Religious Liberty In The States

Mark David Hall (Regent) & Paul Mueller (American Institute for Economic Research), Religious Liberty in the States:

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. ...

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.

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.

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