The Worst States for Religious Liberty All Lack RFRAs

The Religious Liberty in the States (RLS) index captures the extent to which people have the freedom to practice their religion in their everyday lives based on their state’s laws, including how they work, spend time with their families, and engage with their communities. To do this, the Index examines twenty-nine statutory items that contribute to eleven distinct safeguards.

To calculate each state’s score in the RLS rankings, the eleven safeguards were weighted equally. However, some of the safeguards are very specific (such as protecting health-care practitioners in certain circumstances), while others provide more wide-ranging protection. The safeguard that applies to the widest range of people in the most varied situations is the presence of a Religious Freedom Restoration Act (RFRA).

What Is a Religious Freedom Restoration Act?

A RFRA (pronounced riff-ruh) is a type of statute designed to protect the ability of individuals and organizations to exercise their religion when other laws inadvertently burden or restrict their ability to do so.

In 1997, the Supreme Court decision in City of Boerne v. Flores found the federal RFRA did not apply to states and therefore was only applicable at the federal level. Since then, many states have enacted laws patterned after the federal RFRA. A law is identifiable as a RFRA by language that provides  protection from any unintended consequences or government burdens from other laws. Some states passed RFRA laws shortly after the federal court decision, while a number of others attempted to pass laws in 2015. The most recent RFRA laws took effect in 2021, nearly 25 years after the Boerne decision. We hope RLS inspires other states to follow suit.

For example, the Index’s top-ranked state, Mississippi, has a well-tested RFRA. In 2020, it safeguarded the freedom to attend drive-in church services, and it was expanded to include rights of Indian Tribal members to wear tribal regalia and other culturally significant objects at public events.

Which States Have RFRAs?

Twenty-two states have a current RFRA that they have passed as a state statute, and Alabama is the only state to include a RFRA in its state constitution. This means that twenty-seven states do not have any kind of RFRA protecting the religious practice or expression of the people living in that state. Based on Census estimates of state populations as of July 2021, an estimated 175.4 million Americans (more than half of the US population) are living without a RFRA in their state.

Notably, the bottom twelve states in the Index do not have a RFRA. Recall, this isn’t because a RFRA carries more weight in the Index calculation; it carries one-eleventh of the weight just like every other safeguard. Still, it appears significant for the fact that the lowest-ranking states have this lamentable fact in common. Put more positively, these lagging states have a clear road to improvement: they can pursue codifying RFRAs to protect free exercise in their states. By contrast, there are thirteen states in the top twelve spots in the rankings (Alabama and Pennsylvania are tied for twelfth place), and ten of them have RFRAs.

Find out which states do and don’t have RFRAs here.

How Is the RFRA Scored in the RLS Index?

All of the RFRAs in the twenty-three states that have some version of the law serve a common purpose: to safeguard religious liberty across state laws, present and future, that might impose burdens on religious people. But these state RFRAs differ in some obvious ways, too, including language that seems to make some weaker or stronger.

For example, some of these statutes use language as broad as “shall not restrict” religious freedom or “shall not burden,” while others take a seemingly weaker form by saying “shall not substantially burden” (emphasis added). States also differ in the standards they set for what can justify a burden to religious freedom. In some states, a law that might burden religious expression must pass the high bar of being “essential” for furthering a “compelling government interest,” while other RFRAs require only that a rule furthers any state purpose. (Direct links to each state’s RFRA are available on the RFRA safeguard page.)

In plain English, these words might convey different strengths of meaning. However, in practice, the strength of any given RFRA is decided by the interpretation of the courts in that state. For this reason, the RLS index only focuses on the existence of such laws. If a state has a RFRA, it scores a 1 for that safeguard; if it does not, it scores a 0.

The Index constructs each state’s score by adding its 11 safeguard scores, dividing by 11, and multiplying by 100. Consequently, the final RLS index score for each state can be understood as

a percent of the observed safeguards. This means that the official RLS index is an equal weighting of eleven safeguards, and the specific RFRA safeguard only accounts for 1/11th of the final score, or about 9 percent. Finally, this means that a state that currently lacks a RFRA could improve its overall score by 9 percent by passing one.

Are you curious to see how the state rankings would change if the RFRA was weighted more or less significantly? We have made the data available for all researchers to explore questions like these. Access the raw data and more resources, including the full report, here.