The United States Supreme Court sparked renewed interest in federalism last year with its decision in Dobbs v. Jackson Women’s Health Organization. In the wake of the decision, even the progressive left has a new-found appreciation for federalism. Others have called upon state courts to reassert themselves as “the primary guarantors of individual liberty.” The independence of state law should not be a left-right issue, but instead should be recognized as a reality of our constitutional order. It was in the wake of Dobbs that the first edition of the Religious Liberty in the States (RLS) project was released—serendipitous timing for a project focused on reviving interest in state level protections of liberty.

Religious Liberty in the States, the first and only empirical index that compares free exercise protections at the state level, is a project of the Center for Religion, Culture & Democracy, an initiative of First Liberty Institute. RLS assumes federal religious liberty law as a baseline for protections. Despite the significant strengthening of free exercise rights in recent cases like Kennedy v. Bremerton School District and Groff v. DeJoy, state law continues to provide a powerful avenue for litigators to vindicate and legislators to establish the religious (and other) liberties of their citizens. Through RLS, advocates for religious freedom have become aware of infrequently used protections in their states’ laws, and legislators have sponsored legislation that would provide more specific protections for citizens.

The RLS does not compare states to a theoretical ideal. Rather, the states themselves provide the horizon of conceivable free exercise protections in the laws that they pass and the constitutions that they ratify. In this way the CRCD does not make a prudential determination regarding the best scheme for protecting religious freedom but defers to the states to indicate where laws can provide meaningful protection. To do this, CRCD researchers gathered data relating to the existence of state law protections relating to 14 codified safeguards, such as conscience rights for healthcare workers, state-level RFRAs, and religious exemptions from childhood immunizations. These distinct safeguards are further divided into 34 specific areas of potential protection. While this information is publicly available, the RLS data set represents the first time that all this information has been gathered and is readily available in one place. The project’s website also includes links directly to the state code or constitution where the provision can be found.

Using this data, each state was scored based on how many of these free exercise protections are codified in state law, and the states are ranked according to their scores. The index produced some surprising results. Washington, for example, ranks 6th in the RLS with 62% of the measured free exercise protections on their books, but is also the state where Barronelle Stutzman fought for eight years to preserve her conscience rights in the way that she conducted her business. It is important to note that the RLS, like any similar project, is designed to provide a snapshot in time of one aspect of a complex of factors that impact the lived experience of those living and working in various states. So some states might not provide as many legal protections because the cultural pressure that would alert them to a need for such protections has just not been felt in their communities; this might be the case in West Virginia, which ranks 50th in the RLS. In other states, cultural hostility toward religious practice may exist irrespective of the protections that the law provides. It is our hope that the RLS will not only spark interest among litigators and legislators, but also among policy experts and academics seeking to unravel the varied factors that contribute to how and to what extent religious freedom can be protected legally, but also cultivated through education, civic institutions, and other culture-shaping means.

This project aims to illuminate the ways in which state laws can enhance and strengthen the free exercise rights of citizens. It also seeks to be one of many catalysts for the revival of the liberty-guaranteeing advantages of federalism that are only realizable with an independent state law and state constitutionalism that is not unduly beholden to the jurisprudence of the United States Supreme Court.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].