Religious Liberty in the States
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When Americans think about religious liberty, our minds naturally turn to the protections offered by the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This amendment, and related federal legislation, offer important protections, but there are numerous areas in which states are free to protect, or not protect, religious liberty.
The Center for Religion, Culture & Democracy’s (CRCD) project Religious Liberty in the States (RLS), now in its third year, measures 39 distinct ways that states may, but don’t have to, protect religious liberty. For instance, every state in the union requires children to be vaccinated before attending public (and sometimes private) schools, but 39 states provide exemptions for families that have religious objections to vaccinations. On the other hand, only one state protects the ability of for-profit businesses to decline to participate in ceremonies to which they have religious objections.
After determining whether states have statutes protecting each provision we measure, we aggregate protections into sixteen “safeguards” which are then averaged to produce one index score per state. The index allows us to rank states and track changes in religious liberty protections over time. Source data, including hyperlinked citations to state statutes, are published online at religiouslibertyinthestates.com. This permits legislators, activists, and interested citizens to examine in detail how well their states protect religious liberty and to find existing examples of statutes they could adopt to better guard what many founders called “the sacred rights of conscience.”
One might assume that conservative states would do a better job protecting religious liberty than progressive states. This is partially true, but it is noteworthy that very progressive Illinois does a better job protecting religious liberty than any other state, having adopted 80 percent of the possible protections. Strongly conservative West Virginia, on the other hand, is dead last. It has enacted a mere 25 percent of the protections we consider.
Focusing on the extremes of Illinois and West Virginia may be misleading. More conservative states do, on the whole, tend to have more robust legal protections. Nevertheless, legislators in all states still have a great deal of work to do, as even the top ten states all lack between 20 percent and 47 percent of the possible protections.
It is the case that conservative states today are more likely to pass religious liberty protections than progressive states. Some of the most remarkable changes from RLS 2023 to 2024 are the significant improvement in scores in Florida, Montana, and even West Virginia. Florida now has a safeguard score of 73 percent (compared to 60 percent in 2023), Montana has a safeguard score of 66 percent (compared to 46 percent), and although it is still in last place, West Virginia’s safeguard score improved from 14 to 25 percent. Many of these changes are a result of religious liberty laws passed by these states in 2023.
If conservative states are more likely to protect religious liberty than progressive states, why does Illinois remain in first place? Simply put, almost all of the state’s religious liberty protections were adopted between 1934 and 1998 during which time the state was far more conservative. Indeed, Republican presidential candidates won the state in eight of ten elections between 1952 and 1988, but they haven’t come close in the last eight elections. Similarly, Democrats have controlled both houses of the state legislature since 2003.
A recent study commissioned by the CRCD demonstrates that Illinois is resting on its laurels. Indeed, the state legislature has recently attempted to remove protections adopted earlier, and it has been less likely to adopt new protections. For instance, in the wake of the COVID-19 pandemic, eighteen states passed statutes that prohibit governments from treating houses of worship differently than similarly situated businesses. Illinois is not among them.
Even in states with a political climate friendly to religious practices, the establishment of formal legal protections is essential. For one thing, political climates change.
It seems likely to us that conservative states such as West Virginia, Texas, Louisiana, and Idaho do not have as many religious liberty protections because the climate in these states is far less hostile to persons of faith. But these and other conservative states should learn a lesson from Illinois and pass religious liberty statutes while it is still possible to do so. Although statutes may be repealed, it is far harder to remove a law from the books than to get one on it.
If Illinois was relatively conservative in the late twentieth century, Colorado was a bastion of political conservativism. Between 1952 and 2004, Colorado voted Republican in 12 of 14 presidential elections and Republicans routinely controlled both houses of the state legislature. The statewide environment was quite friendly towards religious liberty, and Colorado Springs was considered to be a Mecca for evangelicalism. And yet the state legislature did not take much religious liberty legislation when it had a chance, which helps account for the state’s abysmal 43rd place finish in RLS 2024.
It is possible, of course, that today’s Colorado legislature could return to the practices of the 1990s and pass religious liberty legislation. Alas, elected and appointed officials in the state are going in the opposite direction. Just ask Jack Phillips, who just last month returned to court yet again in an attempt to protect his ability to freely exercise his religion.
Even in states with a political climate friendly to religious practices, the establishment of formal legal protections is essential. For one thing, political climates change. But there are other good reasons for doing so. Even in conservative states, cities or counties pass laws or ordinances that may limit the ability of citizens to act upon their religious convictions. In Texas, for instance, cities including Austin, Dallas, and Plano (home of First Liberty, of which the Center for Religion, Culture & Democracy is a part) have laws banning discrimination on the basis of sexual orientation in places of public accommodation. Such ordinances could be used to attempt to coerce the Texas equivalent of Jack Phillips to act against his religious convictions.
A statewide ordinance protecting the ability of such professionals to decline to participate in ceremonies or events to which they have sincere religious objections would alleviate that potential infringement of religious liberty.
Today, political conservatives are far more likely to favor religious liberty than political progressives. But this wasn’t always the case. When the Supreme Court limited the extent to which the First Amendment’s Free Exercise Clause protects religious liberty in 1990, Democrats and Republicans came together to pass the Religious Freedom Restoration Act (RFRA) of 1993 to ensure that religious freedom is robustly protected. It is noteworthy that the bill was passed in the House without a dissenting vote, was approved 97 to 3 by the Senate, and was signed into law by President Bill Clinton. Seven years later, Congress passed without a recorded dissenting vote the Religious Land Use and Institutionalized Persons Act (2000). Among the chief purposes of this bill was to ensure that prisoners can act according to their religious convictions whenever possible.
Religious liberty shouldn’t be a Republican or a Democratic issue. Historically, it has been a fundamental American value. RLS’s website contains links to every religious liberty statute we consider, and these statutes serve as models—or at least starting places—for related legislation in states that lack them.
This article was first published in Law & Liberty on July 19, 2024
