Codes and Scoring

Table of Contents

Introductory Note

This document provides a detailed explanation of the codes and scoring system used in the construction of the 2024 RLS dataset. It is thus recommended as a guide for researchers who are working with the data spreadsheet. The document is structured according to categories, safeguards, and items. In several cases, a single item will constitute a safeguard (or even a whole category). In other cases, a safeguard consists of multiple items.

Please see the Dataset Construction appendixes in the RLS 2022 and 2023 reports for discussion of external sources used when developing RLS and verifying data.

Category/Safeguard/Item: Absentee Voting

At times, a religious person may find voting at a polling place on election day conflicts with his or her religious beliefs, for example, due to a religious observance. The absentee voting safeguard protects the ability of an individual to participate in an election at another time or by other means. Among states that require a valid reason for absentee voting, some allow religious observance as an acceptable reason to receive an absentee ballot, while others do not. Some states allow more flexible voting for all voters via all mail-in elections or no-excuse absentee ballots.

Federal Context

The federal government has not enacted any notable rule dictating election practice.

Possible Codes

A = State has all-mail elections
B = State permits no-excuse absentee voting
C = Religion is a valid reason to receive an absentee ballot
D = Religion is not an acceptable reason to receive an absentee ballot/Cannot vote absentee for religious reasons

Possible Scores

1 = Those with religious reasons have alternatives available that would facilitate absentee voting (A, B, and C)
0 = There is no recourse for religious concerns in absentee voting (D)

TOP

Category: Health-Care Provision

Federal law protects employees, including health-care providers, from religious discrimination. Additionally, federal law contains many conscience protections for health-care professionals (i.e., individuals) and health-care institutions (e.g., hospitals) who object to participating in certain health services. Many states safeguard free exercise in health-care provision even more broadly. This category includes a safeguard for the handful of states who provide general conscience protection for health-care providers as well as measures of conscience protections in reproductive services specifically. Within these specific services, states exhibit variation in who has the right to refuse, from what negative consequences the entity is safeguarded, and whether there are limitations to those safeguards.

Federal Context

The Church, Weldon, and Coats-Snowe Amendments deny federal funding to entities who discriminate against those who refuse to participate in abortion, sterilization, or contraception. RLS, therefore, focuses on a range of other potential protections including civil immunity, criminal immunity, and protection from other state-level government action (e.g., licensure and state funding).

TOP

Safeguard/Item: Health-Care Provision—General Conscience

States safeguard health-care providers and/or health-care institutions in their right to refuse to provide medical care procedures based on conscience.

Federal Context

There is no analogous federal law.

Possible Scores

1 = State provides an open-ended conscience protection for health-care providers (safeguard applies to individuals or individuals and institutions)
0 = State does not provide an open-ended conscience protection for health-care providers

TOP

Safeguard: Health-Care Provision—Abortion Refusal

(comprised of seven items)

Item: Individual-Level Abortion Refusal

Medical professionals (e.g., doctors, physicians, nurses, and/or hospital staff) are safeguarded in their right to refuse to participate in abortions.

Possible Codes

A = State does not allow any conscience protections for abortion
B = State allows some conscience protections in abortion but not for individual providers
C = State allows conscience protections in abortion for individual providers

Possible Scores

1 = State safeguards at least one type of individual health-care provider’s right of refusal from performing or participating in any part of abortion procedures (C)
0 = State does not safeguard individual health-care providers’ right of refusal from performing or participating in any part of abortion procedures (A, B)

Item: Private Hospital Abortion Refusal

Private hospitals are permitted to refuse to participate in abortion.

Possible Codes

A = State does not allow any conscience protections for abortion
B = State allows some conscience protections in abortion but not for private hospitals
C = State allows conscience protections in abortion for private hospitals

Possible Scores

1 = State safeguards private hospitals’ right of refusal from performing or participating in any part of abortion procedures (C)
0 = State does not safeguard private hospitals’ right of refusal from performing or participating in any part of abortion procedures (A, B)

Item: Public Hospital Abortion Refusal

Public hospitals are permitted to refuse to participate in abortion.

Possible Codes

A = State does not allow any conscience protections for abortion
B = State allows some conscience protections in abortion but not for public hospitals
C = State allows conscience protections in abortion for public hospitals

Possible Scores

1 = State safeguards public hospitals’ right of refusal from performing or participating in any part of abortion procedures (C)
0 = State does not safeguard public hospitals’ right of refusal from performing or participating in any part of abortion procedures (A, B)

Item: Immunity from Civil Liability (Abortion)

State precludes civil liability claims against at least one safeguarded entity in abortion procedures.

Possible Codes

A = State does not allow any conscience protections for abortion
B = State allows some conscience protections in abortion but does not preclude civil liabilities due to refusal
C = State allows conscience protections in abortion and specifically precludes civil liabilities

Possible Scores

1 = State precludes civil liability claims against at least one safeguarded entity in abortion refusal protections (C)
0 = State does not preclude civil liability claims against any entity in abortion refusal protections (A, B)

Item: Immunity from Criminal Liability (Abortion)

State precludes criminal prosecution of at least one safeguarded entity in abortion procedures.

Possible Codes

A = State does not allow any conscience protections for abortion
B = State allows some conscience protections in abortion but does not protect against criminal prosecution
C = State allows conscience protections in abortion and protects against criminal prosecution

Possible Scores

1 = State precludes criminal prosecution against at least one safeguarded entity in abortion refusal protections (C)
0 = State does not preclude criminal prosecution against any entity in abortion refusal protections (A, B)

Item: Protection from Government Consequences (Abortion)

State limits its ability to impose repercussions (e.g., loss of license, loss of funding, action by an administrative agency or the state) on at least one safeguarded entity in abortion procedures.

Possible Codes

A = State does not allow any conscience protections for abortion
B = State allows some conscience protections in abortion but does not protect against government action
C = State allows conscience protections in abortion for health-care providers and protects against government action

Possible Scores

1 = State precludes government action against at least one safeguarded entity in abortion refusal protections (C)
0 = State does not preclude government action against any entity in abortion refusal protections (A, B)

Item: Refusal in Emergency

The safeguards in the state statutes are not limited by a patient medical emergency.

Note: States may limit conscience protections in other ways, for example, by requiring referral or documentation of a policy of refusal. We selected this measure among potential limitations to the refusal right for its ease of identification and so as to avoid the question of whether having to declare in advance one’s conscience concern, for example, is a restriction on religious exercise or an inconvenience.

Possible Codes

A = State does not allow any conscience protections for abortion
B = State allows some conscience protections but limits those in the case of patient emergency
C = State allows conscience protections for health-care providers and does not limit those in emergencies

Possible Scores

1 = State does not limit the abortion refusal safeguards in the case of medical emergencies (C)
0 = State does limit the abortion refusal safeguards in the case of medical emergencies (A, B)

TOP

Safeguard: Health-Care Provision—Sterilization Refusal

(comprised of 6 items)

Item: Individual-Level Sterilization Refusal

At least some individuals (physicians, nurses, and/or hospital staff) are safeguarded in their right to refuse to participate in sterilization.

Possible Codes

A = State does not allow any conscience protections for sterilization
B = State allows some conscience protections in sterilization but not for individual providers
C = State allows conscience protections in sterilization for individual health-care providers

Possible Scores

1 = State safeguards at least one group of individual health-care providers’ right of refusal from performing or participating in any part of sterilization procedures (C)
0 = State does not safeguard individual health-care providers’ right of refusal from performing or participating in sterilization procedures (A, B)

Item: Private Hospital Sterilization Refusal

Private hospitals are permitted to refuse to participate in sterilization

Possible Code

A = State does not allow any conscience protections for sterilization
B = State allows some conscience protections in sterilization but not for private hospitals
C = State allows conscience protections in sterilization for private hospitals

Possible Scores

1 = State safeguards private hospitals’ right of refusal from performing or participating in any part of sterilization procedures (C)
0 = State does not safeguard private hospitals’ right of refusal from performing or participating in any part of sterilization procedures (A, B)

Item: Public Hospital Sterilization Refusal

Public hospitals are permitted to refuse to participate in sterilization.

Possible Code

A = State does not allow any conscience protections for sterilization
B = State allows some conscience protections in sterilization but not for public hospitals
C = State allows conscience protections in sterilization for public hospitals

Possible Scores

1 = State safeguards public hospitals’ right of refusal from performing or participating in any part of sterilization procedures (C)
0 = State does not safeguard public hospitals’ right of refusal from performing or participating in any part of sterilization procedures (A, B)

Item: Immunity from Civil Liability (Sterilization)

State precludes civil liability claims against at least one safeguarded entity in sterilization procedures.

Possible Codes

A = State does not allow any conscience protections for sterilization
B = State allows some conscience protections in sterilization but does not preclude civil liabilities due to refusal
C = State allows conscience protections in sterilization and specifically precludes civil liabilities due to refusal

Possible Scores

1 = State precludes civil liability claims against at least one safeguarded entity in sterilization refusal protections (C)
0 = State does not preclude civil liability claims against any entity in sterilization refusal protections (A, B)

Item: Immunity from Criminal Liability (Sterilization)

State precludes criminal prosecution of at least one safeguarded entity in sterilization procedures.

Possible Codes

A = State does not allow any conscience protections for sterilization
B = State allows some conscience protections in sterilization but does not protect against criminal prosecution
C = State allows conscience protections in sterilization for health-care providers and protects against criminal prosecution

Possible Scores

1 = State precludes criminal prosecution against at least one safeguarded entity in sterilization refusal protections (C)
0 = State does not preclude criminal prosecution against any entity in sterilization refusal protections (A, B)

Item: Protection from Government Consequences (Sterilization)

State limits its ability to impose repercussions on at least one safeguarded entity in sterilization procedures.

Possible Codes

A = State does not allow any conscience protections for sterilization
B = State allows some conscience protections in sterilization but does not protect against government action
C = State allows conscience protections in sterilization for health-care providers and protects against government action

Possible Scores

1 = State precludes government action against at least one safeguarded entity in sterilization refusal protections (C)
0 = State does not preclude government action against any entity in sterilization refusal protections (A, B)

TOP

Safeguard: Health-Care Provision—Contraception Refusal

(comprised of six items)

Item: Individual-Level Contraception Refusal

At least some individuals (physicians, nurses, and/or hospital staff) are safeguarded in their right to refuse to participate in contraceptive procedures or the distribution of contraceptives.

Possible Codes

A = State does not allow any conscience protections for contraception
B = State allows some conscience protections in contraception but not for individual practitioners
C = State allows conscience protections in contraception for health-care providers and specifically for individual practitioners
D = State only mentions public or public grant-based family planning services in its statutes about contraceptives

Possible Scores

1 = State safeguards at least one group of individual health-care providers’ right of refusal from participating in the distribution of contraceptives (C)
0 = State does not safeguard individual health-care providers’ right of refusal from participating in the distribution of contraceptives (A, B, D)

Item: Private Hospital Contraception Refusal

Private hospitals are permitted to refuse to participate in contraceptive procedures or the distribution of contraceptives.

Possible Codes

A = State does not allow any conscience protections for contraception
B = State allows some conscience protections in contraception but not for private hospitals
C = State allows conscience protections in contraception for health-care providers and specifically for private hospitals
D = State only mentions public or public grant-based family planning services in its statutes about contraceptives

Possible Scores

1 = State safeguards private hospitals’ right of refusal from participating in the distribution of contraceptives (C)
0 = State does not safeguard private hospitals’ right of refusal from participating in the distribution of contraceptives (A, B, D)

Item: Public Hospital Contraception Refusal

Public hospitals are permitted to refuse to participate in contraceptive procedures or the distribution of contraceptives.

Possible Codes

A = State does not allow any conscience protections for contraception
B = State allows some conscience protections in contraception but not for public hospitals
C = State allows conscience protections in contraception for health-care providers and specifically for public hospitals
D = State only mentions public or public grant-based family planning services in its statutes about contraceptives

Possible Scores

1 = State safeguards public hospitals’ right of refusal from participating in the distribution of contraceptives (C)
0 = State does not safeguard public hospitals’ right of refusal from participating in the distribution of contraceptives (A, B, D)

Item: Immunity from Civil Liability (Contraception)

State precludes civil liability claims against at least one safeguarded entity in contraceptive procedures or the distribution of contraceptives.

Possible Codes

A = State does not allow any conscience protections for contraception
B = State allows some conscience protections in contraception but does not preclude civil liabilities due to refusal
C = State allows conscience protections in contraception and specifically precludes civil liabilities due to refusal
D = State only mentions public or public grant-based family planning services in its statutes about contraception and does not include civil liability protections

Possible Scores

1 = State precludes civil liability claims against at least one safeguarded entity in contraception refusal protections (C)
0 = State does not preclude civil liability claims against any entity in contraception refusal protections (A, B, D)

Item: Immunity from Criminal Liability (Contraception)

State precludes criminal prosecution of at least one safeguarded entity in contraceptive procedures or the distribution of contraceptives.

Possible Codes

A = State does not allow any conscience protections in contraception
B = State allows some conscience protections in contraception but does not protect against criminal prosecution
C = State allows conscience protections in contraception for health-care providers and protects against criminal prosecution
D = State only mentions public or public grant-based family planning services in its statutes about contraception and does not include protection against criminal prosecution

Possible Scores

1 = State precludes criminal prosecution against at least one safeguarded entity in contraception refusal protections (C)
0 = State does not preclude criminal prosecution against any entity in contraception refusal protections (A, B, D)

Item: Protection from Government Consequences (Contraception)

State limits its ability to impose repercussions on at least one safeguarded entity in contraceptive procedures or the distribution of contraceptives.

Possible Codes

A = State does not allow any conscience protections in contraception
B = State allows some conscience protections in contraception but does not protect against government action
C = State allows conscience protections in contraception for health-care providers and protects against government action
D = State only mentions public or public grant-based family planning services in its statutes about contraception and does not include protections against government action

Possible Scores

1 = State precludes government action against at least one safeguarded entity in contraception refusal protections (C)
0 = State does not preclude government action against any entity in contraception refusal protections (A, B, D)

TOP

Safeguard: Health-Care Provision—Health Insurance Mandates

(comprised of three items)

The Affordable Care Act (ACA) mandates that health-insurance coverage include contraceptives, exempting houses of worship from this requirement. In 2018, the Trump administration enacted a rule allowing more employers with religious and moral objections to opt out of health-insurance coverage of contraceptives, and this rule was upheld in 2020 in the Little Sisters of the Poor v. Pennsylvania decision. This safeguard captures whether states maintain the existing exempt space for religious employers, either by having no state-level insurance contraception mandate or by offering either a narrow or a broad exemption. As well, we consider state mandates and protections with respect to abortion and sterilization.

Federal Context

States cannot expand religious exemptions to federal mandates but can effectively narrow the federally provided religious exemption if there is a state-level mandate that makes no religious exemptions or reduces those who are eligible for it.

Identifying Codes and Assigning Scores

We read each state’s law(s) assigning codes according to mandates (if any) that exist, the exemptions (if any) that apply to that mandate, and the extent to which that exemption is applicable to employers (as opposed to insurance carriers).

Item: Exemption from Contraception Mandate

Possible Codes

A = No state contraception mandate
B = State has contraception mandate and makes no exemptions for employers
C = State has contraception mandate and exempts only religious entities
D = State has contraception mandate and has broad exemptions

Possible Scores

1 = No contraception mandate or mandate and broad exemptions (A, D)
.5 = State has mandate and only narrow exemptions (C)
0 = State has mandate and no exemptions (B)

Item: Exemption from Abortion Mandate

Possible Codes

A = No state abortion mandate
B = State has abortion mandate and makes no exemptions for employers
C = State has abortion mandate and narrow religious exemptions
D = State has abortion mandate and has broad exemptions

Possible Scores

1 = No abortion mandate or mandate and broad exemptions (A, D)
.5 = State has mandate and narrow religious exemptions (C)
0 = State has mandate and no exemptions (B)

Item: Exemption from Sterilization Mandate

Possible Codes

A = No state sterilization mandate
B = State has sterilization mandate and makes no exemptions for employers
C = State has sterilization mandate and narrow religious exemptions
D = State has sterilization mandate and has broad exemptions

Possible Scores

1 = No sterilization or mandate and broad exemptions (A, D)
.5 = State has mandate and narrow religious exemptions (C)
0 = State has mandate and no exemptions (B)

TOP

Category: Marriage and Weddings

All states authorize clergy and government officials to solemnize, celebrate, and/or license marriages in their state. This category of safeguards captures any religious exemptions by states for these entities’ participation in licensing marriages, marriage solemnization, or wedding celebrations that would conflict with religious beliefs or dictates. One state even provides for-profit businesses the right to refuse participation. Some states make explicit the penalties from which exempted parties are protected, including mention of religious organizations’ tax-exempt status.

Federal Context

The Supreme Court’s Obergefell v. Hodges (2015) decision recognized a right to same-sex marriage. While the federal Respect for Marriage Act (2022) (RFMA) provides religious exemptions from what would otherwise appear its implications, as explained in section 3 of the 2023 RLS report, RFMA has no practical impact on what states can effectively safeguard in this space. Obergefell requires all states to recognize same-sex marriage, so whether states recognize same-sex marriage as a matter of statutory law does not impact religious liberty protections. Nevertheless, because RLS 2022 and 2023 tracked which states have laws recognizing same-sex marriage, we continue to track changes in this area in RLS 2024 and will do so in future iterations of the study.

Identifying Codes and Assigning Scores

In addition, we found some marriage-related laws for religious organizations and for-profit entities within public accommodation laws. We read marriage and wedding laws to determine whether a state protects individuals and organizations from being forced to participate in same-sex wedding ceremonies.

Missing Data

We rely on the area of each state’s code in specifying who can legally perform a marriage to indicate the approximate location of any rights of recusal/refusal and on reading widely in the proximate area to seek out those allowances in cases where the external sources suggest there are none. It is noteworthy that some states that do not prohibit discrimination on the basis of sexual orientation responded to Obergefell v. Hodges (2015) by legislating safeguards for various entities in the areas of marriage and weddings.

TOP

Safeguard/Item: Marriage and Weddings—Nonparticipation by Clergy

This safeguard/item tracks whether there are safeguards for clergy to refuse solemnization of marriages that violate their religious belief or doctrines.

Possible Codes

A = State statutory law recognizes same-sex marriage and includes safeguards for clergy
B = State statutory law recognizes same-sex marriage and includes no safeguards for clergy
C = State statutory law does not reflect the federal recognition of same-sex marriage but the state includes safeguards for clergy
D = State statutory law does not reflect the federal recognition of same-sex marriage and includes no safeguards for clergy

Possible Scores

1 = State safeguards clergy’s right to refusal (A, C)
0 = State does not safeguard clergy’s right to refusal (B, D)

TOP

Safeguard: Marriage and Weddings—Religious Entity Refusal

(comprised of three items)

Item: Nonparticipation by Religious Organizations

Religious organizations, including religious-controlled organizations and religious nonprofits, often facilitate or host marriage and wedding celebrations. This item characterizes whether there are any safeguards for these organizations to refuse solemnization, participation, celebration, or facilitation of marriages that violate the religious tenets of the organization.

Possible Codes

A = State statutory law recognizes same-sex marriage and includes safeguards for religious organizations
B = State statutory law recognizes same-sex marriage and includes no safeguards for religious organizations
C = State statutory law does not reflect the federal recognition of same-sex marriage but the state includes safeguards for religious organizations
D = State statutory law does not reflect the federal recognition of same-sex marriage and includes no safeguards for religious organizations

Possible Scores

1 = State safeguards religious organizations’ right to refusal (A, C)
0 = State does not safeguard religious organizations’ right to refusal (B, D)

Item: Explicit Protection of Tax-Exempt Status

Some states explicitly guarantee that a religious organization’s tax-exempt status cannot be revoked if it refuses to participate in a same-sex marriage.

Possible Codes

A = State statutory law recognizes same-sex marriage and protects tax exempt status
B = State statutory law recognizes same-sex marriage and does not protect tax exempt status
C = State statutory law does not reflect the federal recognition of same-sex marriage but the state includes protection of tax-exempt status
D = State statutory law does not reflect the federal recognition of same-sex marriage and does not include protection of tax-exempt status

Possible Scores

1 = State protects tax exempt status (A, C)
0 = State does not protect tax exempt status (B, D)

Item: Protections from Government Penalties Beyond Tax-Exempt Status

This indicator reflects whether a state’s law ensures that a wide range of government repercussions will not follow from exercising the granted religious exemption.

Possible Codes

A = State statutory law recognizes same-sex marriage and precludes a wide range of public penalties
B = State statutory law recognizes same-sex marriage and state does not mention what penalties are proscribed or goes no further than protecting tax-exempt status
C = State statutory law does not reflect the federal recognition of same-sex marriage but precludes a wide range of public penalties
D = State statutory law does not reflect the federal recognition of same-sex marriage and the state does not mention what penalties are proscribed or goes no further than protecting tax-exempt status

Possible Scores

1 = State precludes a wide range of public penalties (A, C)
0 = State does not preclude a wide range of public penalties (B, D)

TOP

Safeguard/Item: Marriage and Weddings—Public Official Recusal

This safeguard/item tracks whether there are safeguards for government officials (who license and/or solemnize marriages) to recuse themselves if it violates their personal religious beliefs.

Possible Codes

A = State statutory law recognizes same-sex marriage and includes safeguards for public official recusal
B = State statutory law recognizes same-sex marriage and includes no safeguards for public official recusal
C = State statutory law does not reflect the federal recognition of same-sex marriage but the state includes safeguards for public official recusal
D = State statutory law does not reflect the federal recognition of same-sex marriage and includes no safeguards for public official recusal

Possible Scores

1 = State safeguards public official recusal (A, C)
0 = State does not safeguard public official recusal (B, D)

TOP

Safeguard/Item: Marriage and Weddings—For-Profit Business Nonparticipation

For-profit businesses that provide goods or services for marriage ceremonies or wedding celebrations are accommodated by one state, Mississippi, which provides a safeguard to these businesses in solemnization, recognition, association, or celebration of marriages or weddings that violate personally held religious or moral beliefs of the business or business owner. This item captures this possible, though rare, safeguard.

Possible Codes

A = State statutory law recognizes same-sex marriage and includes safeguards for nonparticipating for-profit business
B = State statutory law recognizes same-sex marriage and includes no safeguards for nonparticipating for-profit business
C = State statutory law does not reflect the federal recognition of same-sex marriage but the state includes safeguards for nonparticipating for-profit business
D = State statutory law does not reflect the federal recognition of same-sex marriage and includes no safeguards for nonparticipating for-profit business

Possible Scores

1 = State safeguards nonparticipating for-profit business (A, C)
0 = State does not safeguard nonparticipating for-profit business (B, D)

TOP

Category: Religious Ceremonial Life

The first item reflects the potential safeguard for penitential or otherwise confidential communication between congregant and minister in noting whether there are exceptions or exemptions for clergy within mandatory reporting laws targeting child abuse. Two other items comprise a safeguard related to the use of alcohol in religious ceremonies, reflecting that the fullness of a safeguard in this area of religious exercise would necessarily permit within the context of religious ceremony both the furnishing of alcohol by religious officials to minors and the consumption of alcohol by minors.

TOP

Safeguard/Item: Religious Ceremonial Life—Clergy as Mandatory Reporters

The federal government specifies a minimum set of actions that are considered child abuse and neglect but does not set a standard for reporting responsibilities. All states include mandatory reporting laws within child welfare laws, often enumerating categories of individuals who must report child abuse. This safeguard captures whether or not the state protects the right of clergy to maintain confidentiality by either excluding clergy from the group of mandatory reporters or by exempting clergy from the mandate when information is obtained through penitential or otherwise confidential clerical communication.

Federal Context

The federal Child Abuse Prevention and Treatment Act (CAPTA) (42 USCA 5106g) sets a minimum for the actions (or non-actions) considered child abuse or neglect but does not indicate a set of mandatory reporters. At the state level, laws can expand what is considered child abuse or neglect and specifically name groups of individuals who are required to report information that suggests instances of child abuse or neglect. All states have child abuse laws that define mandatory reporters. Some enumerate groups of individuals (teachers, physicians, child-care workers, etc.) while others indicate that “any person” is responsible for reporting when a child is involved.

Identifying Codes and Assigning Scores

We read each state law to determine if clergy are included as mandatory reporters, either with mandates that apply universally (e.g., “all persons,” “any individual”) or with clergy enumerated within a list of mandatory reporters. We then identified whether penitential communication or communication with clergy under the expectation of confidentially is exempted from laws mandating reports of child abuse and neglect, even if clergy are otherwise mandatory reporters (for example, in situations where they learn of child abuse outside of a role as confessor or, to adopt the language of the Federal Rules of Evidence, in a context other than “his professional character as a spiritual adviser”).

Some states privilege communication between clergy and congregants in rules of evidence within state statutes or elsewhere. To qualify as safeguarding for this item, though, RLS requires that not only are clergy not required to testify or provide information in courts but that they are under no mandate to report to any public authority, so long as the original communication was understood to be confidential. Some states reference rules of evidence or court procedures to help define what sorts of clergy-penitent communication is exempted from mandatory reporting, say, by referencing definitions given in rules of evidence but within the mandatory reporting laws. Other states mention such privilege only in the rules for courts and make no reference to a broader implication of the same for legal mandates by the state outside of the courts (e.g., mandatory reporting). One state (Illinois) privileges penitential communication within the rules of evidence in terms that explicitly establish that clergy “shall not be compelled to disclose in any court, or to any administrative board or agency, or to any public officer, a confession or admission made to him or her in his or her professional character” (735 ILCS 5/8-803). Most exemptions in this safeguard are provided within the mandatory reporting laws themselves. These are the clearest cases of safeguarding, and, in general, RLS finds that a privilege that only addresses disclosure in court proceedings falls short of guaranteeing the fullness of confidentiality as required by many religions for their clergy.

Possible Codes

A = “Any person” is a mandatory reporter and clergy are exempted at least in some professional capacity
B = “Any person” is a mandatory reporter and clergy are not exempted
C = Clergy are enumerated as mandatory reporters and are exempted at least in some professional capacity
D = Clergy are enumerated as mandatory reporters and are not exempted
E = Mandatory reporters are enumerated and clergy are not included but receive an explicit exemption at least in some professional capacity
F = Mandatory reporters are enumerated, clergy are not included and receive no explicit exemption

Possible Scores

1 = State protects penitential communication in mandatory reporting laws (A, C, E, F)
0 = State does not protect penitential communication in mandatory reporting laws (B, D)

TOP

Safeguard: Religious Ceremonial Life—Ceremonial Use of Alcohol by Minors

(comprised of two items)

In many religious ceremonies, including communion, Eucharistic celebrations, and Kiddush ceremonies, the ability of a religious leader to offer some form of alcohol and the ability of the religious adherent to receive it are both required by the spiritual act/rite. This safeguard captures whether a state allows clergy to furnish alcohol to underage individuals and whether the underage individual can legally consume alcohol during religious rites and ceremonies. Some states do not allow any exceptions from minor legal drinking age laws (MLDA). Of the states that do allow exemptions from MLDA laws, some states allow exceptions for religious ceremonies or parental consent while others do not. Some states extend these exceptions in ways that safeguard the religious liberty of clergy, minor religious adherents, or both.[1]

Federal Context

In order to receive federal funds, states must maintain a minimum age of 21 years for both the purchase and the public possession of alcohol. Notably, and critically for this safeguard, federal law does not make requirements on states with respect to furnishing broadly understood, which would include dissemination of alcohol by clergy in a religious ceremony, or consumption, which would include consumption by minors within ceremonies. All states comply with the federal requirement but may make exceptions to their own laws about furnishing and consumption for a variety of reasons, including parental discretion and consent, learning opportunities for culinary students, medical treatment, and participation in religious ceremonies.

Identifying Coding and Scores: A Note about Parents

Many states have some form of exception to MLDA laws when parents are involved. Parental consent or furnishment/consumption “in the presence” of a parent gives more opportunity for clergy and young religious adherents than does stating only that parents can “give” or furnish alcohol. Still, some “underage” people with respect to MLDA are older than the age of majority, and one might argue should have unmediated (by parents) free exercise of religion. If the MLDA laws and the age of majority named the same age, RLS could simply choose to not take a stance on whether parental mediation was consistent with liberty or not. (Children’s liberty is often constrained by parental consent.) Setting this aside, it is still unclear whether laws that allow parents to “give” underage children alcohol allows the distribution of sacramental wine by clergy. We, therefore, in the two items below reflect the variation in state laws with respect to a parent’s role but score this safeguard to indicate that allowing parents an exemption is not synonymous with an exemption for clergy or religious youth.

Missing Data

Oklahoma does not generally prohibit the private consumption of alcohol by minors, but does restrict the public possession and purchase of alcohol by minors, and prohibits furnishing alcohol to minors. Oklahoma only explicitly prohibits the public possession of beer with less than 3.2% ABV or “low-point beer” (§2-8-222).

Item: Furnishment to Minors

This item indicates if a state allows exceptions for religious leaders to dispense/furnish alcohol to minors for religious reasons.

Identifying Codes and Assigning Scores

The research team read each state law concerning furnishing alcohol to underage individuals by those over 21. We then identified if the state allowed any exceptions to these laws and if so, whether the exceptions were extended to religious leaders directly (e.g., by granting an exception in the context of religious ceremonies).

Possible Codes

A = State offers exceptions for furnishing to minors in religious ceremonies or for religious reasons
B = State offers no exception for religious ceremonies but makes exceptions for furnishing to minors with parental involvement
C = State does not offer exceptions for furnishing in religious ceremonies or by parents

Possible Scores

1 = State makes an exception for furnishing to minors in religious ceremonies (A)
0 = State does not have exceptions that allow legally furnishing alcohol to minors in religious ceremonies (B, C)

Item: Consumption by Minors

This item indicates if a state allows exceptions for minors to consume or possess alcohol for religious reasons.

Identifying Codes and Assigning Scores

The research team read each state law concerning exceptions to underage consumption or possession of alcohol, identified if the state allowed any exceptions to these laws and if so, whether the exceptions were extended to minors directly (e.g., by granting an exception in the context of religious ceremonies).

Possible Codes

A = State offers exceptions to minors for religious reasons
B = State offers no exception to minors related to religious reasons but does allow consumption with parental consent
C = State does not offer exceptions to minors for either religious reasons or with parental consent

Possible Scores

1 = State makes an exception for consumption by minors in religious ceremonies (A)
0 = State does not offer an exception for consumption by minors in religious ceremonies (B, C)

TOP

Safeguard/Item: Religious Ceremonial Life—Houses of Worship Protected from Closing

In the wake of the COVID-19 pandemic, eighteen states passed statutes that prohibit governments from treating houses of worship differently than similarly situated businesses.

Federal Context

There is no relevant federal context.

Identifying Coding and Scores

The research team read each state law concerning the state government’s ability to close houses of worship during a pandemic or other emergency. Eighteen states have statutes that prohibit governments from treating houses of worship differently than similarly situated businesses.

Possible Codes

A = State has statute protecting houses of worship
B = State has no statute protecting houses of worship

Possible Scores

1 = State has statute protecting houses of worship (A)
0 = State has no statute protecting houses of worship (B)

TOP

Category/Safeguard/Item: Religious Freedom Restoration Act (RFRA)

In 1997, the decision in City of Boerne v. Flores found the federal Religious Freedom Restoration Act (RFRA) unconstitutional as applied to states and therefore only relevant to the federal government. Since then, many states have enacted laws, patterned after the federal RFRA, that emphasize protection from the burden of government action that many recognize can follow from religion-neutral laws. Some states passed RFRA laws shortly after the federal court decision while a number of others attempted to pass laws in 2015. The most recent RFRA laws took effect in 2023.

Federal Context

The federal RFRA applies to federal jurisdictions only and so leaves wide open the opportunity for states to address the burdens of their own rules of general applicability.

Identifying Codes and Assigning Scores

We read each law and coded each state according to whether the law was in the state’s constitution, the state’s statutes, or nonexistent. While some states have claimed that certain court case decisions yield RFRA-like protections for religious entities and individuals, RLS limits its scope to statutory and state constitutional law.

Possible Codes

A = RFRA in the state constitution
B = RFRA in state statute
C = No RFRA in the state law

Possible Scores

1 = RFRA in constitution or statute (A, B)
0 = No RFRA (C)

Missing Data

Where we find no state RFRA in a state’s laws, we confirm with the two external data sources.

TOP

Category: Students

In 2023, all states maintain compulsory schooling laws and require immunization of school-aged children. This category features two safeguards related to the free exercise of religion for students. The first reflects whether exemptions to immunization requirements are available for religious reasons. The second indicates whether states require their schools to grant excused absences to students for religious reasons.

TOP

Safeguard/Item: Students—Immunization Requirement Exemption

Federal Context

There is no relevant federal rule regarding childhood immunization requirements.

Identifying Codes and Assigning Scores

We read each law and coded each state’s law according to the type of exemption (or lack of exemption) the law allows. RLS operates from an understanding (made explicit in some states’ laws) that philosophical concerns are inclusive of religious beliefs. Therefore, if a state allows for broader philosophical exemptions, it provides exemption for one’s religious beliefs.

Possible Codes

A = State allows religious beliefs as a reason for exemption from childhood immunization
B = State allows exemption broader than religious (e.g., personal, philosophical, or moral beliefs) as an acceptable reason for exemption from childhood immunization
C = State does not allow nonmedical exemption (religious, personal, philosophical, or moral beliefs) as an acceptable reason for exemption from childhood immunizations

Possible Scores

1 = State makes exemptions from immunization for nonmedical reasons (e.g., religious, philosophical, personal belief) (A, B)
0 = State makes no nonmedical exemptions (C)

Missing Data

None. All states have laws outlining the immunization requirements for public school children.

TOP

Safeguard: Students—Excused Absences for Religious Reasons

(comprised of three items)

Federal Context

While the First Amendment and other federal laws broadly protect student religious speech and private action, states legislate in a few areas regarding other types of student religious exercise. One of these areas of discretion is whether an absence due to religious observances or religious instruction (lessons, schooling, or confirmation classes) qualifies as an excused absence from school. All states have set standards describing the expectations and requirements for compulsory attendance of public-school children and some have a list of which excuses count as lawful absences. If a student is limited to a certain number of unexcused absences, the student and his or her guardian may be subject to the consequences of truancy by the state.

Identify Codes and Assigning Scores

The research team used an internet search and general survey of state statutes to locate the area of state law where laws concerning compulsory attendance for public school children exist. In addition to identifying each state’s compulsory schooling law and any exceptions from it, we accessed the website of each state’s education department, board of education,[2] or the like to locate any references to administrative or regulatory law that could serve as a substitute to statutory provisions. Where statutory law is even the least bit unclear about whether there is state-level authority to define “excused absences” beyond the statutes, the notes columns of the RLS 2024 public data set include a link to the education department website or an authoritative document therein to further corroborate our coding decisions.

The research team carefully read each state’s compulsory schooling laws with particular interest in lists of exceptions. If excused or lawful absences were specified, we noted whether absences due to religious observances and/or religious instructions were among them. Moreover, we took special care to observe whether a state requires schools/districts (e.g., “a school shall grant”) or permits schools/districts (e.g., “a district may allow”) to provide religious excuses. This distinction is important for RLS, which measures safeguards in the form of states removing artificial barriers of free exercise, artificial barriers of their own making. Since state compulsory schooling laws are potential barriers to the free exercise of religion, unless states prohibit local schools and districts from leveraging that power over religious people—that is, unless they require that religious reasons constitute an excused absence—they are not safeguarding citizens’ free exercise rights. In short, permitting but not requiring excused absences for religious reasons is not sufficient. We assigned codes to each law according to whether students are afforded excused absences for religious observances and/or religious lessons.

Verifying Data

We verified the data and scores for this safeguard by rereading each state’s compulsory schooling laws and completing a careful search of the websites of state-level education entities. The research team verified which reasons qualify as an excused absence in each state and recorded if a state included religious observances (e.g., holidays, practices) and/or religious lessons (e.g., confirmation classes, religious instruction) as relevant excuses.

Missing Data

While all states have compulsory attendance laws for public school students, it is difficult to establish that we’ve found all absence-related information that is binding at the state level. Since there is no external source for this data, the research team tried to locate a state-level document or website page that corroborates the assessment of each state that received a score 0 for any item in this safeguard. If a state statute explicitly grants authority to local school districts or a local school board to define excused absences, it is unlikely that we are able to find a state-level link that expands meaningfully on the authoritative statute. In cases where a document could not be found, we direct interested users to the education-governing entity’s website for the state.

Item: Public K–12 Students Excused for Religious Observance

This item indicates if a student absence due to religious holiday, observance, and/or practice qualifies as an acceptable excuse for an excused absence from school by the state.

Possible Codes

A = State requires, either by statutory law or by State Board of Education rules, schools to excuse absences due to religious holidays, observances, and/or practices
B = State statutory law explicitly permits schools to excuse absences due to religious holidays, observances, and/or practices but does not require it
C = State statutes say nothing of religious holiday, observance, and/or practice within a list of specific excused absences (permitted or required)
D = State statutes do not include a list of specific qualifying excused absences, in some cases granting authority to a more localized entity to do so

Possible Scores

1 = State requires absences due to religious holidays, observances, and practices be excused (A)
0 = State does not require absences due to religious holidays, observances, and practices be excused (B, C, D)

Item: Public K–12 Students Excused for Religious Instruction

This item indicates if student absence due to religious lessons or instruction qualifies as an acceptable excuse for an excused absence from school by the state.

Possible Codes

A = State requires, either by statutory law or by State Board of Education rules, schools to excuse absences due to religious lessons and/or instruction
B = State statutory law explicitly permits schools to excuse absences due to religious lessons and/or instruction but does not require it
C = State statutes say nothing of religious lessons and/or instruction within a list of specific excused absences (permitted or required)
D = State statutes do not include a list of specific qualifying excused absences, in some cases granting authority to a more localized entity to do so

Possible Scores

1 = State requires absences due to religious lessons and/or instructions be excused (A)
0 = State does not require absences due to religious lessons and/or instructions be excused (B, C, D)

Item: Public College and University Students Excused for Religious Observance

This item indicates if a college student absence due to religious holiday, observance, and/or practice qualifies as an acceptable excuse for an excused absence from school by the state.

Possible Codes

A = State requires, either by statutory law or administrative rules, public colleges to excuse absences due to religious holidays, observances, and/or practices
B = State statutory law explicitly permits colleges to excuse absences due to religious holidays, observances, and/or practices but does not require it
C = State statutes say nothing of religious holiday, observance, and/or practice within a list of specific excused absences (permitted or required)
D = State statutes do not include a list of specific qualifying excused absences, in some cases granting authority to college/university to do so

Possible Scores

1 = State requires absences due to religious holidays, observances, and practices be excused (A)
0 = State does not require absences due to religious holidays, observances, and practices be excused (B, C, D)

TOP

[1] Ten of the fifty states have an exception for religious ceremonies with respect to either furnishment or consumption but not both. While this may seem illogical, RLS records these codes according to the letter of the law, making apparent the opportunity that exists for reconciling the laws in these states to further safeguard religious individuals.

[2] Only two state boards of education, in Connecticut and Georgia, require all public schools to grant excused absences for religious observance.