Since the inception of Religious Liberty in the States, we have received thoughtful questions and feedback from readers. Search for your question below and click on the down arrow for answers.
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No. This index draws from as many state statutes and constitutional provisions as possible to measure religiously relevant laws that might differ across states regardless of the religious motivation for the safeguard.
Typically, states are not writing new laws to intentionally restrict religious liberty, and so the variation comes from states providing safeguards for free exercise, say, in otherwise religion-neutral laws. It is important that we allow states to indicate through the language of their laws (e.g., where they cite religious belief as providing an exemption) where their citizens, presumably, consider a law to potentially jeopardize free exercise. Laws protecting, say, a doctor from being forced to perform an abortion against her religious conviction protect equally Christian, Jewish, Muslim, and other physicians with such objections.
In some cases, the protections we consider are more likely to protect non-Christians than Christians. Public school calendars usually protect the ability of Christians to worship on their Sabbath and enjoy important holy days. For instance, few if any school districts require school attendance on Sunday, and schools are usually not in session during the Christmas holiday season. Non-Christian holidays, however, are more likely to fall on days where students are expected to attend schools. State laws that require excused absences to students in this situation are thus more likely to protect non-Christians than Christians.
No! On occasion, governments have a compelling interest in preventing someone from acting on a sincerely held religious belief. For example, states properly prohibit female genital mutilation, even if done for religious reasons. But these instances are rare, and they don’t apply to the protections we measure in RLS.
We believe that non-religious conscience claims should be protected whenever possible, but to limit the scope of our study Religious Liberty in the States has chosen to focus on statutes that protect religious liberty.
Some states have laws banning discrimination on the basis of sexual orientation and then carve our exemptions to protect some individuals and entities (e.g., clergy and houses of worship). Other states don’t have laws banning discrimination on the basis of sexual orientation. However, in these states localities may ban such discrimination, so state laws that protect individuals from being compelled to participate in, say, same-sex wedding ceremonies to which they have religious objections, are still valuable.
According to Church Law & Tax (2022), zoning is one of the top five reasons religious organizations end up in court. However, zoning is largely outside the scope of our state-level index for two reasons.
First, zoning laws and determinations are mostly local. (Any laws at a level more local than the state are not included in RLS.)
Second, the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), signed into law in 2000, outlaws land use or zoning restrictions that impose a “substantial burden” on religious persons or organizations, with some limitations (42 U.S.C. §§ 2000cc–2000cc5).
This is not to say that religious organizations are never mistreated through local land use or zoning decisions, but it does suggest the potential scope for even local variation in these regulations is diminished.
Whether state prisons offer kosher and halal meals to incarcerated individuals, whether Sikhs, Muslims, and Jews can maintain facial hair, whether Rastafarians and Sikhs can keep longer hair—all of these are real issues of religious liberty.
Regulations on dress, grooming, and personal possessions (including of religious items), as well as the availability of special diets and access to religious services, all contribute to a religious person’s capacity for free exercise in a state’s corrections system.
While many court cases indicate this as an active area for religious liberty concerns, we do not include measures of prison regulations in the Index because RLUIPA requires states to accommodate the religious practices of institutionalized persons. See, for instance, Holt v. Hobbs (2015).
Simply safeguarding free exercise by legal means is unlikely to be a person’s or community’s end or purpose. But if the protection of free exercise is necessary to the potential for robust or sincere religious exercise or an authentic search for religion, then the Index analyzes a contributing factor to these more ultimate ends.
Moreover, religious pluralism—by many accounts a positive influence on communities and important even when imperfect in American history—is infeasible without the space for free exercise. Statistical studies of religious pluralism (as much as it is indicative of true and robust conscience within a population), sincerity of practice (or no practice, where likewise rooted in conviction), and religiosity among the religious could benefit from controlling for the “space” provided (or not) for any of these by a state’s safeguarding of free exercise. That “space” is the construct this Index measures.
It is true that many legal concerns and cases arise claiming mistreatment of religious individuals and communities even in the United States, which recognizes religion as a fundamental liberty. A meaningful index, however, needs to reasonably reflect the thing it is meant to measure, and case counts cannot do so unambiguously.
Imagine a state with zero religious liberty cases in a year. This could occur if it is
If an observation of zero cases can reflect any or all of these situations in states, case counts cannot be meaningfully aggregated, let alone combined with other valid safeguards.
Still, statistical analyses of religious pluralism or legal claims of religious discrimination should be greatly aided by a summary measure like RLS that reflects de jure state laws.
Interpretation and enforcement of the law are important for liberty too. However, judicial interpretation is also more difficult to measure objectively, and it is difficult to ensure that one is making the necessary comparisons across all fifty states.
What RLS can do and has done since the 2023 edition is ensure that the statutory laws we draw upon are current and valid, that is, that they have not been deemed unconstitutional nor otherwise superseded by a decision of a court. We do this using a process known to legal scholars and practitioners as Shepardizing, which is described in our methodology.
Even granting that a largely statute-based legal index cannot fully capture the critical role of courts, the letter of the law does matter. It matters to people who base expectations and decisions on those laws before a potential issue arises or reaches a court of law. When a case does come before a court, the existence of a solid, recorded law gives those with sincerely held religious beliefs a justification, even a legal standing, for their religious liberty demands. If states neglect or reject legal safeguards through legislative means, the prospect of judicial decisions in favor of religious liberty are greatly diminished. Moreover, where judges act inconsistently with the law, citizens can appeal as necessary.
