About the North Dakota Religious Liberty Restoration Amendment
The entire text of the proposed amendment is contained in the petition, as is required by law. It states:
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.
The amendment would not repeal or change any existing language in the state constitution.
The core of the amendment is the requirement that government cannot burden the exercise of religious belief unless it (1) is furthering compelling governmental interest and (2) has used the least restrictive means for pursuing that interest.
Prior to 1990, this was the standard of review for all laws that infringed upon the exercise of religious liberty. It is known as the "strict scrutiny" or "compelling interest" standard. In 1990 the Supreme Court changed this standard by holding that it did not apply to laws that infringed upon religious exercise if the law was content neutral and generally applicable. In other words, unless the law targeted religion, the law was valid. This amounted to a significant loss of protection for religion.
In response, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993. That law was meant to restore the compelling interest standard for all laws in the country. However, the Supreme Court later ruled that Congress wrote RFRA in a way that only applied to federal laws, not state and local laws. Congress took another shot at it and managed to pass the Religious Land Use and Institutionalized Persons Act in 2001. That restored the compelling interest standard for state and local laws dealing with land use and prisoners. States were left with restoring the compelling interest standard for all other state laws.
About 13 states have done that. Another 12 already had the compelling interest standard in their state constitutions.
The proposed amendment for North Dakota does not create any new rights. It basically strengthens existing religious liberty in the state by making it subject to the compelling interest standard.
On matters of religious liberty, the North Dakota Supreme Court has applied the same level of review the U.S. Supreme Court has applied when dealing with the First Amendment. Prior to 1990, that was the compelling interest standard. The North Dakota Supreme Court has not heard a religious liberty case since 1990. If it did, it could, following the U.S. Supreme Court, revert to the weaker standard. The amendment would make clear that the compelling interest standard would apply.
See also "Why we need the RLRA."