How A Radical North Dakota Ballot Initiative Could Allow The Religious Right To Ignore Traffic Lights

By Ian Millhiser/Think Progress

A North Dakota ballot intitative appears designed to allow anti-gay groups to openly defy bans on discrimination, and it is written so expansively that it could authorize thousands of North Dakotans to outright ignore everything from traffic lights to medical access laws — all in the name of supposedly protecting religous liberty. Under the proposed state constitutional amendment, which appears on state ballots June 12:

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.

To translate this a bit, many states and the federal government exempt religious believers from some laws that “substantially burden” their religious faith. The North Dakota initiative, however, targets any law that merely “burdens” a person’s religious faith. In other words, even the most minor inconveniences to religious practices would be suspect under the initiative. A person who is running late to church could claim it is illegal to make them obey traffic lights.

Worse, the law could have severe consequences for gay men, lesbians and other groups disfavored by the religious right. As law professor Marci Hamilton explains, the initiative appears worded to bypass the Supreme Court’s recent decision in Christian Legal Society v. Martinez which held that anti-gay groups cannot force state universities to fund them in violation of the university’s anti-discrimination policy.

Nor is the initiative the only example of the religious right trying to be above the law. An appeals court in New Mexico recently rejected an argument by an anti-gay business owner which could have exempted New Mexicans from any anti-discrimination law — including bans on race and gender discrimination — that they have a religious objection to. Similarly, conservatives ranging from the Catholic Bishops to Speaker John Boehner claim that the Constitution gives them sweeping immunity from laws they disagree with. Even conservative Justice Antonin Scalia has rejected the bishops’ view.