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How States Can Protect Religious Liberty
State legislatures must craft laws that safeguard freedom for all, defying partisan divides and transcending religious differences
By Sarah M. Estelle
The Supreme Court recently sided with website designer Lorie Smith in 303 Creative v. Elenis, affirming that the state of Colorado cannot require her to create websites celebrating same-sex marriage. This ruling provided clarity on an issue that was left unresolved by the Colorado General Assembly. Since the state had no existing laws safeguarding private business owners like Smith, she turned to the courts for confirmation that she could operate her business in alignment with her beliefs about marriage while not running afoul of Colorado’s anti-discrimination laws. Smith happens to be Christian, but the court’s decision also protects Jews, Muslims and any people who hold religious beliefs that would preclude their participation in some marriage celebrations—at least where their business activity is deemed “expressive” and so protected as speech.
Colorado is not unique in leaving the free exercise of religion unprotected in these situations. While 28 states have laws similar to Colorado’s public accommodations law that specify sexual orientation and/or gender identity as protected groups, none of these states protect for-profit businesses from being compelled to participate in wedding ceremonies or marriage celebrations that conflict with their religious beliefs. Only one state (Mississippi) safeguards the right of private businesses to refuse participation in marriages or weddings based on conscience.
Things aren’t much better for clergy; only 19 states allow clergy to refuse to solemnize or otherwise participate in a marriage ceremony that conflicts with their religion’s doctrines. Implementing statutory protections to fill these gaps is a prime example of how states can do more to safeguard religious liberty for all their residents. And by implementing better laws to protect religious liberty, states can minimize the need for litigation in cases like 303 Creative.
Measuring Religious Liberty Protection in the States
A lot of media attention and political buzz surrounds cases like these that rise to the level of the Supreme Court. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” so many of us are left thinking that, in practice, religious liberty is well protected at the federal level. But many policies that most affect religious liberty actually happen at the state level.
According to the statistical index and data project Religious Liberty in the States (RLS), there is significant variation in how well states protect the religious liberty of their residents. The latest edition of the index, a project of the Center for Religion, Culture & Democracy, takes into account 34 items constituting 14 distinct safeguards of religious exercise. While the variation across states (both in aggregate and in the details) is great, there is one notable similarity: All 50 states have room for improvement, with a majority of states having implemented less than half of the RLS safeguards.
Many states do well on at least some items tracked by RLS, however. The vast majority (47) safeguard the right of individual healthcare practitioners to refuse participation in abortion procedures; 44 states allow religious exemptions from the childhood immunization requirements all states have for school-aged children; 43 states allow private hospitals to refuse to provide abortion procedures; and 39 states offer absentee voting for reasons of religious observance (or for no reason at all).
Because the RLS index measures states against what other states are doing, it’s easy to see what states can do to improve their RLS index scores and, more importantly, how to expand religious liberty for their residents. RLS tracks many items that are currently implemented by very few states, but they can all be feasibly implemented because at least one state has done so. Items are selected for RLS if present in at least one state (like the aforementioned Mississippi law), so the states actually define the possible frontier of religious safeguards. They also provide examples of legislative language, now organized within RLS’s public data archive, for use by lawmakers and state-level religious liberty advocates.
One of the rarest safeguards, codified by only eight states, exemplifies America’s pluralist ethos: General healthcare conscience laws provide refusal rights to healthcare practitioners and institutions who would, for any reason of conscience, elect not to participate in a healthcare service. (Note that the decision is based on a healthcare procedure or service, not the identity of a patient.) These laws do not specify any particular religion, nor do they narrow the refusal right to a certain set of services. This is the sort of impersonal law fans of liberty should champion, but it has also been politically fraught, often being confused with discrimination.
But it’s not just the hot-button political issues that deserve more attention from states. Oddly enough, only 12 states require schools to excuse absences for students who participate in religious instruction. This should be low-hanging fruit, and since all states have compulsory schooling laws, it’s a no-brainer for those who want to preclude the state from prohibiting the free exercise of religion.
Protecting Fundamental Rights
For states that want to be proactive about ensuring their residents’ religious liberty, the best solution is for state and local governments to demonstrate their unwavering commitment to liberty, including the freedom to live according to one’s conscience. The most credible way to do this is by simply refraining from actions that encroach upon individual rights, thus allowing individuals and communities to freely and sincerely engage in religious practices in their daily lives.
In fact, by simply preserving private enterprise and respecting so-called negative liberty (especially by limiting the use of government’s coercive power), states can avoid the sometimes unpredictable and often widely dispersed burden of their laws without even focusing on religious liberty, per se. Upholding the fundamental right to liberty, even in the mundane case of ever-shrinking property rights (such as ownership of a wedding website), helps reduce the increasingly prevalent competing rights claims made in our pluralist society. In other words, safeguarding individual liberty both protects religious liberty and minimizes the occurrence of legal disputes and the need for controversial Supreme Court opinions.
In practice, though, states often pursue other objectives than safeguarding life and liberty, making the tradeoff between freedom and other perceived social goods. When these policies impose on individual liberty, as they often do, then the second-best strategy for protecting religious liberty is to carve out accommodations for religious exercise, broadly understood. The downside to this approach is that the carve-outs can appear to be unmerited religious privilege instead of an attempt to restore the liberty that belongs to everyone of any faith or of no religious belief at all. In this sense, accommodations of religious concerns don’t go too far; rather, they indicate where the freedom-protecting role of government has not gone far enough.
Protecting Religious Minorities
It also can be especially tempting to think of religious liberty as mostly a conservative, Christian concern. Christians historically have been the majority in the U.S. and, therefore, have been involved in shaping safeguarding laws in legislatures and courts. But it’s hard to find currently valid law on any state’s books that is explicitly limited to Christian applications. So the general legal protections of religion and conscience are broadly applicable to—and, one might imagine, especially important for—minority religionists. If community values and social norms are less effective for minorities than for more dominant religions, or if basic understanding is lacking, then such protections are even more valuable to minority religionists—as with laws that require public schools to excuse absences for all students’ religious observances, not just those that the school calendar has been formed around already.
State laws can protect religious minorities and avoid costly, potentially drawn-out legal battles. For example, when Zuri Wilson prepared to graduate from the Pearl Public School District in Mississippi earlier this year, she was initially told that she would not be permitted to wear traditional Cheyenne River Sioux Tribe regalia during commencement. However, because Mississippi statutory law requires that a “governmental entity may not prohibit an individual from wearing traditional tribal regalia or objects of cultural significance at a public event,” the school board reversed its decision. Because the state already protected this form of religious expression, this case never went to court, much less to the Supreme Court.
Admittedly, it’s difficult for state legislatures to know all the ways their laws might impose on any given religion or individual religious adherent. For this reason, states should state their safeguarding laws as broadly as possible and especially consider enacting a Religious Freedom Restoration Act (RFRA). These statutes prevent state and local governments from “substantially burdening” religious liberty, except when there is a “compelling” state interest to doing so and when the government employs the least restrictive approach.
Notice the flexibility of the “substantially burden” language and the potential scope, therefore, of RFRAs as they apply to any other state laws that are religion-neutral or generally applicable. This means that a state RFRA gives legal standing to anyone whose religious exercise is impeded by a current (or future) law. Presently, 24 states have this crucial safeguard, and West Virginia just passed its RFRA in March.
Despite what many might believe, current levels of religious liberty protection defy the typical partisan stereotypes. Comparing two states mentioned earlier—the blue state of Colorado (ranked 41st in RLS) and the red state of Mississippi (ranked 4th)—one might be tempted to conclude that legal protection of religious liberty is solely a conservative concern. But RLS findings reject this red-blue dichotomy. In RLS 2023, blue Illinois claims the top spot, having enacted 85% of the potential safeguards, and red state West Virginia scores only 14%. Moreover, the average RLS score for blue states is 44% and for red states is 45%, emphasizing that the value for religious liberty transcends political affiliations and should supersede partisan wrangling.
In an ideal world, all levels of government would hold true to the letter and the spirit of the First Amendment and simply “make no law” infringing upon the free exercise of religion. But even in this imperfect world, we should strive in that direction. When a state trades liberty for other goals, we should require that state to implement more explicit safeguards of religious liberty.
State-level statutory safeguards affirm the space that individuals enjoy for living according to their conscience. And while these safeguards also give standing in courts of law, an even better outcome is that they can avoid costly and contentious court battles altogether. This is especially valuable to minority religionists and otherwise marginalized people of faith, who may lack the social support of a community that understands their needs or the financial resources and organizational infrastructure that historically dominant religious groups have. By proactively establishing such safeguards, we ensure that everyone can live with a confidence and a truer freedom knowing that the consequences of their beliefs will not include legal retribution.