After a year focused on national elections, many friends of religious freedom wonder what is next.
The Napa Legal Institute’s Faith and Freedom Index seeks to answer that question by telling the story of religious and regulatory freedom at the state level.
The index takes the position that promoting and defending civil rights (particularly religious freedom) for nonprofits at the state level is the next step to promote the flourishing of freedom in the United States. The index offers a roadmap for states seeking to improve their own civil rights regimes with respect to religious freedom for nonprofits.
The Faith and Freedom Index analyzes and scores states in two areas.
The first is regulatory freedom. Regulatory freedom measures the ability of institutions that promote civil society to flourish. This matters because, as Alexis de Tocqueville explains, “[i]n democratic countries the science of association is the mother science; the progress of all the others depends on the progress of that one.”
The regulatory freedom category takes into account eight types of state laws essential for a faith-based nonprofit to flourish. The overarching requirement is that regulations focus on identifying and punishing wrongdoers, not casting a wide net and burying everyone under a uniform mass of administrative burdens, fees, and paperwork. The index promotes a regulatory approach that balances the government’s interest in oversight and expediency with the preservation of first freedoms and civil rights, including autonomy where appropriate.
The second category is religious freedom. The flourishing of religious freedom has been shown to correlate with the flourishing of all human rights. Accordingly, state religious freedom for nonprofits is relevant to both people of faith specifically and friends of liberty in general. While the religious freedom category covers free exercise of religion, the index measures other first freedoms as well. For example, while not expressly religious, freedom of association is implicated throughout the index.
The religious freedom side of the index looks at six outcome determinative state law factors needed for an association of people to be a community united in faith. States like Kansas and Alabama lead the way in the religious freedom category. Alabama leads in religious freedom because of its constitutional amendment balancing government power and efficiency with accountability for actions that burden the practice of religion. The low-ranking states in the religious freedom category have policies that limit the freedom of religious nonprofits to be who they are. For example, Michigan notoriously requires prior government approval for a religious organization to prefer employees who share the organization’s beliefs. This abrogation of religious nonprofits’ freedom violates not only a proper understanding of free exercise, but also basic associative and free speech protections.
On the regulatory freedom side, states with high burdens that particularly harm small and local organizations are at the bottom of the index. Under their overly aggressive approach, the process is the punishment. Unnecessarily complicated regulations weigh down innocent nonprofits along with the bad actors. It is worth noting that no evidence has demonstrated these high regulatory burdens deter or punish wrongful conduct. Top scoring states for regulatory freedom, in contrast, foster a landscape of problem-solving and do not impose barriers on those seeking to solve problems in their communities.
The ultimate index scores fall along a spectrum. In some states, the contributions of faith-based nonprofits are proactively encouraged. Leaders in these states don’t leave things up to chance, but ensure that the law promotes the necessary work of religious organizations within the state. In other states, faith-based nonprofits are actively singled out for unfavorable treatment, with state leaders even publicly mocking traditional religious practices. But, perhaps most importantly, many states are in the middle. In the “middling” states, there is much opportunity for leadership to promote improvements in some or all of these categories.
The Faith and Freedom Index is fundamentally a call to action. By telling the story of state-level civil rights for faith-based organizations, the index invites state leaders to improve their states’ legal landscapes. The index is an invitation to build a better future.
On the heels of a national election, it’s important not to leave state policy to those who ignore or discourage religious freedom, but to continue defending the religious freedom of nonprofits at both the national and state levels.
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].