Federalism and religious liberty

American commentators—if not the larger public—seem to have rediscovered federalism in the wake of the Supreme Court’s decision that overturned Roe v. Wade and returned regulation of abortion to the states. There are many ways that states differ from one another, and these differences have significant impact on the experiences of citizens across the nation.

One often overlooked aspect of this diversity of domestic experience concerns religious liberty. The United States Constitution famously limits the ability of the federal government to constrain religious expression: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Religious liberty is thus the first freedom expressed in the Bill of Rights and a cornerstone of the American experiment in ordered liberty.

This constitution limitation doesn’t mean, of course, that the federal government has nothing to do with protecting religious liberty for all Americans. Federal law and regulations set the larger and generally uniform foundation for different legal environments across all 50 states. But within this larger federal context, a great deal of room remains for states to treat different areas of life in different ways, including areas related to religious liberty.

A new project called Religious Liberty in the States (RLS) examines these differences in the legal protections offered for religious expression and free exercise across all 50 states. RLS is the first ever empirical index measuring the safeguards present in state law as considered in 29 distinct items. These items range from religious exemptions for childhood vaccinations to ballot access and the presence of state-level Religious Freedom Restoration Acts (RFRAs). Many of the items are related to marriage solemnization and health provision, areas where there has been great political conflict over attempts to protect the rights of those who affirm traditional biblical and religious morality.

The results of this inaugural edition of the RLS index might be surprising. Two states with quite different political and demographic profiles stand out above all the rest in providing legal safeguards for religious exercise. Mississippi comes in first, with a score of 82 percent, and Illinois comes in at a close second with a score of 81 percent. These numbers represent the percentage of items covered in different states across the range of the 29 different items measured by the index.

This means that even the top two states, which outperformed all the other states by a wide margin, have significant areas for potential improvement in their responsibility to protect the religious rights of their residents. The gap between Mississippi and Illinois and the rest of the states is significant: the third state, New Mexico, is 20 points behind the leaders. And the performance of many other states is truly lamentable: California, West Virginia, and New York comprise the bottom three, and each one has codified under 20 percent of the possible safeguards identified in the RLS project.

The good news is that, in addition to providing scores for each state, RLS also provides concrete resources for every state—whether they rank at the top, middle, or at the bottom—to improve and strengthen the legal protections offered to the people of their state. A perfect score is entirely achievable: each of the items scored in the RLS index is based on a legal provision that already actually exists in at least one state somewhere in the nation. So any state that lacks a safeguard can look to what other states have done and adapt and apply that legislation to their own context.

RLS is a project of the Center for Religion, Culture & Democracy at First Liberty Institute, where I serve as director of research. One major goal of this project is to educate the public about the current state of domestic religious liberty. Given America’s federal system and the broader national context, religious liberty is a right that is more or less protected—depending where you live in America. This means that there can be real diversity in what types of protections are offered by different states.

But it also means that different states can provide models and examples for other states for negotiating the federal context. Each state thus becomes a kind of laboratory of democracy for the protection of religious liberty. And tools like RLS can help inform policy makers looking for ways to enhance and promote the flourishing of the people in the states they serve.

To get an idea of where we might be going, we need a good sense of where we are, and RLS is the first comprehensive and methodologically rigorous attempt to do this for the legal safeguards for religious liberty across all 50 states. Let’s hope this project opens some eyes in all 50 states.