Federal Context, State Inaction, and Social Norms

The table below provides more detail for two of our FAQs specifically revealing why

  1. it is necessary to account for federal context when determining whether a “missing” exemption is a lack of safeguard or not, and
  2. whether social norms and community attitudes might substitute for missing statutory safeguards.

While the following treats these together, a (1) or (2) below indicates roughly the portion that addresses the particular item above.

In rows B and C, all states are active, dictating how voters can participate and that (in all states) children of a certain age must be immunized. A missing exemption or alternative accommodation (1), therefore leaves religious voters without a potential safeguard. Furthermore, (2) social norms cannot nullify voting procedures or state mandates.

In rows D and E, the federal government is setting various precedents that suggest safeguards would be valuable. (2) A healthy pluralism may substitute to some degree for explicit legal safeguards, but where there is a nationwide precedent, the protection of a community’s tolerance may only pan out partially and on average. Depending on the balance struck between competing rights claims over time, social norms may wane in their effectiveness. (1) A missing exemption, then, leaves state residents unprotected.

In the case of the health insurance contraceptive mandate on employers (row F), (1) we recognize that states that do not have their own contraceptive mandate have no need to make exemptions, and we score this as implicitly safeguarded. States that do have mandates, though, (2) cannot explain away the lack of safeguard based on healthy social norms, since norms cannot invalidate statewide legal mandates.

So perhaps RFRA (row A) is of the greatest concern in these regards. One might argue that (2) a state characterized by healthy civil society and positive pluralism may not need a written RFRA. But this neglects the fact that RFRA provisions are intended to give legal standing to religious entities when burdens arise even inadvertently through rules of general applicability. As state laws proliferate and change over time, any state—no matter how healthy—can run afoul of fundamental religious liberty rights, especially those of minority religionists or otherwise marginalized groups. (1) RFRA provisions only lack value added where state populations, their legislators, and judges are perfectly homogeneous. Still, we leave it to other researchers to explore the relationship between social norms and attitudes and RFRA provisions. It is an empirical question whether RFRA laws are more likely to arise within healthy, pluralist communities or within those where the risks to religious liberty are otherwise greatest.

Scoring State Inaction, with Special Attention to Federal Influence

RowGroupAny Federal Influence?Are States Active?So no explicit safeguard implies…
Federal RFRA has no jurisdiction in states.
It’s complicated.
All states may inadvertently burden religious entities through rules of general applicability.
… it is not safeguarding. (score=0)
BAbsentee VotingNo.Yes.
All states have election laws.
…it is not safeguarding.(score=0)
CChildhood Immunization RequirementsNo.Yes.
All states have childhood immunization requirements.
… it is not safeguarding.(score=0)
DHealth-Care ProvisionIt’s complicated.
Federal law protects practitioners from religious discrimination, and many federal statutes contain conscience protections.
States may extend additional protections (beyond those in federal law).
… it is not safeguarding.(score=0)
EMarriage & WeddingsYes.
Obergefell v. Hodges (2015) confers a nationwide right to same-sex marriage.
Even if a state does not in the letter of its law recognize same-sex marriage or provide any other reason why an entity may be legally compelled to participate in a marriage ceremony or celebration (e.g., explicit statement of this duty via antidiscrimination law), states can (and some do) exempt entities from participating in weddings or marriage celebrations against the teaching of their religion.
…it is not safeguarding.(score=0)
FHealth Insurance Contraceptive MandateYes.
The federal Affordable Care Act imposes a contraceptive mandate for health insurance plans, but current regulations allow an exemption for a broad array of employers with religious or moral objections.
Some states do not have their own contraceptive mandates and so cannot shrink the space for free exercise.
… it is not safeguarding if it has a contraceptive mandate. (score=0)
… it is safeguarding (by omission of the mandate) the maximum level of exemption based on the federal law. (score=1)