Tracking Religious Liberty in the States over Time
Jordan J. Ballor
Since its founding, the United States has had a unique national commitment to religious liberty, most notably exemplified in the First Amendment to the Constitution. Ratified in 1791, it serves as the primary basis for the nation’s legal recognition of religious liberty. The First Amendment 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 are the foundation for federal religious liberty jurisprudence in the United States.
While the constitutional commitment to religious liberty has remained unchanged even withstanding America’s often tumultuous development, the federalist structure has produced a legal landscape that varies from state to state. Most states have their own legislative and constitutional commitments to religious liberty and freedom of conscience. Here, there is an opportunity for important research into the diverse approaches taken by different states to protect religious liberty. The Religious Liberty in the States (RLS) index project launched in 2022 as an attempt to grapple with the diverse reality of religious liberty in the United States. The project seeks to analyze religious liberty across these 50 distinct political units in an empirically measurable way. For the purposes of this index, religious liberty is delimited to legal safeguards of free exercise rights as enshrined in state laws and constitutions.
Now in its second year, it is worth considering the significance of measuring these state-level protections of religious exercise over time. Much was accomplished in the inaugural RLS 2022 project, which was the first ever index of such domestic safeguards. Year two represents a noteworthy development of the project as new safeguards have been identified, and in another first, changes in law are now tracked over time.
A First Foundation for Analysis
The first two years of the Religious Liberty in the States (RLS) project establish a solid foundation for a project that will only continue to grow in importance and depth from year to year. The first installment of the RLS project created the framework to follow in subsequent years. Beyond simply creating a robust and adaptive approach, RLS 2022 implemented the methodology to create a novel dataset and an index ranking. RLS 2022 did not merely engage in a theoretical exercise nor sample a few states or safeguards, but rather produced a concrete and complete index of all fifty states across eleven safeguards. At the time of the RLS 2022 launch, this was a remarkable achievement, and it is one that only becomes more appreciable over time. The act of invention, understood as moving from nothing to something, is of a qualitatively different character than the work of innovation, which adapts something that already exists in some new way. The 2022 index was precisely such an act of invention.
In the project’s first year, Hope College economics professor Sarah Estelle developed a methodology to identify provisions in constitutional and statutory law—and in a few exceptional cases, regulatory and administrative law as well—that provide protections for religious exercise and evaluate the presence or absence of these provisions such that they can be coded and then scored in a binary system. In addition to this methodological invention, under Estelle’s direction the project saw the production of a new dataset. The resulting dataset is a comprehensive listing and evaluation of different distinct protections and their location in law across all fifty states. The existence of the dataset alone represents a significant step forward for research on religious liberty legislation in the United States and has already proven to be an extremely valuable resource for policymakers, advocates, and researchers on current religious liberty provisions.
After the development of the methodology, it was applied to the existing body of law across the states, resulting in a ranking of the fifty states from states having the most protections to those having the least according to the safeguards that were identified in the research process. The 2022 index was the consummation of these complex processes and efforts, and the results were notable and newsworthy. Two states, Mississippi and Illinois, scored above 80 percent on the index, leading the other forty-eight states by a significant margin. A score of 100 percent on this index indicates a state that has enacted all protections that have been identified as feasible in the research process. California, West Virginia, and New York were on the other end of the rankings, each with a score below 20 percent. Although some of these results may have been unexpected, one important lesson from 2022 was that there were tangible opportunities for every state in America to improve religious liberty protections, regardless of where a state ranked on the index.
Expanding the Scope for a Greater Picture
The 2023 index builds on this impressive beginning by expanding the scope of the project and adding elements that provide even greater assurance of the integrity of the project’s conclusions, rankings, and underlying data. The results for 2023 as well as the full report are now available. In the introduction of the 2022 report, “Sketching the Legal Landscape of Religious Liberty in the States in 2022,” I likened the RLS project to a kind of artistic rendering of the broader reality of religious liberty. Looking at the laws at the state level is akin to an artist sketching the geographical foundations of a landscape—mountains, hills, valleys. Where the first index covered eleven safeguards, the 2023 index broadens the landscape by adding three new safeguards—a substantive extension of the project’s robust coverage into previously unidentified areas.
Over time, then, the RLS project will continue to increase its scope to include more of the legal landscape, thereby providing a greater sweep of the vistas of religious liberty provisions. The project also continues to track the existence of these already identified protections over time, as in some may appear in a state for the first time or, in other cases, disappear. The larger federal context also will continue to provide a baseline environment. Changes in the federal context could either create new opportunities for positive state action to provide legal safeguards for religious liberty or eliminate the viability of state-level protections that have existed historically.
The changes in the results of this year’s index are due to two factors: what states have done differently since the last index and how the index has expanded in scope. In all cases, the cutoff date for laws to be included in each installment of the index is December 31 of the previous calendar year. So the 2022 index considered laws as of December 31, 2021, while the 2023 index covers the laws up to December 31, 2022. Going forward, each annual installment will cover the changes made during the previous calendar year.
For RLS 2023, even one year, which is a short period of time relative to the pace of action in state legislatures, has seen a few changes in the laws concerning the items covered in the 2022 report. The few states that have modified their protections have had their scores changed from year one to year two. The more significant source of variation in the rankings from 2022 to 2023, however, is due to the addition of new items now included in the calculations in the second year’s index. Where the first year of the RLS project covered 29 items across 11 distinct safeguards, the second year expanded the scope to cover 34 items in 14 different areas. This means that there have been some significant shifts in the scores and resulting rankings of certain states from year one to year two. Much of this change results from the expansion of what the index itself measures rather than changes over time in the underlying data itself. The state laws themselves have not seen much change from 2022 to 2023.
Illinois, for instance, which ranked second in 2022, moved into the top spot in 2023 with an overall score of 85%. This was not due to any change in the laws of Illinois that had been scored in 2022, but rather because five of the protections that were newly included in the 2023 index were already present in Illinois. Connecticut was ranked #11 in 2022, but a protection for exemptions to childhood immunizations was revoked in 2023, reducing Connecticut’s score (mitigated to some extent by its protections of a few of the new items measured in 2023) and ranking to 29th in 2023. Rhode Island was ranked 16th in 2022, but its addition of no-excuse absentee balloting for 2023 (offset by the new items) raised its net score 5 percentage points and ranking to 15th in 2023. South Carolina saw perhaps the biggest single year increase, from its placement at #38 in 2022 to second position overall in 2023. This massive increase was due to its implementation of a general conscience protection for health-care providers as well as its excellent performance on the newly measured items in 2023. At the other end of the rankings, West Virginia dropped from #49 in 2022 to last in 2023 because none of the newly measured elements in the index’s second year were present in the state.
Tracking Changes over Time
The RLS project will continue to track religious liberty protections in state law annually, which over time will allow more opportunity to continue to expand the coverage of legal provisions included in the project and to identify changes in the laws themselves. When combined, these annual snapshots will provide a moving picture of the development of state-level legal protections for religious liberty. In this way, the dataset will continue to expand as each year provides new data points for the stability or variability of religious liberty protections over time. In year three, the project welcomes new leadership, with Mark David Hall (Regent University) serving as director and Paul Mueller (AIER) as associate director.
Although a single year is insufficient time to expect much in terms of effective legislative action, it is likely that over time the RLS project will have a positive impact on the scores of states. With the creation and continuation of RLS, each state has increased access to information about what other states have done to protect religious liberty. This information represents an opportunity for states to use the work of their peers to adapt and adopt provisions that make sense in their own contexts. Although the RLS project is a social-scientific endeavor aimed at description rather than normative prescription, it is our hope that the study will increase awareness. This increased awareness of the reality of religious liberty in the United States will spur legislators, political leaders, and citizens to action. Whatever states do either to expand or restrict religious liberty protections will be tracked by the RLS project, but it is our hope at the Center for Religion, Culture & Democracy that scores will increase over time as new areas of action by states are identified. The increase of a state’s score due to improvement in the substantive legal protection for religious exercise in that state is as much something to be welcomed as the decline of such protection is something to be grieved.
Even as we might hope for increases in the protections for religious liberty in the states, both in terms of the number and scope of identified protections, RLS will continue to track domestic religious liberty protections over time, filling out the sketch of the legal landscape of religious liberty. ♦
Jordan J. Ballor is Director of Research at the Center for Religion, Culture & Democracy, an initiative of First Liberty Institute.
Ballor, Jordan J. “Tracking Religious Liberty in the States over Time.” Canopy Forum, January 6, 2024. https://canopyforum.org/2024/01/06/tracking-religious-liberty-in-the-states-over-time