Issue Analysis & Categorization

Constitutional & Nondiscrimination Protections

Nearly every state constitution has provisions that echo the critical protections for freedom of religion created by the U.S. Constitution. These protections form the bedrock of our religious freedom by ensuring both that everyone is entitled to their beliefs and that no one’s beliefs are favored by the government. They are meant to ensure that the government treats everyone equally, regardless of their religion or if they reject religion altogether. Similarly, most states have passed nondiscrimination laws that prohibit discrimination based on protected characteristics, including religious beliefs or lack thereof.

Positive Laws & Policies

Establishment Clause and Free Exercise Clause

These items indicate whether the state constitution has a provision analogous to the First Amendment’s Establishment Clause and Free Exercise Clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Many state constitutions reiterate these important protections enshrined in the First Amendment to the U.S. Constitution. These clauses may be interpreted in accordance with federal precedent or state courts may interpret them to provide a greater level of protection than required under federal law.

Strong Taxpayer Standing

This item indicates whether the court systems in a state recognize standing for taxpayers to bring suit against unconstitutional expenditures of state funds. Standing is a legal term that indicates whether someone is qualified to pursue a claim in court. When a state or local government exceeds the bounds of its constitution or the U.S. Constitution (by spending public money to endorse a religion, for example), generally the only way to prevent that expenditure is for individuals to bring suit in court.

At the federal level, there has been a gradual erosion of taxpayer standing, which may prevent individuals from suing the government in federal court. States, however, are not bound by this federal court precedent, and while some states have incorporated elements of federal standing doctrine into their jurisprudence, others use different approaches to ensure access to their state courts. Strong taxpayer standing allows citizens to challenge unconstitutional uses of taxpayer funds, including violations of the separation of religion and government.

Nondiscrimination Laws

This item indicates whether the state has nondiscrimination laws that prohibit discrimination on the basis of religion in various areas of the law, such as employment, housing, public accommodations, and education. The majority of states provide protection in at least some of these areas, and they typically cover a number of other protected characteristics such as race, color, sex, national origin, sexual orientation, gender identity, and disability. It is important to note that, while these nondiscrimination laws typically list “religion” or “creed” as protected characteristics, this category covers discrimination against atheists and nonreligious people as well as people with religious beliefs. Discrimination prohibited by these types of laws can take many forms, including failure to hire a person, failure to promote a person, taking adverse actions in the workplace against a person, failure to address harassment, refusal to admit or serve a person, or firing a person because of a protected characteristic.

Many nondiscrimination laws exempt religious organizations, either by excluding them from the definitions of covered organizations or by including a specific exemption. The U.S. Supreme Court has ruled that in some instances, places of worship and religious schools are entitled to be exempt from various labor laws, including employment nondiscrimination laws. This is called the “ministerial exemption” because it has generally applied to clergy and faith leaders. Similarly, Title VII of the Civil Rights Act of 1964, which federally prohibits employment discrimination, has an exemption for religious organizations: “This subchapter shall not apply… to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” However, some states have nondiscrimination laws that provide an even broader allowance for religious organizations to discriminate. If a state’s nondiscrimination law has exemptions that go beyond those in Title VII or the ministerial exemption, this item will indicate that the state has religious exemptions.

Negative Laws & Policies

Religious Tests for Office

While the U.S. Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” this provision has not always been understood to apply to state offices. Consequently, several state constitutions require office-holders to swear a religious oath or require candidates to practice a specific religion. Others explicitly prohibit atheists or nonreligious people from holding office. It is generally understood that these provisions are unconstitutional and without effect, but they may remain in state law or the state constitution despite being voided by a court. This item indicates that these inactive provisions remain in the state constitution or state law.