Sketching the Legal Landscape of Religious Liberty in the States in 2022
Jordan J. Ballor
The United States Constitution, drafted in 1787, is a remarkable document. It is the oldest written and operating constitution in the world. There have been twenty-seven amendments to this text since its inception, from the original Bill of Rights, inclusive of the first ten amendments ratified in 1791, to the twenty-seventh, finally ratified in 1992 (after having been introduced in 1789).
The First Amendment to the Constitution is the primary basis for the legal recognition of religious liberty in the United States. It opens with these famous restrictions: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two clauses concerning establishment and free exercise have formed the foundation for federal religious liberty jurisprudence since their ratification.
The last 235 years have seen great changes in the United States. The nation’s borders have shifted and grown, and now comprise land between and beyond the American coasts of the Atlantic and Pacific oceans. A census conducted in 1790 placed the population of the United States at just over 3.9 million people spread across thirteen states. The latest national census completed in 2020 counted more than 331 million people in fifty states.
The American people are not only more numerous; they are also more diverse in manifold ways. The nation has experienced numerous religious awakenings and revivals, the trauma of the Civil War, two world wars, the Cold War, the struggles to end slavery and segregation, and countless other conflicts and conflagrations, domestic and abroad, cultural and political. Waves of migration from all over the world have grown the American people, both numerically and ethnically.
The national commitment to religious liberty, however, which motivated the first European immigrants to the American continent and animated the polity of the new United States emerging from the Revolutionary War, has remained unchanged amid America’s tumultuous development. The Constitution promises the free exercise of religion for American citizens as well as the rights of individual states to protect religious liberty.
Religious Liberty in the States
America’s federal structure has produced a variable legal landscape that allows for important research into the diverse approaches taken by different states to protect religious liberty. Religious Liberty in the States (RLS) is a new index project directed by Sarah M. Estelle, an economist at Hope College. RLS is an attempt to grapple with the diverse reality of religious liberty in the United States across fifty distinct political units in an empirically measurable way. In this sense the aims of the Index are both robust and refined.
The Index aims to be robust in the sense that it is intended to capture all the relevant areas of variation in legal safeguards for religious exercise across all fifty states. This inaugural iteration of the Index identifies six different areas of action by state laws (groups), inclusive of eleven different classes of protections (safeguards), consisting of twenty-nine distinct protections (items). Undoubtedly there are areas for future growth of the project as the legal landscape will change, potentially adding new areas of relevance for the Index’s coverage. In addition, there are areas of the law as it already exists that can be identified in order to expand and enhance the robustness of the Index’s findings in future years. In this first iteration of the project, the safeguards range from areas related to voting access and childhood immunizations to the existence of Religious Freedom Restoration Acts (RFRAs), conscience protections in healthcare settings, and exemptions and recusals in contexts related to marriages and weddings.
The RLS project is refined in several senses as well. There are practical limitations in terms of the constraints of time and resources for this first edition of the project. But there are also important conceptual, theoretical, and methodological limitations to the RLS project that both narrow and sharpen the Index’s scope.
The RLS index focuses on laws (statutory and constitutional) that are on the books for each of the fifty states. A straightforward, commonsense reading of these laws gives citizens a presumptive basis for seeing some aspect or manifestation of their religious freedom as being protected. In this way state law can be seen as foundational for safeguards of religious liberty in America.
The experience of religious liberty extends beyond the written and codified law of the land, however. The RLS index is thus limited: It does not purport to measure the experience of religious liberty for Americans in their everyday lives. It does not examine the cultural attitudes either for or against religious expressions of faith in America. It does not look at the protections of or challenges to religious liberty at the level of cities, counties, or regions. The federal government provides the context and background for state laws but is not itself the focus of the project. Nor does RLS (at least at this initial stage) examine how the judicial or executive branches (the latter particularly in its administrative and regulatory apparatus) impact the real-world application of these legal safeguards.
The empirical methodology of the Index’s construction, which moves from the existence of laws enacted by states to scoring, weighting, and ranking, is particularly important here. Rather than starting with a list of items that would in some ideal or normative sense define the scope of religious liberty protections, the researchers have instead looked to see what states themselves have already done in constitutional law and legislation in order to protect religious exercise. In this way, the 50 states define for themselves and for their peers the frontier or feasible ideal for domestic religious liberty. The scope of protections measured by the Index therefore depends on legislative action, and future action in a new area (or an action that provides novel protections) would expand the empirical scope of the project.
Sketching the Legal Landscape
The utility and efficacy of the Index is enhanced rather than confounded by these constraints. There is an established method for changing laws through the legislative process, laws which this Index measures and which can subsequently be addressed by policymakers and politicians. In this way the RLS project provides a foundational understanding that is necessary, but not sufficient, for a holistic and thorough understanding of religious liberty in the United States. Such a comprehensive perspective would entail a much broader remit than is feasible for a single project. The RLS index thus provides access to just one dimension (albeit an essential dimension) of the larger state of religious liberty in America.
To use an artistic image, we might liken the comprehensive state of religious liberty in the United States to a landscape painting with a variety of geographical and natural phenomena. A mountain range provides the ground level, with peaks that rise higher or lower across the landscape. This ground level is akin to the legal provisions for safeguarding religious liberty. But mountains are marked by valleys or other features, including caves, cliffs, and ridges. Mountains are often augmented by flora, including many kinds of vegetation and growth, whether trees, bushes, or flowers. And human action has an impact on the landscape as well. In the same way, the legal provisions for safeguarding religious liberty can either be affirmed or even strengthened by other factors, or they can be weakened or undermined by a variety of phenomena.
To get an accurate understanding of religious liberty in America, we must start our sketch with the base level before we might move on to examine other phenomena that strengthen, weaken, or leave untouched these foundational elements. We must begin with the background, the foundation. We first use a pencil to sketch the contours and then fill it in with color and paint before adding other, more particular inflections. This sketch of the legal landscape of religious liberty in the United States is thus an initial step that contributes to the much larger, comprehensive, and collaborative task of evaluating and promoting free exercise across the entire country. There are aspects that this landscape sketch has not yet reached, or whose features need to be worked out with greater precision, or with greater depth, or with greater detail, particularly in the course of other research projects.
Ranking the 50 States
The results of this first year’s report and rankings provide a first-ever baseline for measuring domestic religious liberty safeguards in America. And they also come with some results that welcome further work to explore and explain the findings. The top two states as ranked by the Index have quite different histories and political cultures. Mississippi ranks first in the 2022 Religious Liberty in the States index, with a score 81.82%. Close behind is Illinois, which scores 80.52%. The gap between these top two states and the rest is significant, as New Mexico is in third place and at 60.82% nearly twenty points behind the leaders. The bottom three states—California, West Virginia, and New York—all score under 20% of the Index’s ranking. But they are not alone in lagging behind, as the majority of states rate below 50% in the observed safeguards included in the Index.
This indicates that there is a great deal of practically achievable room for improvement in religious liberty protections in the United States. The project’s methodology allows for a clear path forward for states that would like to address gaps or omissions in their safeguards for religious exercise. For each of the 29 items included in the Index, there is at least one state that has acted to codify a particular protection. The laws of different states can thus serve as models or examples of potential legislation that can be adapted or updated to fit the needs of any other state.
The Center for Religion, Culture & Democracy (CRCD) is committed to continuing to develop and enhance the RLS project in future years. The report has gone through a substantive review process, with internal as well as external reviewers across a variety of disciplines. We welcome further feedback and constructive criticism and correction. We particularly welcome suggestions for how the Index might be made more robust and comprehensive and for areas in which it might contribute to the realization of domestic religious liberty and the broader flourishing of society.
This measure of the legal safeguards of religious liberty in the United States has been made possible by extraordinary sacrifices and liberality. One significant goal of this project is to help the progress of religious liberty in the United States for years to come. ♦
Dr. Jordan J. Ballor is Director of Research at the Center for Religion, Culture & Democracy, an initiative of First Liberty Institute. His Twitter handle is @JordanBallor.
Ballor, Jordan J. “Sketching the Legal Landscape of Religious Liberty in the States in 2022.” Canopy Forum, October 25, 2022. https://canopyforum.org/2022/10/25/sketching-the-legal-landscape-of-religious-liberty-in-the-states-in-2022/