Frequently Asked Questions

Below are several specific examples and explanations why certain governmental provisions relevant to religious exercise were not included in the RLS analysis.

Religious Schools

In Espinoza v. Montana Department of Revenue (2020), the Supreme Court decided that the federal free exercise clause prohibits a state from excluding religious schools from a state scholarship program available to other private schools.

As states sort out how to apply this precedent, its confirmation in Carson v. Makin (2022), and a similar ruling in Trinity Lutheran v. Comer (2017), some interstate variation may remain. However, it may also require an external expert committee to determine where such variation is tractable.

Additionally, RLS does not consider it an issue of free exercise when states do not fund private initiatives in general, but rather a source of variation across states of how they define and separate public and private spheres.

There is another issue that is more important for measures like ours that focus on freedom from barriers erected by states. It is possible, even probable, that states make requirements on private recipients of state dollars that place a hardship on religious institutions.

Take, as one example, any requirements of specific curricula on preschool programs, which may in practice vary in meaningful ways that can be ascertained, hypothetically, from states’ published regulations or bureaucratic documentation.

Measuring these dimensions of interstate variation, however, may continue to be time-prohibitive for our project, which spans multiple issues, since the location of such rules and regulations will be particular to a state and even more varied than the layout of state statutory law.

Zoning and Land Use

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.

Prison Regulations

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 first year of the Index for two reasons.

First, RLUIPA here, too, makes a significant amount of potential state or local variation a federal issue. Namely, RLUIPA charges the Special Litigation Section of the Civil Rights Division in the Department of Justice with investigating and, as necessary, litigating infringements on religious exercise of incarcerated individuals and others who are institutionalized by state or local government (e.g., disabled people).

Since the scope of federal jurisdiction in states is mostly limited to cases involving a “program or activity that receives Federal financial assistance,” some variation at the state level may exist. (42 U.S.C. § 2000cc1)

However, it is a significant challenge to compare fifty state prison systems’ regulations when funding for myriad programs is unclear and particularly when prison regulations are not readily available to the public.

In general, our analysis this year has not addressed state regulations as their structure and organization is more difficult to identify and compare.

Adoption and Foster Care

Because of evolving legal precedence at the federal level (for example, Fulton v. City of Philadelphia (2021) with respect to foster care) we table state-level religious exemptions for adoption and foster care agencies until a time when federal rulings are clearer.

In general, it is important to note that interstate variations in the letter of the law may not be actual variations in practice. States may require time to update their laws, regulations, and policies to reflect Supreme Court decisions or may simply not do so.

Also, for the purposes of this first year’s Index, we have tabled consideration of items where advanced legal expertise is needed to score an item or to ascertain the extent to which a state’s law has been invalidated.

Antidiscrimination

Antidiscrimination laws in public accommodations and in employment are both particularly timely, as the number of protected classes has expanded in recent years, and controversial. However, for the purposes of the Index, these two dimensions of state law are a perfect example of so far insurmountable challenges due to interactions with federal law.

Federal laws define what constitutes a public accommodation for the purposes of federal law, (42 U.S.C. § 12181(7))  while some states define public accommodations differently or not at all.

Federal law limits the applicability of employment laws to employers of a certain size, while some states do not set limits or set different limits. So, for example, in some states a small daycare operated by a religious organization might be excluded from both antidiscrimination public accommodation and employment laws, while in another it might not be excluded or exempted from either.

Moreover, the reason for the exemption or lack thereof may be who owns it, for what purpose it is run, whether a daycare is considered a public accommodation or not, how small is “small,” or that the state does not safeguard any religious daycares.

It is possible that a large team of trained researchers could undertake a systematic textual analysis of all fifty states’ laws that would produce a large set of credible measures in this multidimensional space, but we table this for a future year.

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. 

In the early twenty-first century, some of these safeguards are legislative responses to Sexual Orientation and Gender Identity (SOGI) or antidiscrimination laws, which have admittedly captured the attention of certain Christian denominations but also adherents of other religions and, of course, the media. In a democracy it is true that the most vocal or legally active communities can have a greater impact on laws, holding other things constant. Consequently, the proverbial “squeaky wheels” have a real impact on the laws of a state and, therefore, determine what scope of free exercise protections the RLS project team can consider as safeguards for the purposes of this Index. To be clear, none of the included safeguards expressly target a Christian practice. 

In addressing this concern it is also helpful to note that federal law may eliminate from our consideration for the Index important provisions for other religionists. Federal provisions for the legal possession, use, and transport of peyote by Native Americans are a key example of this. (42 U.S.C. § 1996a (1994))

In our current legal and cultural landscape, there are seemingly unavoidable tensions, even competing rights claims, in many health-care, health-insurance, and marriage laws. Some parties express a positive right to a health-care service, for example, and others, based on conscience, assert a negative right, refusing participation. 

RLS is an index constructed based on legal provisions for religious exercise, so it focuses on the latter without making any statements about the desirability or justice of the former. 

RLS does not consider and our scores are not influenced by the magnitude or extent of positive right provision in states, except in that the existence of those laws gives potential for religious exemption. Our index scores also make no attempt to measure how often or how many religious people exercise their liberties in a given way.

Traditionally, the right to live according to conscience per se has not been as pervasive in law as religion, explicitly stated. This may reflect the greater difficulty of verifying sincere conscience outside of identifiable religions per se and, relatedly, perhaps due to the difficulty of differentiating a sincere case of conscience from simple lawbreaking. To the extent that American jurisprudence discounts other sources of conscience, this is a problem in the law, not with RLS. 

However, this Index can contribute to an understanding of the many ways that laws that are thought to be neutral to certain concerns can still impose burdens upon those concerns and how states might make accommodations to alleviate or remove those burdens. 

In practice, in the cases where states list “conscience” as a qualification for an exemption, we find that most states include religion within that umbrella term, and we consider those conscience provisions consistent with a religious safeguard, scoring items in those states accordingly.

In theory it seems so. But this is only the case if the federal government is not establishing from above affirmative rights that impose duties on religious people. Of course, once a state is itself active in a space, there is no way to argue that a lack of accommodation for religious exercise concerns is consistent with a safeguard. 

Thus, when a state lacks an explicit safeguard in an area, our coding of the relevant items carefully considers the federal context and the scope of the state’s action before determining whether the lack of an explicit protection is putting religious liberty at risk or not. Table 3 puts these two dimensions—federal influence and state action—together for our six groups.

Believing that norms, attitudes, and informal structures are precursors to both good laws and the fullest sense of true freedom, we have anticipated from the beginning the complication that communities that naturally support certain aspects of religious liberty may not feel the need to instantiate safeguards in the law in those areas. This affects how we think about our safeguards.

With respect to the 2022 safeguards, though, this concern is largely allayed. Consider table 3. 

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. 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. 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.

In the case of the health insurance contraceptive mandate on employers (row F), 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, cannot explain away the lack of safeguard based on healthy social norms, since norms cannot invalidate state-wide legal mandates.

So perhaps RFRA (row A) is of the greatest concern in this regard. One might argue that 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. RFRA provisions only lack value added where state populations, their legislators, and judges are perfectly homogenous. 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.

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 

• ideally hospitable to people of different faiths
• extremely inhospitable to different faiths (and consequently homogeneous), or 
• religiously diverse but inhospitable enough that no minority religionist would raise his or her concerns in a court of law. 

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. 

Even granting that a largely statute-based legal index cannot 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.

Still, future iterations of RLS will consider ways case law may contribute to the Index without diminishing the accuracy of the measure. For example, where states have RFRA-like protections from precedent-setting cases of state courts or where court decisions establish a strict scrutiny criterion, it is in theory feasible to consider a dichotomous measure of the presence of such precedence in a state’s law.

RLS 2022 is the first in a series of reports and datasets to be constructed and released on a regular basis. We anticipate our next edition to be released in 2023, reflecting the state of religious liberty heading into that year. Repeated updating, as often as annually, will allow for longitudinal analyses using our data.

Not only will our safeguard codes and scores be updated based on relatively straightforward changes in state laws, our methodology is flexible enough to systematically incorporate a range of changes. 

For example, a change in the federal context (e.g., Dobbs v. Jackson Women’s Health Organization [2022]) will have significant impact on how the related safeguard’s codes are defined in 2023. 

If any state creatively addresses existing safeguard areas in 2023, our codes can adjust to that as well. If any state addressed new issues, justifying new safeguard areas in 2023, our methodology for data collection is ready to consider that too. 

Because we have started by making only limited use of external data sources and reports, due to their limited availability, we are not beholden to their update schedules or continued existence. We will continue to face constraints due to incomplete or emerging federal context, for example, or emerging areas of law that may be of intense interest but with no feasible way to code and score objectively. But these are simply limitations of quantification of qualitative data. Our commitment to objectivity can coexist with expanding and continuing these important efforts.