State Religious Freedom Laws Vary, and Are Crucially Important

on January 23, 2023

Religious Liberty in the States, a report on religious liberty protections in each of the fifty states, was issued by the First Liberty Institute’s Center for Religion, Culture, and Democracy in the second half of 2022. It offers statistics of each state’s religious liberty protections regarding twenty-nine issues of concern in thirteen general areas of religious liberty today. These are:

(1) state accommodations to allow absentee voting where in-person voting on election day would violate religious standards

(2) exemption from childhood immunization

(3) exemption from contraceptive mandates in the provision of health insurance

(4) existence of a state Religious Freedom Restoration Act (RFRA)

(5) general health care conscience protection

(6) conscience objection against participation in abortion

(7) conscience objection against providing sterilization

(8) against providing contraception

(9) clergy objection to same-sex marriage solemnization

(10) religious organization objection to facilitation of same-sex marriage solemnization

(11) protection of tax-exempt status

(12) right to recusal by public officials from same-sex marriage solemnization, and

(13) right of for-profit businesses to non-participation in same-sex marriage solemnization

Overall, the survey found that guarantee of absentee voting for religious reasons common (found in 40 states) and was favored more by liberal states (although New York and Rhode Island were exceptions). Most conscience protections, which was what the survey was primarily concerned with, were favored by conservative states. Exemption from childhood immunization requirements exist in all but five states (with California and New York among the five). Religiously based exemption from contraception mandates for health insurance exists in 33 states, generally the more conservative, but including Massachusetts, Minnesota, and Washington.

State Religious Freedom Restoration Acts are one of the most important measures of religious freedom in a state. These now exist in 23 states, although what they may protect varies by law and court decision. Generally, they exist in conservative states, although Connecticut, Pennsylvania, and Rhode Island have them. When the conflict between homosexual liberation and religious liberty entered its most intense phase in the mid-2010s, New Mexico’s Supreme Court denied that the New Mexico RFRA could protect a Christian photographer against the requirement to provide photography services for a same-sex wedding, even though the state RFRA binds state law not to infringe religious liberty under a strict scrutiny standard. That court’s judgment that the RFRA only bound state action, not private action, prompted the attempt to include protection for private businesses in a new Indiana RFRA in 2015. This then provoked a big business threat of economic war against the state, and subsequent surrender by the state’s Republican governor and state legislature, who amended the RFRA to exclude conscience objection against homosexuality.

While RFRAs are an important protection for religious liberty, perhaps the most basic general protection that can be given, they are only a balancing test, really empowering courts to decide if religious liberty should be granted in a particular case according to a “strict scrutiny” standard (religious freedom can only be denied to further a compelling state interest exercised in the least restrictive way). To secure religious freedom on a specific issue, such as abstaining from participation in abortion, the right to decline involvement (conscience objection) on that specific issue must be guaranteed in law. Five specific conscience objections were reviewed for the states (protection against involvement in abortion, sterilization, contraception, same-sex marriage solemnization by clergy, and same-sex marriage solemnization by religious organizations). Also surveyed was general conscience protection in the provision of health care (a sort of RFRA for health care).

This general conscience protection on health care is available in only five states (Alabama, Illinois, Mississippi, New Mexico, and Washington). This is a broad range of states ideologically, and perhaps reflects the fact that there was once general agreement in the nation concerning religious liberty and the RFRA standard. It was only disrupted by the sexual revolution, which demands no accommodation in law for traditional sexual morality (and also regards abortion as a “sexual” issue).

While all conscience protections are important to those who understand the objectionable activity to be sinful, perhaps one of the most crucial is individual conscience protection against involvement in abortion. It is protected in all but three states (Colorado, New Hampshire, and Vermont). The right of private hospitals not to perform abortions (and most crucially, with respect to religious freedom, religious hospitals) is protected in all but seven states. Two of these (Alabama and West Virginia) already ban abortion. This leaves actual vulnerability of religious hospitals in Colorado, Connecticut, New Hampshire, Rhode Island, and Vermont. There are many more (19) in which public hospitals have no protection, although this only indirectly affects religious freedom (in the possibility of individual complicity being required). Additionally, in some of these states (Alabama, Indiana, Iowa, Montana, Oklahoma, Pennsylvania, South Carolina, Texas, and West Virginia) state law bans, restricts, or may restrict abortion (given the outcome of litigation or legislation).

Another abortion related conscience issue is conscience protection in cases of medical emergencies (where abortion is recommended to protect the physical health of the mother). A surprising number of liberal or liberal leaning states do protect the conscience of health care providers whether there is a medical emergency or not (Connecticut, Delaware, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Washington, and Wisconsin). But it is unclear how intentional this is, since where protection against involvement in abortion exists it is absolute unless otherwise specified.

For conscience objections against things that do not involve the taking of unborn life (contraception and sterilization), there is far less protection at the state level. Only nine states provide this for individuals in the case of contraception. There are surprises, however. California, Colorado, and Illinois provide conscience protection for health care providers against involvement with contraception, while Alabama does not. But only six of these nine provide protections for private hospitals against providing contraception, and only two of those (Illinois and Mississippi) provide protection for public hospitals. Conscience protection against sterilization is more common, with 22 states providing such protection for individuals, including such states as Colorado, Massachusetts, and Washington. Of these, 18 have protection for private hospitals (including the same three), and 13 for public hospitals (including Colorado and Washington).

Religious liberty protections against requiring clergy to participate in same-sex weddings or requiring religious organizations to facilitate same-sex weddings show ironic results. Liberal states generally (but not always) provide protection against this, whereas conservative states generally (but not always) do not. But this is more reasonable than it seems. Liberal states will likely have sexual orientation and gender identity (SOGI) laws, whereas conservative states do not (although they may have local governments that do). Therefore, such protection is more likely to be needed. Further, objection to solemnization of same-sex weddings is the one religious liberty protection liberals commonly recognize (indeed, they may present this as adequate overall protection for religious liberty). It is also likely that courts would give both clergy and religious organizations First Amendment protection against having to perform same-sex weddings, so such specific protection is hardly needed in conservative jurisdictions. 

Protection of tax-exempt status of religious organizations against its denial due to objection to same-sex weddings exists in 15 states (generally the more liberal, and notably California). The right to recusal of public officials from same-sex weddings exists in Mississippi, North Carolina, and Utah, while the right of for-profit businesses not to facilitate same-sex weddings exists only in Mississippi.

State level protections of religious liberty are important because the high-profile litigation involving religious freedom has occurred at the state level. Since the federal Religious Freedom Restoration Act has been judged by the U.S. Supreme Court to apply only to federal law, states may burden religious liberty with generally applicable laws however they wish. Passage of the controversial Equality Act, which would introduce into federal civil rights law sexual orientation and gender identity (SOGI) categories, would gravely endanger religious liberty. To a far lesser degree, the recently passed Respect for Marriage Act (RFMA) threatens religious liberty as well. However, the RFMA pertains only to same-sex marriage, and accepts the federal RFRA as a defense, whereas the Equality Act would repeal the federal RFRA against SOGI categories.

For existing religious liberty threats, it is thus state and local law which is important at the present time. In most cases, objectionable goods and services can be supplied by non-objectors. The tenacity with which the SOGI and abortion wars have been fought over the last decade strongly indicates that it is not inconvenience to the recipients of these services which is the issue, but the objective of making religious believers violate religious precepts, thereby practically changing many people’s beliefs. The SOGI and abortion mandates are thus not neutral, but are targeting religious doctrine, contrary to the First Amendment. Perhaps this argument can eventually be made and made to prevail in the courts. But for now, legislation at the state level is important to ensure that people are not required to choose between their faith and their job.

  1. Comment by Bob Land on January 30, 2023 at 12:01 pm

    Hey how about naming that Republican governor of Indiana who surrendered to big business and “amended the RFRA to exclude conscience objection against homosexuality.” Why it was none other than Mike Pence!

    The surrender you describe took place on Maundy Thursday, and this is what I wrote on that day, “In a betrayal that would make Benedict Arnold and Vidkun Quisling blush, in a surrender that makes Vichy France appear heroic, Gov. Pence and the legislative leadership have completely surrendered. For their 30 pieces of silver they have sold out Christians and people of all faiths, and how ironic that it should happen on Maundy Thursday, the day when Judas betrayed Jesus.

    Before this retreat – no, rout – Gov. Pence had followers who would have walked across broken glass for him. Now they would not walk across the street for him. I strongly suspect he is now a one-term governor – as he now should be. He, and the GOP, have lost their friends, and I guarantee you they have not transformed their enemies.

    This is not the end. The Rheinland did not satisfy. The Sudentenland was not enough. And, Czechoslovakia didn’t appease. Neither will today’s capitulation suffice. . . . It will get worse. Tyranny is never appeased, and liberty, like virginity, once lost cannot be recovered.”

    As a life-long Hoosier, I have learned the hard way that one should never ever trust Governor / Vice President Mike Pence.

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