Religious liberty at the state level

When Americans think of religious liberty, it is natural to look first to the federal government. After all, the First Amendment to the U.S. Constitution is a remarkable expression of such liberties, and federal legislation as well as Supreme Court cases have helped shape the history of religious freedom over the centuries. But America’s structure of federalism is remarkable for other reasons as well, and this includes the ability of individual states to go beyond the federal baseline for protecting religious liberty.

Now in its third year, Religious Liberty in the States tracks the legal safeguards that states enact to protect the free exercise of religion. The annual project includes an index ranking and a growing list of protections across the country. For the 2024 project, 39 protections are measured in all 50 states. No single state has all. In fact, some protections have only been enacted in a few states, meaning every state has room for improvement. And since the first iteration of the RLS project, several states have taken significant action to improve their legal protections of religious liberty.

Florida, for instance, moved up from eighth place in 2023, when it had 60 percent of the protections measured, to second in 2024, when the Sunshine State had 73.2 percent of the safeguards. Florida has added protections for public and private hospitals that refuse to perform certain kinds of sterilization procedures and refrain from providing contraceptives. Roman Catholic hospitals that desire to remain faithful to church teachings are thereby protected at a greater level than before. Florida also added protection for houses of worship, preventing them from being closed by executive order or administrative fiat when other institutions might remain open. The unequal treatment of churches came to the fore during the COVID-19 pandemic, when many governors and state administrators ordered them to close, even in some cases while theaters, bars, restaurants, and other venues could remain open.

Montana, which ranked 20th in 2023, moved up to third place in 2024. This significant improvement is due in large part to its adoption of a general conscience provision, which provides broad protections for healthcare workers in a variety of situations. For example, if there is a particular procedure that a nurse or doctor cannot in good conscience participate in, these kinds of safeguards allow them to opt out without retribution or punishment.

Even when states don’t move up to the top of the rankings, actions by lawmakers can have important consequences for improving protections for the residents of their states. West Virginia was ranked dead last in 2023, with only 14 percent of the possible provisions identified in the index that year. West Virginia remains in last place this year, but its adoption of a Religious Freedom Restoration Act raised its score by more than 10 percentage points, and that’s quite significant. A RFRA is the single most important protection a state can offer, providing defense against intrusive state action across a broad swath of life.

North Dakota also added a RFRA between 2023 and 2024, helping to raise its score to 51.5 percent and placing it at 12th in the latest rankings. Twenty-five of the 50 states now have RFRA-style protections either in statutes or constitutional provisions. For the states without a RFRA, passing one remains the most important way to provide better religious liberty protections.

For the second year in a row, Illinois remains at the top of the RLS rankings, with a score of 80.4 percent. But while states like Florida, Montana, North Dakota, and West Virginia are actively working to increase legal protections for religious liberty, Illinois is in danger of falling in the rankings. Indeed, its overall score has dropped slightly and there seems to be little momentum at the state level for passing new legislation to add the protections it continues to lack. If some progressive activists were to get their way in the Land of Lincoln, many of the protections enacted historically could be stripped away. Religious liberty shouldn’t be a partisan issue, but sadly, the polarization that America has experienced in recent years has often turned common sense and bedrock American principles into fodder for scoring political points.

Whether you live in a state like Illinois, Florida, or Montana that tops the RLS rankings in 2024, or a state like West Virginia that continues to struggle to protect religious liberty with strong legislation, there is room to improve such safeguards in every state. I hope that greater recognition of what other states have done to protect religious liberty will spur others to adopt similar protections where they are lacking and even find new ways to safeguard religious liberty in the future.