Protecting Religion in the States
Religious faith and religious organizations have always been essential to the success of the American republic. Our nation's greatest leaders have always known this.
In 1798, John Adams famously told the Massachusetts Militia: "Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other." In 1861, at the dawn of his presidency and the Civil War, Abraham Lincoln offered a path forward for a divided America: "Intelligence, patriotism, Christianity, and a firm reliance on Him, who has never yet forsaken this favored land, are still competent to adjust, in the best way, all our present difficulty." In 1952, shortly after he was elected president, Dwight Eisenhower gave voice to a more generalized version of the sentiment when he insisted, "our form of government has no sense unless it is founded in a deeply felt religious faith, and I don't care what it is." While the religious fervor and orthodoxy of the nation's leaders and Americans themselves has ebbed and flowed, one thing is clear: Religion has always played a prominent role in American society.
In recent decades, however, religion's standing in our associational life has declined precipitously. Adam Wolfson observed this trend at the turn of the 21st century in The Public Interest:
Gone is the recitation of the Lord's Prayer at the start of the school day. Gone are moments of silence in school and clergy-led prayers at graduation. Gone are many of the behavioral restraints imposed by a Christian culture — restraints on dancing, Sunday shopping, abortion, divorce, etc. And gone are the communal bonds that closely tied many individuals to their churches, synagogues, and parishes.
Part of the problem is cultural: Robert Putnam famously found that Americans have become increasingly estranged from civic institutions, including religious communities and houses of worship, since the 1960s. But another part of the problem is legal. In 1962, the Supreme Court banished prayers and moments of silence from public-school classrooms. From 1973 to 2022, the Court recognized a general right to abortion. California governor Ronald Reagan signed the country's first no-fault divorce law in 1969, ushering in a trend that would touch every state in the Union by the 1990s. And although some blue laws are still enforced across the country, they have largely fallen by the wayside in recent decades.
It is not the province of government to manufacture religious belief among Americans: The state has no authority to ensure that its citizens have faith, pray, form religious organizations, or engage in charitable works. Our government is bound by the First Amendment requirement that the state shall neither establish any religion nor prevent its free exercise. Given these constraints, lawmakers may wonder whether there are any appropriate ways for government policy to promote faith among citizens and private associations.
Leaders, of course, can and should follow the examples of Adams, Lincoln, and Eisenhower by using their platforms to highlight the importance of faith. But there are also more practical steps that policymakers — especially at the state level — can take to promote religion in the public square.
The law can help or hinder the ability of religious organizations — defined here as faith-based non-profit organizations that have federal 501(c)(3) tax-exempt status — to function. Adopting measures of the former type while reforming or repealing those of the latter would create a legal environment in which religious organizations can more easily flourish and contribute to the common good.
CONSTITUTIONAL PROTECTIONS
The Napa Legal Institute, where I serve as counsel, recently completed a comprehensive analysis of the laws that affect religious organizations in all 50 states and Washington, D.C. The result is the Faith and Freedom Index, which highlights the states with laws that best facilitate the work of religious organizations.
Such organizations, notes the institute's executive director, Mary Margaret Beecher, "bring education, spiritual and moral formation, and humanitarian services to our communities." Yet as the index reveals, many also confront "threats to their religious freedom and the often-crushing weight of regulatory burdens." States like Maryland, Michigan, and Nevada scored especially low on the index for their weak religious-freedom protections, complex tax regimes, and burdensome fundraising requirements. And while states like Texas and Alabama scored relatively high, the "overall conclusion of the Faith and Freedom Index," says Beecher, "is that every state can and should do more to facilitate the work of faith-based organizations."
The U.S. Constitution establishes a baseline protection of religion in the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." But state constitutions exist for a reason: Each state has its own geographical, cultural, and moral singularities that warrant governance tailored to its population's needs and preferences. While a state may not require less protection of any constitutional right than is afforded at the federal level, states are free to offer stronger protections of those rights.
States have good reason to adopt more robust protections of religious liberty than the First Amendment offers. In 1990, the U.S. Supreme Court decided Employment Division v. Smith, holding that a law does not violate the Free Exercise Clause of the First Amendment even if it burdens religious practice, as long as that law is "facially neutral and generally applied." In other words, if a law interferes with religious practices but does not specifically target religion, it likely does not violate the First Amendment.
The Smith decision prompted a long legal battle, beginning with the passage of the federal Religious Freedom Restoration Act (RFRA) in 1993. Lawmakers drafted RFRA in direct response to Smith, requiring federal and state governments to meet an especially high standard before they could burden the free exercise of religion. The bill received overwhelming bipartisan support in Congress, and President Bill Clinton signed it into law. But four years later, the Supreme Court fired back with its decision in City of Boerne v. Flores, declaring RFRA unconstitutional as applied to the states.
Thanks to Smith, the U.S. Constitution does not offer an ideal level of protection for religious exercise. And thanks to Boerne, Congress can only protect Americans' religious activity from federal intrusion. A state that wants to help religious organizations form and flourish would do well to ensure that its law facilitates just that.
In the wake of Boerne, several states passed their own religious freedom restoration acts. Like their federal counterpart, these acts limit states' ability to burden their residents' religious liberty. Such measures are certainly welcome. However, writing important religious-liberty protections into statutes makes them susceptible to repeal or overrule by unfriendly legislatures and courts. Enshrining them in state constitutions, by contrast, makes it harder to weaken or eliminate them.
The Alabama state constitution includes model language to offset the weaker protections of the post-Smith First Amendment:
(a) Government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) Government may burden a person's freedom of religion only if it demonstrates that application of the burden to the person:
(1) Is in furtherance of a compelling governmental interest; and
(2) Is the least restrictive means of furthering that compelling governmental interest.
(c) A person whose religious freedom has been burdened in violation of this section may assert that violation as a claim or defense in a judicial, administrative, or other proceeding and obtain appropriate relief against a government.
States with and without RFRA statutes would be wise to incorporate similar language into their constitutions.
BLAINE AMENDMENTS
Many state constitutions contain measures known as Blaine amendments, named for Republican House speaker, senator, and secretary of state James Blaine of Maine. These amendments come in broader and narrower flavors, with narrower ones preventing religious schools from receiving government funding. The Pennsylvania state constitution, to take one example, states: "No money raised for the support of the public schools of the Commonwealth shall be appropriated to or used for the support of any sectarian school."
Other states have broader Blaine amendment language that prohibits government funding of not just schools, but any religious organization or program. The Georgia state constitution, which has a "separation of church and state" provision, declares: "No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution."
Recent Supreme Court decisions, especially Trinity Lutheran v. Comer, likely render state Blaine amendment language unenforceable. But leaving bad laws on the books, even if they are unenforceable, is poor state policy. When the Supreme Court overruled Roe v. Wade and Planned Parenthood v. Casey in 2022, some states discovered they had old statutes that restricted or criminalized abortion. Because Roe had rendered those statutes unenforceable, many states never bothered to repeal them. When the Court overruled Roe, those states were left to clean up old messes instead of crafting new policies.
A state that wants to create an environment friendly to religious organizations should not rely on current Supreme Court precedent. Instead, its lawmakers should proactively repeal any Blaine amendment language and free religious organizations from worrying about a sudden cut in funding if the Court undergoes a shift in ideology.
STATES OF EMERGENCY
As state and local governments exercised emergency powers during the Covid-19 pandemic, it quickly became clear that many lacked sufficient legal protections for religious liberty during states of emergency. Some states shut down all communal activity, while others treated religious activity less favorably than comparable non-religious activity. The Supreme Court struck down the latter approach in Tandon v. Newsom, but these occurrences raised serious concerns about governments' ability to violate the rights of religious people and organizations during a declared emergency.
Several states responded to the threat. Many passed laws providing that, at a minimum, government cannot treat religious conduct less favorably than secular activities of comparable risk. North Dakota, for example, amended its statutes to say that the state government may not
[t]reat religious conduct more restrictively than any secular conduct of reasonably comparable risk, unless the government demonstrates through clear and convincing scientific evidence that a particular religious activity poses an extraordinary health risk; or [t]reat religious conduct more restrictively than comparable secular conduct because of alleged economic need or benefit.
Other states created more absolute protections. The Montana legislature amended the state's statutory code so that it now declares, "religious services [are] essential services to the welfare of the people of the state." Lawmakers also granted absolute protection to religious worship by providing that the state's emergency powers "may not be construed to give any state, local, or interjurisdictional agency or public official authority to...interfere with or otherwise limit, modify, or abridge a person's physical attendance at a religious service or operation of a religious organization."
Texas adopted a similarly absolute protection of religious worship during a time of emergency and enshrined that protection in its constitution. Article I, Section 6, of the Texas state constitution now declares:
This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.
Others states should consider enacting their own measures declaring that religious assembly and worship are essential activities and must be treated as such, that religious activities cannot be treated less favorably than non-religious activities, and that the government has no authority to restrict religious exercise or worship during a state of emergency. Again, lawmakers should favor constitutional protections over statutory ones.
NON-DISCRIMINATION LAWS
Federal civil-rights statutes have established certain non-discrimination rules that apply to all states. However, most states have additional non-discrimination laws containing provisions that pose potential problems for religious organizations.
These provisions generally fall into two categories: public-accommodation laws and employment laws. Public-accommodation laws prevent any organization from discriminating on the basis of religion, sexual orientation, or gender identity, among other traits. These laws apply when an organization provides to members of the general public any "goods, services, privileges, facilities, advantages, and accommodations" — language that covers everything from lodging and food services to movie screenings and concerts. Similarly, non-discrimination laws related to employment prevent employers from making hiring, promotion, termination, or other employment-related decisions on the basis of characteristics that include religion.
The best way for states to facilitate religious liberty on this front is to refrain from enacting additional non-discrimination laws in public accommodations and employment. Since the federal Civil Rights Act already applies to the states, most of these laws are arguably superfluous. But because state laws can be broader than federal ones, they are often more burdensome. States can provide a layer of protection and stability for religious organizations by refusing to enact these additional non-discrimination regimes.
If a state has non-discrimination laws in place, it should exempt religious organizations from them when they conflict with the organization's spiritual doctrines or practices. Two types of legal protections can address these concerns, the first being statutory exclusions from the state's employment laws. Alaska automatically excludes religious organizations from the definition of "employer" in its statutes, clarifying that the term "means a person, including the state and a political subdivision of the state, who has one or more employees in the state but does not include...a fraternal, charitable, educational, or religious association or corporation, if the club, association, or corporation is not organized for private profit" (emphasis added).
Alternatively, some states balance the desire to prevent certain kinds of discrimination (such as that based on race) with the desire to protect religious organizations. Iowa does so by exempting religious organizations from the categories that tend to cause the most trouble, excusing from its non-discrimination regime "[a]ny bona fide religious institution or its educational facility, association, corporation, or society with respect to any qualifications for employment based on religion, sexual orientation, or gender identity when such qualifications are related to a bona fide religious purpose." The statute identifies religious qualifications "for instructional personnel or an administrative officer" as a "bona fide" qualification. These accommodations allow religious organizations to thrive and contribute to society while remaining faithful to the principles that give their work meaning.
CORPORATE-GOVERNANCE LAWS
Corporate-governance laws regulate the way corporations operate internally. They cover such matters as the corporation's formation and dissolution, the election of board members and officers, director and officer standards of conduct, and organizational notice and meeting requirements. While these laws might not seem related to religion, their application to religious organizations can interfere with those organizations' ability to adhere to their religious principles.
California governs non-profit religious associations with rules distinct from the general non-profit laws, providing greater freedom for religious organizations to operate according to their beliefs. In this area, California's law should serve as a model.
Other states may not have a separate legal code for non-profit religious corporations, but they still provide crucial protections for situations when an organization's religious beliefs conflict with corporate-governance laws. A good example appears in Idaho's non-profit corporation law, which states: "If religious doctrine governing the affairs of a religious corporation is inconsistent with the provisions of this act on the same subject, the religious doctrine shall control to the extent required by the constitution of the United States or the constitution of this state or both." Several state corporate-governance laws include identical or similar language. This ensures that laws generally applicable to corporations do not override the doctrines of a religious organization.
An additional corporate-governance law that is crucial to protecting religious organizations' liberty is a provision acknowledging that directors may rely not only on professionals in general, but on religious guidance in particular, when making decisions. Many of the questions a religious organization faces — from employment matters to the projects it pursues — will have significant religious components. Expressly permitting the board of directors to rely on advice from religious figures allows it to govern the organization according to its beliefs without worrying about liability under corporate-governance laws. Oregon law contains the ideal language here, providing that directors of religious corporations may rely on "religious authorities and ministers, priests, rabbis or other persons whose position or duties in the religious organization the director believes justify reliance and confidence and whom the director believes to be reliable and competent in the matters presented."
CHARITABLE-REGISTRATION LAWS
Many states have laws requiring organizations to register with the state government before they can solicit charitable contributions. Among the states that have such registration laws, some grant exemptions to all religious organizations, some offer only limited exemptions, and others require organizations to apply for the exemption. Certain states also limit registration requirements to organizations that use a paid professional to solicit contributions.
In some states, registration may require an organization to conduct an annual financial review or third-party audit of financial statements as a condition of maintaining registration. This generally applies if the organization receives annual contributions over a certain threshold. Wisconsin law, for example, requires a "reviewed financial statement for the most recently completed fiscal year of the charitable organization, if the charitable organization received contributions in excess of $300,000...but not more than $500,000." If the charitable organization received contributions over $500,000, the law requires it to submit an "audited financial statement" for that year.
Receiving donations from donors in a new state may trigger registration and audit requirements as well. Donations from new out-of-state donors could help the organization fulfill its mission, but accepting them may force the organization to spend time navigating charitable-registration laws, filling out paperwork, and spending donor funds to pay for filing fees and perhaps an audit by a certified public accountant.
These charitable-registration and audit requirements can impose a severe burden on religious organizations. Such organizations do not generally receive business income, but rather sustain their operations with charitable grants and donations. They typically try to spend their funds as efficiently as possible, using donor money to pay staff, finance projects, and publish materials that help advance their mission.
Recognizing this, states should exempt religious organizations from such onerous laws, at the very least in situations where the organization does not hire a full-time fundraiser and is thus much less susceptible to solicitation issues. Such exemptions should be automatic for religious organizations.
Registration and audit exemptions respect the beneficial social role of religious organizations as well as the intent of charitable donors. Donors want their gifts to fund the missions of the religious organizations to which they donate; their dollars should not be needlessly diverted to paperwork, government fees, and accountants.
TAX REGIMES
Religious organizations are generally subject to three areas of taxation: corporate income tax, sales tax (on both the organizations' sales and purchases), and property tax. It is logical to tax business corporations, which exist to make money for their owners. Those taxes are meant to take a portion of corporate profits and use them to advance the common good.
But religious organizations operate primarily to advance religious and charitable purposes. In other words, the work of religious organizations is itself directed toward promoting the common good. It is therefore generally inappropriate to collect taxes on funds provided by charitable donors.
An ideal state tax regime would include a broad exemption for religious organizations in each taxation category. One way to accomplish this is to offer a blanket exemption for all 501(c)(3) organizations. Minnesota's income-tax exemption offers a good example: "[O]rganizations...are subject to taxation under this chapter unless they are exempt from income taxation pursuant to Subchapter F of the Internal Revenue Code." Without unnecessary complexity, Minnesota's tax code makes clear that any organization with federal 501(c)(3) tax-exempt status is exempt from the state tax code as well.
Lawmakers could easily apply such exemptions to state income and sales taxes, but property-tax exemptions require a different approach. The latter are generally applied based on the property's use rather than on the nature of the property owner. For example, the New Mexico state constitution provides that "all church property not used for commercial purposes...[and] all property used for educational or charitable purposes...shall be exempt from taxation." Many states provide similar exemptions to property taxes if the property is used for non-commercial religious, charitable, or educational purposes.
This broad property-tax exemption for religious or charitable purposes does not prevail everywhere: Washington state law limits the property-tax exemption to churches, adjacent parsonages and convents, and up to five acres of grounds. The property-tax exemption in Washington, as in many states, does not include religious organizations that are not primarily places of worship.
As long as a religious organization — whether it be a church, a school, or a charity — is funded by charitable donations and not operated for profit, there is no reason it should be subject to these various taxes. The ideal state tax regime would provide tax exemptions to income and sales taxes for all 501(c)(3) organizations as well as an exemption to property taxes for any property used by a non-profit entity for religious or charitable purposes. These exemptions should apply automatically, without requiring burdensome paperwork and filing fees.
A BIPARTISAN CAUSE
Beyond providing a place for worship, religious organizations do the everyday work of educating children and adults, feeding the hungry, sheltering the homeless, and engaging in other good works that a healthy society relies on to function. Some states are promoting this work well; others are not. The most helpful state laws do not fall on one side of a partisan line: Exemplary laws are on the books in both Texas and Minnesota, in Idaho as well as Oregon. No state comes close to having a perfect environment for religious organizations, but many states — both red and blue — have laws that can serve as models nationwide.
Policymakers, religious leaders, and anyone who wants to promote the good that religious organizations do should attend to the state laws that affect these groups. Thanks to states like Alabama, California, Texas, and Montana, we have a blueprint for establishing a legal structure where religious organizations can thrive as they work for the common good — other states just have to be willing to follow it.
