Issue Analysis & Categorization
Special Privileges for Religion
Many states have laws that privilege religious organizations and religious beliefs. Such measures exempt individuals, groups, or businesses from particular legal requirements that conflict with their religious beliefs. For example, nearly half of states have broad statutes that may allow religious individuals and organizations to avoid general legal requirements that burden their exercise of religion. Similarly, most states have created special privileges for religious organizations and places of worship, allowing them to avoid taxes or other legal requirements that apply to other types of nonprofit organizations.
Rather than enhancing religious freedom, these laws and policies undermine it. They often seek to enshrine a particular set of religious beliefs (such as those held by Christian nationalists) into the law by creating exceptions to specific legal requirements tailored to suit those groups.
For example, a state law may create a religious exemption to civil rights laws specifically for wedding service providers so that they are not required to serve same-sex couples. Alternatively, the law may purport to protect individuals and businesses from discrimination because of their beliefs, but only to protect certain narrow beliefs, such as the belief that the only moral form of sexual intercourse is between heterosexual married couples. Although limited religious exemptions must be included in some laws in order for them to comply with the First Amendment’s Free Exercise Clause, the exemptions Christian nationalists seek are significantly broader, in some cases undermining the very purpose of the law.
Positive Laws & Policies
Limitations on Clergy Privilege
This item identifies state laws that limit clergy privilege to protect the safety and well-being of children. Clergy-penitent privilege is a right recognized in all 50 states that provides confidentiality for discussions between religious leaders and their followers. This privilege is most frequently referenced in the Catholic practice of confession, but it pertains to other religions as well. When it applies, this privilege generally prohibits any court from compelling testimony from a clergy member. Unfortunately, because the privilege is so broad, it can sometimes prevent the reporting of child abuse and lead to other negative outcomes.
A significant number of states seek to protect youth by making clergy mandatory reporters for suspected child abuse and neglect, like educators and health care providers. This means that if there is a reasonable cause for a clergy member to believe a child is being abused, they are required to report this suspicion to state authorities. A smaller number of states provide explicit exceptions to the clergy privilege concerning child abuse. This is important because, even with mandatory reporting, if communication is still privileged, it is difficult or impossible to investigate the situation or enforce the required reporting.
Secular Celebrants
States offer numerous options for solemnizing or officiating a marriage, but all too often, these options exclude the possibility of a nonreligious or secular celebrant. States may disallow secular celebrants either by failing to include them in the statutory list of who may solemnize a wedding, which forces any potential secular celebrant to register to temporarily perform marriages, or by placing religious restrictions on options such as self-officiation of marriages. This item indicates that there are state laws or court decisions that provide nonreligious couples equivalent marriage solemnization or officiation options to religious couples.
Negative Laws & Policies
Religious Exemptions to Enforcement
This item assesses state laws that include religious exemptions to rules that otherwise apply to everyone else. Many of these religious exemptions are specifically sought by Christian nationalists because they align with their beliefs, and therefore the exemptions allow them to ignore provisions of law with which they disagree.
For example, several states allow religious foster care and adoption agencies that receive state funding to discriminate against potential parents and, in some states, even the vulnerable youth themselves, based on their beliefs. This most negatively impacts single people, LGBTQ people, atheists, and religious minorities. These laws are especially harmful to foster youth because they reduce the number of qualified families, which in turn denies them the chance to find loving, permanent homes.
During the COVID-19 pandemic, a number of states passed exemptions that excuse religious organizations from being required to follow public health restrictions implemented during emergencies. These laws vary significantly. Some allow in-person gatherings so long as other precautionary rules are followed, while others completely eliminate the ability of the state to enforce public health rules on religious organizations, whether they relate to the pandemic or other emergencies. In a few states, lawmakers passed sweeping exemptions that shield religious organizations from civil and criminal liability, potentially even outside the context of public health emergencies. These laws are exceptionally dangerous as they could result in religious organizations, including schools, hospitals, and others, never being held accountable for wrongs they commit. It remains to be seen how courts will apply such broad exemptions.
Tax Exemptions for Places of Worship
Most states exempt churches and other places of worship, as well as other religious organizations and nonprofits, from various state taxes. However, this item indicates laws or policies that provide special tax exemptions or limited filing requirements for religious organizations or places of worship that are not available to secular nonprofits. For example, some states allow religious organizations or places of worship to omit initially filing for tax exemption, while others may exempt these organizations from filing an annual return. Without these important filings, it is impossible for the government to detect fraud and misconduct within the religious organizations to which it grants tax exemption.
Most states offer tax exemptions for parsonages or other dwellings provided to clergy, in effect subsidizing their housing. Such exemptions are not typically available to secular nonprofits. Although similar provisions exist in federal law, this item indicates exemptions from state-level taxes.
Nearly every state offers tax exemptions for property owned by religious organizations and places of worship, but such exemptions are not typically available to other nonprofits. In some instances, these exemptions are granted automatically to places of worship, but only granted conditionally to other nonprofits or granted after a lengthy approval process.
Some states offer religious organizations and places of worship an exemption from state sales tax that is not available to other nonprofits. For example, these states may limit the types of nonprofits that can apply for sales tax exemptions, or they might automatically approve religious organizations for these exemptions while requiring other types of nonprofits to apply for approval.
State Religious Freedom Restoration Acts
View the National Summary Map for this issue.
Based on U.S. Supreme Court precedent, the First Amendment’s Free Exercise Clause does not limit the ability of the federal government to pass neutral laws that generally apply to everyone (or every relevant party), even if they incidentally burden religious exercise. The Court has noted that to do otherwise would allow individual religious belief to supersede the law of the land, resulting in an unworkable society where laws could not be applied evenly.
Despite this warning, Congress passed the Religious Freedom Restoration Act (RFRA) at the federal level, and a number of states have followed by passing their own version of this law. RFRAs require the government to meet a very difficult test whenever it burdens religious exercise—they must show that the reason for the government action is compelling and that the government used the least restrictive means to achieve that goal. In effect, this creates a widely applicable exemption that religious individuals and organizations can use to insulate themselves from state law by claiming that the state is infringing on their religious exercise.
Over time, as predicted by the Supreme Court, RFRAs have been misused at both the state and federal levels to carve out exemptions that privilege particular religious viewpoints. Christian nationalists seek to apply these laws in new ways, such as undermining civil rights laws that protect LGBTQ people and women from discrimination. This item indicates that the state has a statute similar to, or even more expansive than, the federal RFRA.
Anti-Blasphemy Laws
State anti-blasphemy laws were long ago ruled unconstitutional by the U.S. Supreme Court. The Joseph Burstyn, Inc. v. Wilson (1952) decision held that “[i]t is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.” This item indicates that the state law still contains inactive anti-blasphemy provisions.
