point. The problem is that the facts don’t support Chet’s assertion. Thirty-one states already have equivalent laws and some of those states have had those equivalent laws for a long time. If Chet was right, Minnesota and the other thirty states would have volumes of case law in which the defendant successfully used the "Church of Mohammed Al Sluggo the blessed wife-beater" argument. It simply hasn’t happened. Chet’s assertion is reasonable but in my opinion, the experience of 31 states trumps his reasonable assertion.

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June 04, 2012
Votes: -1

Chet said:

Two Questions Prove Mr. Ferrara is wrong... Name ONE state that has adopted a constitutional amendment that reads exactly like North Dakota's measure 3. Just one. When you're done admitting there is no such state, then tell me where there is one state that has adopted a constitutional amendment that is nearly identical to North Dakota's Measure 3. Just one. And, if you can, please give us a link to even one such constitutional amendment. The problem with arguments like yours, sir, is that they are based upon lies. It is a pure fiction that 31 (or any) states have adopted Measure-3-like constitutional amendments. It hasn't happened. Measure 3 will make North Dakota a mad scientist's establishment clause laboratory. And I've said it before... I'm kinda looking forward to it. I think it will be incredibly helpful in helping this state stop so much money on jails and prisons. In the meantime, Joe, you need to know that most of our readers know better than to believe when people come in here and lie about how many states have adopted Measure-3-like constitutional amendments. Your arguments would probably be better received at websites where people aren't smart enough to know when they're being lied to. I can think of a right-wing blog where your fiction might be better received.

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June 04, 2012
Votes: +2

Joe Ferrara said:

... Yikes, Calm down Chet. Let’s take this one step at time. Step 1: The Supreme Court struck down the Religious Freedom Act . http://articles.philly.com/1997-06-26/news/25524990_1_religious-freedom-restoration-act-religious-liberty-religious-groups. & http://en.wikipedia.org/wiki/R...ration_Act Step 2: Various states reacted to that in different ways. Here’s a sample: Alabama: http://www.legislature.state.a...170364.htm Arizona: http://www.religious-freedom.org/rflawaz.html Connecticut: http://www.essexuu.org/ctstat.html Florida: http://law.onecle.com/florida/...61.03.html Idaho: http://www.legislature.idaho.g...73-402.htm Illinois: http://law.justia.com/codes/il.../2272.html New Mexico: http://www.churchstatelaw.com/statestatutes/NM.asp Oklahoma: http://essexuu.org/okstat.html Rhode Island: http://www.lawserver.com/law/s..._42-80-1-3 South Carolina: http://www.scstatehouse.gov/code/t01c032.php Step 3: States approach this problem differently. I certainly understand that these are not constitutional amendments. You are absolutely right about that. However, they perform basically the same function and, if it was as big a problem as you suspect there would have been lots of case law. Here are two nice discussions of various approaches to the problem: http://www2.law.ucla.edu/volokh/relfree.htm & http://www.nesl.edu/userfiles/file/lawreview/Vol44/2/Forlizzi.pdf

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June 05, 2012
Votes: +0

Chet said:

The Takeaway... The takeaway from your comment, Joe, is this: No state has done what Measure 3 will do. Measure 3 is an experiment. What you haven't responded to -- and what nobody else has ever responded to -- is my characterizations of how this measure will be handled by lawyers and judges in the trenches. I have proposed (repeatedly) that it creates a new fundamental right for (for example) every person charged with a crime or infraction or licensing violation, and that courts and administrative agencies will have to come up with new procedures to deal with the new fundamental right. I have proposed that it will be handled in criminal cases by adding jury instructions in every case. Jury Question #1: "Do you find, beyond a reasonable doubt, that the state has proved it has a compelling governmental interest in burdening the defendant's specific act or refusal to act of ________________ (example: refusing to pay 100% of his taxes)?" Yes ___ No ___ Jury Question #2: "Do you find, beyond a reasonable doubt, that the state has proved it has used the least restrictive means in achieving its claimed goal in prohibiting the defendant's specific act?" Yes ___ No ___ Jury Question #3: "Do you find, beyond a reasonable doubt, that the state has proved the Defendant did not have a sincerely held religious belief that his specific act or refusal to act was justified?" Yes ___ No___ If the answer to any of those three questions is "No" then the state has not proved its case. Since we are talking about a new fundamental right, and the new fundamental right is fact-specific (see "specific act or refusal to act" language in Measure 3). The analysis has to be fact-specific, and so it is a jury question. It has to be. Pro-Measure 3 advocates have NEVER addressed this. They have never talked about the practical impact -- the "in the trenches" handling -- of Measure 3. That's because I'm right. Or it's because the air is thin up in the ivory tower. Prosecutor's jobs will be made much, much more difficult. This will be a boon for criminal defense lawyers and their clients. It will help clear out our jails and prisons. I'm for that. If I'm wrong, help me see the light. Don't give me two decades of irrelevant "least restrictive means" analysis, or point me to other states that DO NOT HAVE a Measure-3-like constitutional amendment. Please, I beg you: Tell me where I'm wrong about how this measure will have to be handled in real court cases (and not in some big-brained, out-of-state, Catholic law school professor's hypothetical). (One last thing: I apologize your comment wasn't posted immediately. My commenting system makes me approve comments that have a certain number of hyperlinks in them. It's for SPAM protection and it even applies to my own posts. Your comment exceeded that limit and I didn't see it until this morning.)

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June 05, 2012
Votes: +0

Marty said:

	... Go back to praying the gays away, Joe. Leave our Constitution out of it.
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June 05, 2012
Votes: +0

Jason said:

	... Marty those kind of comments are stupid and add nothing to the conversation. Let's show some respect. Joe did nothing to be attacked. Let's not be a high schooler...unless maybe you are...
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June 05, 2012
Votes: -1

Chet said:

In Marty's defense There are two points Marty makes that are important: (1) this really is, in part, about teh gays and how leadership in the Catholic church says it feels about teh gays. I don't think anybody disputes that; and (2) there really is a legitimate question as to whether a church -- Catholic or otherwise -- should be meddling with a state's constitution. We all probably fantasize about a room full of powdered-wig wearing intellectuals (probably men) 200+ years ago, meeting in Constitution Hall, having a vibrant, intelligent, respectful debate about what a constitution and/or its amendments should look like, and the practical implications of each. Instead, as it turns out, it's a bunch of guys with long, flowing, colorful robes and post-hole-digger hats, and the smell of incense, with no discussion whatsoever of practicalities. That just doesn't seem right. You might not like either of Marty's points. But that might be because he's right.

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June 05, 2012
Votes: +1

Marty said:

... It was your comment which was stupid, Jason. Chet is 100% correct. Measure 3 is in very large part based on fear that someday our civilized society might recognize gay marriages. The Catholic Church is entrenching here to make sure, in that event, all Catholics -- not just the church itself, but all Catholics -- would be free to treat those married gay couple as if they are not married. The Bishop said so himself: Measure 3 is needed in order to make sure adoption agencies don't have to ever allow gay couples to adopt. In fact, if adoption agencies ever did have to allow gay couples to adopt, the Bishop says they would shut down their adoption services. http://www.kfyrtv.com/News_Stories.asp?news=56291 Yes, Jason, the war on gays is more important to the Bishop than helping orphans. That's what Measure 3 is about, Jason, in real terms. Measure 3 is not, as Joe would have you believe, merely some esoteric question about the proper standard of judicial review in 1st Amendment cases, on which 98% of us (Catholic or not) would neither understand nor have a qualified opinion. It is about easing the fear that a hotel owner or a landlord might be expected to provide a room to a gay couple. It is about easing the fear that a hospital might be expected to permit a gay spouse to the same visitation privileges as a heterosexual spouse. It is about "protecting the right" of all people like you who "don't believe in homosexuality" to discriminate against homosexuals. THAT'S WHAT MEASURE 3 IS ABOUT, Jason. I realize this, like many things here, creates a very uncomfortable cognitive dissonance. I'm sorry for that.

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June 05, 2012
Votes: +1

Jason said:

... Just as an FYI...I'm voting against measure 3. I'm just saying be respectful to Joe. Good grief. Joe made no comment about being pro or anti gay. He is just trying to have a discussion with you about it. He was very respectful. And then YOU go and attack. Telling him to go back to praying the gays away. How do you know he doesn't have a gay relative like son or daughter. I'm just saying be RESPECTFUL. He was and hence deserves it.

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June 05, 2012
Votes: +0

Marty said:

... Further evidence of cognitive dissonance, Jason. I don't say that as an insult; you just really need to be aware. You are so quick to the trigger to respond, when faced with new information and an opportunity to see things in a different way, when you could instead stop and assess whether you might have been wrong in the first place. As you were here. I did not disrespect or insult Joe. I made a few points in a brief and concise manner. Chet stated what two of those points were and I elaborated further. I was not disrespectful. If you weren't in such a hurry to defend your original erroneous thought, you might have realized that. Jason, I know one of two things: 1)Joe does NOT have a gay son or daughter, because he wouldn't be here defending Measure 3 if he did, because, as I wrote, Measure 3 is precisely about providing a constitutional right to discriminate against his homosexual son or daughter, and what kind of a parent would do that to their own son or daughter; or 2) oh my, Joe WOULD do that to his son or daughter????? And you're worried about how much respect HE is being granted here on this blog????? Such a parent, who would do that to their own son or daughter, deserves NO respect.

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June 06, 2012
Votes: +0

edgar said:

... The photo of the signing tells the story that words cannot. I have looked at this picture many times and am reminded of the terrible tragedy endured by our fellow Americans in the land of the free and the home of the brave. Far too often of late I find myself ashamed that that land that I love has fell so far short of the mark----that is what the face of George Gillete should be saying to us. I believe that there are more of us who see the world through these eyes than is evident. I hope that I can be a part of making America as Intended. cn900 auto key programmer

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November 07, 2012
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rachal said:

	... hahaha... do u know what i think after i seen this picture? just like a prisoner burberry wallet
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November 26, 2012
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	... Sur la base de cette cheap christian louboutin shoes description détaillée, il a fallu peu de temps pour identifier les chaussures: Katie porte les ??Heels Bracelet Twist" de Martin Margiela. Les talons sont dotées cuir noir, bracelet boucle de fixation à, c??té de découpe avec sangle découpée sur le c??té et bout pointu.
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April 07, 2013 | url
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