How Well Does Your State Protect Religious Liberty? – Joe Carter

The Story: A new index provides the first-ever state-by-state ranking of religious liberty in the U.S. Is your state doing enough to protect your freedom of religion?

The Background: The Center for Religion, Culture, and Democracy (CRCD), an initiative of First Liberty Institute, has released their inaugural Religious Liberty in the States (RLS) index. The index measures laws and constitutional safeguards for religious exercise in all 50 states and provides them with a numerical ranking. As the CRCD notes, “Unlike other indexes of religious liberty, this indicates the extent to which written law allows people to live according to their religious beliefs, rather than assessing what people do with religious liberty or attitudes toward religion in the states.”

The index uses the term “safeguard” to describe state laws that provide freedom from artificial barriers that would otherwise reduce one’s capacity for religious exercise. For 2022, the RLS index includes 29 items that contribute to the following 11 distinct safeguards, which have been placed into six groups:

1. Absentee Voting: At times a religious person may find voting at a polling place on election day conflicts with his or her religious beliefs, for example, due to a religious observance. The absentee voting safeguard protects the ability of that individual to participate in the election at another time or by other means.

2. Childhood Immunization Requirements: In 2022, all states require immunization of school-aged children. This safeguard captures whether or not the state allows for any nonmedical exemptions, whether based on religion or broader philosophical reasons.

3. Health-Care Provision—General Conscience: This safeguard protects health-care providers and/or health-care institutions in their right to refuse to provide any medical care procedure based on conscience.

4. Health-Care Provision—Abortion Refusal: This safeguard protects health-care providers and/or health-care institutions in their right to refuse to provide services related to an abortion.

5. Health-Care Provision—Sterilization Refusal: This safeguard protects health-care providers and/or health-care institutions in their right to refuse to provide services related to sterilization.

6. Health-Care Provision—Contraception Refusal: This safeguard protects health-care providers and/or health-care institutions in their right to refuse to participate in contraceptive procedures or the distribution of contraceptives..

7. Health Insurance Contraceptive Mandate: This safeguard captures whether states maintain the existing federal exempt space for religious employers, either by having no state-level contraceptive mandate or by offering broad exemptions to their own mandate, or if the state effectively reduces that space with its own mandate and no or narrow exemptions.

8. Marriage & Weddings—Religious Entity Refusal: This item tracks whether there are safeguards for clergy to refuse solemnization of marriages that violate their religious belief or doctrines.

9. Marriage & Weddings—Public Official Recusal: This item tracks whether there are safeguards for public officials to refuse solemnization of marriages that violate their religious belief or doctrines.

10. Marriage & Weddings—For-Profit Business Nonparticipation: This is a safeguard for businesses that engage in solemnization, recognition, association, or celebration of marriages or weddings that allows them to refuse services that violate personally held religious or moral beliefs.

11. Religious Freedom Restoration Act: In 1997, the decision in City of Boerne v. Flores found the federal Religious Freedom Restoration Act (RFRA) unconstitutional in application to states and therefore only relevant to federal actors and acts. Since then, many states have enacted laws, patterned after the federal RFRA, that emphasize protection from the burden of government action that many recognize can follow from religion-neutral laws.

If the state had a law that provides safeguards for religious liberty (such as abortion refusal), it received a score of 1 in that category. If no safeguard exists, the state scored a 0. The average score of the 11 safeguards was used to determine each state’s overall score (as a percentage), and those overall scores were used to determine the state rankings.

For example, the top-ranked state is Mississippi with a score of 82 percent (with nine out of eleven safeguards), while the state in the middle of the pack—Texas at #25—scored 39 percent (realizing at least parts of five out of eleven safeguards). The RLS provides a summary of how each state measures up to the potential for protecting free exercise.

What It Means: If you’re a nurse, can your hospital fire you for refusing to participate in an abortion? If you’re a pastor, can you legally refuse to perform a ceremony for a same-sex couple? The answers to those questions depend on which state you live in.

Many Christians in America are surprised that religious freedom protections vary from state to state. For the last several decades, we’ve thought of religious liberty as a federal issue to be resolved by the judicial system, especially the Supreme Court. This is a reasonable assumption since the First Amendment establishes a right to the free exercise of religion at the national level. But while there are numerous federal statutes, court orders, and regulations that protect religious liberty, such federal provisions often leave considerable space for issues to be decided at the state level. As the RLS notes, “All fifty states codify at least some additional protections of free exercise, carving out exclusions and exemptions for religious individuals or organizations.”

The index also reveals we can’t make assumptions about how protected we are based on whether we live in a “red” state or “blue” state. Both types of states can be found at the top and bottom of the rankings. For example, one of the reddest states, Mississippi, ranked first but was followed closely by the blue state of Illinois. As could be expected, some of the bluest states ranked near the bottom: California was third to last at #48 and New York came in at #50.

However, some blue states such as Washington (#5), Maryland (#8), Connecticut (#11), and Maine (#14) scored in the top third—beating out red states like Arkansas (#28), North Dakota (#37), and South Carolina (#38).

What makes this index particularly useful for both citizens and lawmakers is that it shows what safeguards are already possible and workable. Lawmakers in states presumably more friendly to religious liberty should be able to pass legislation that is as protective as other states. If public hospitals in Connecticut are permitted to refuse to participate in abortion, why can’t a similar law be passed in Oklahoma?

The Center for Religion, Culture, and Democracy has produced a valuable resource that can educate the public about where state-level protections of religious liberty are lacking. Now it’s up to us to lobby our legislators so that in future editions of the index every state is tied for first place.

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