The Forgotten Protection for Individual Liberty

Religious freedom protections at the federal level have been bolstered in the last few years by Supreme Court rulings that have provided much more common sense readings of the free exercise and free speech clauses of the Constitution as well as federal statutory law. These are welcome developments for advocates of liberty. It is important to note, however, that even at their best, federal protections for civil liberties provide a floor for the protection of individual liberty. States and localities are free to provide more robust and specific legal protections for their citizens. Recognizing this, my organization, the Center for Religion, Culture & Democracy, an initiative of First Liberty Institute, launched the Religious Liberty in the States (RLS) project in 2022. The RLS, now in its second edition in 2023, is an annual data project and index measure that reflects the current landscape of free exercise protections found in state law.

The launch of the RLS Project and rankings in 2022 came just months after the Supreme Court’s landmark decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade (1973) and returned the power to regulate abortion to the individual states. Dobbs re-centered the abortion debate in states rather than at the federal level, and in the process rekindled an appreciation for federalism on both left and right. Certainly, the RLS project is primarily concerned with advancing the state of religious liberty law, but we also hope that by focusing on state statutory and constitutional law it can serve a useful role in accelerating conversations that recognize the reality that states and state courts have always been the primary guarantors of individual liberties in our constitutional system. The independence of state law and the republican form of government established in the U.S. Constitution provide advantages in cultivating and guaranteeing freedom.

Religious Liberty in the States

The RLS project is not and does not purport to be a comprehensive measure of the lived experience of any individual in any particular state. What constitutes liberty is complex and combines sociological, cultural, religious, and legal factors, each of which is subject to or elusive of quantitative measurement in different ways. Like any similar instrument, the RLS provides a snapshot of one aspect of one type of liberty at one moment. Specifically, the data set on which the RLS rankings are based is focused on the presence or absence of specific state statutory or constitutional provisions that provide free exercise protections to citizens as of December 31 of the year prior to each edition’s launch. The RLS has already begun to measure changes in the law over time, and each edition will become more robust and expansive enabling scholars and practitioners to note trends, focus advocacy and policy recommendations, and alert citizens of the protections that they currently enjoy or lack.

To maintain credibility and reliability, the RLS is intentionally narrow. Every safeguard that is included in the RLS has been carefully vetted and researched to ensure that a standardized methodology can be applied responsibly across all categories. The rankings compare states to one another rather than a theoretical ideal. By legislating in particular areas, the states collectively create the horizon of possible protections. The RLS project makes no prudential judgment regarding the best scheme for safeguarding religious freedom. This means that some of the results may be surprising, with states like Illinois and New Mexico scoring quite high, and others like West Virginia scoring quite low. These results, keep in mind, measure only one aspect of religious freedom—the presence or absence of legal safeguards of free exercise in state law.

The Independence of State Law

The United States has grown substantially in size, population, and diversity since 1787 when the Constitution was first ratified by a state. The small, relatively homogenous population, however, was still conscious of the fact that local and state governments were more aware of local issues and more responsive to democratic accountability than a distant, powerful centralized government. The checks and balances of the three branches of the national government provided one barrier to the concentration of power, but the establishment of a federal system made up of sovereign states arguably provided an even more powerful barrier. However, the protections provided by state laws have weakened as the independence of state legal systems has eroded in favor of a stronger national government.

Today, many state court systems have adopted an approach to their own constitutions that bind state courts to interpret state constitutional rights provisions in a way that is identical to the way that the federal courts interpret analogous federal constitutional provisions. This is known as “lockstepping.” Critics argue that such constraints exceed the jurisdiction of even a state’s supreme court with regard to the interpretation of its own laws by rendering state constitutional provisions redundant and subservient to federal constitutional law. Regarding the U.S. Supreme Court’s rulings to those of the New Jersey Supreme Court’s constitutional interpretation, Justice Robert L. Clifford wrote, “[the] Court may be a polestar that guides us as we navigate the New Jersey Constitution, [but] we bear ultimate responsibility for the safe passage of our ship.”

The Supreme Court of California, for example, made reference to lockstepping prior to the Civil War, but directly abdicated its responsibility to guard an independent and substantive state constitutional system when it wrote in Gabrielli v. Knickerbocker (1938), “cogent reasons must exist before a state court in construing a provision of the state constitution will depart from the construction placed by the Supreme Court of the United States on a similar provision in the federal constitution.” Does this mean that the assumption of every state judge in California, therefore, is that he or she is merely an adjunct and junior partner of the federal judiciary?

The framers of the Constitution would be shocked by this. They envisioned a system in which the federal judiciary was not only the “least dangerous branch,” but was also limited in scope and significance. The shadow that U.S. Supreme Court decisions cast over public and private life is longer and darker than they could have ever imagined. States were intended to be a check on a centralized government, and a more proximate and responsive locus of power for the protection of individual liberty. As counterintuitive as it may seem to some people today, the federal government’s power is limited by the Constitution. The commerce clause and other enabling provisions have been tortured into allowing justification for all manner of federal expansion from FDR’s New Deal to the federal criminal code. The Constitution enumerates the powers of the federal government and reserves all other powers to the states. Even the Bill of Rights, which was controversial when proposed, represents a discreet list of freedoms, and did not initially apply to the states. There have been historical resurgences of federalism at the Court, most notably during William Rehnquist’s chief justiceship (United States v. Lopez [1995], United States v. Morrison [2000], and to a limited extent, during the Obama administration, NFIB v. Sebelius [2012]). A resurgence of independent state law is always a boost to federalism and, consequently, individual liberty.

The Religious Liberty in the States project shines a light on two crucial, but now marginalized aspects of our constitutional system—independent state law and democratically elected legislative bodies.

The Necessity of Republican Government

Related to the federal structure of the constitutional system is its republican structure. Article IV, Section 4 of the United States Constitution reads in pertinent part, “The United States shall guarantee to every State in this Union a Republican Form of Government.” Each state government is established with a legislative body that has been democratically elected as the legitimate lawmaking arm of the government. The clause has never been directly applied by the Court, which has found that it is nonjusticiable, and therefore not presenting an issue that can be litigated or a right that can be vindicated in court (see Luther v. Borden [1849], Pacific States Telephone & Telegraph Co. v. Oregon [1912], and Rucho v. Common Cause [2019]). The Court has held that Congress, rather than the judiciary, is the proper government organ for correcting departures from whatever it is that is guaranteed by the Guarantee Clause. It is hard to envision a different solution because of the Court’s abstention in these rare cases. This judicial passivity has been somewhat controversial with legal scholars because the practical effect has been to put the Court’s stamp of approval on many types of mechanisms for law-making that are not “republican.” This includes direct referenda at one extreme and administrative and executive promulgation insulated from democratic accountability at the other, although Congress and the executive branch have found some minimally constitutionally compliant means of doing this.

The growth of the administrative state is coincident with a decline in the constitutional mechanisms for lawmaking that are consistent with republicanism. The growth of the administrative state and the various enabling acts that establish it has meant that most of the laws that shape our lives are not technically laws, but regulations that carry the force of law. They were not deliberated by the elected representatives of the people but promulgated by and through administrative agencies that are mostly impervious to democratic accountability. Some are even insulated from judicial oversight. This is true on both the state and federal levels of government.

While the RLS is exclusively concerned with state law, a notable federal example is instructive for understanding the dysfunction inherent in this scheme. A portion of the Affordable Care Act (ACA), passed by Congress in 2010, empowered the Department of Health and Human Services (HHS) to define the specific requirements of health insurance coverage provided by employers to their employees. The HHS included contraception as a required benefit but did not make provision for any exceptions related to religious or conscience objections on the part of the employer. In 2014, the Supreme Court held in Hobby Lobby v. Burwell that privately held for-profit corporations could claim exemption from this requirement on the basis of the owner’s religious beliefs by a razor-thin 5-4 margin.

It is remarkable that it was unelected bureaucrats, rather than the elected representatives of the American people, who were responsible for the regulation that sparked this and several other similar cases challenging what became known as the contraceptive mandate. Whether the First Amendment provides protection from such a mandate is a question entirely separate from the question of who should make the demand—Congress or a political appointee filling a role in the federal bureaucracy. It is true that there is a period of public comment and a process for promulgating administrative regulations, but it is not a transparent process that imposes meaningful restraints on the government. While the underlying circumstances of Hobby Lobby involve the federal bureaucracy, state legislatures have adopted many of the same strategies that bypass serious, public, and politically significant debate on these types of divisive issues. Every provision that is tracked in the RLS is a provision that has been debated and passed by an elected state legislature and not an administrative body.

Additionally, it is not uncommon for courts to frustrate the rightful roles of the three branches of government. A system in which the law is what judges say is rife for exploitation by activists who merely shop for a judge willing to allow preferred outcomes to drive their judicial analysis. Another religious freedom case, the recently abrogated TWA v. Hardison, is illustrative of what has happened in dozens of other areas of the law and at both the federal and state levels. The Supreme Court in Hardison considered Title VII of the Civil Rights Act of 1964, which was clearly designed by Congress to provide free exercise protections to employees in the workplace. The Court interpreted the provision in such a way that it was all but gutted of any meaning. This interpretation of the law disadvantaged a class of people that Congress clearly intended to protect until just this year when the Court in Groff v. DeJoy reconsidered the case and articulated a new understanding of the provision.

Hardison presents an interesting situation in a way that other cases dealing with individual liberties do not. The Court was not considering a constitutional question but was addressing the proper interpretation of a statute. Congress, therefore, could have at any time amended the underlying Act to correct the Court’s erroneous interpretation of the law. There is precedent for Congress to do something similar in other cases. The Religious Freedom Restoration Act was passed in 1993 in response to the Supreme Court’s decision in Employment Division v. Smith (1990), and Congress amended the Gun-Free School Zones Act in the wake of Lopez, a rare case in which the Court found an act of Congress to be an impermissible use of the Commerce Clause.

The reality is that Groff v. DeJoy should never have been necessary in a functional republic. Dismissing the fact that Hardison was improperly decided, the democratically-elected Congress could and should have acted to correct the problem that Hardison presented. The same is true of Bostock v. Clayton County (2020)—holding that “sex” in the relevant statute encompasses sexual orientation and gender identity—and a myriad of other state and federal cases of judicial activism.

The RLS shines a light on two crucial, but now marginalized aspects of our constitutional system—independent state law and democratically elected legislative bodies. Independent systems of state law provide a check on the threats to liberty presented by power concentrated in a central national government. A republican form of government at all levels guards us against the threat to individual rights presented by an unelected or otherwise unaccountable few holding the reins of power that were intended for legislatures. After a decades-long erosion of these principles, there are finally some glimmers of hope that we will see a movement back to the constitutional ideal of federalism and a tamed administrative state. There was a revival of federalism by the Rehnquist Court through the 1980s to 2000s, and Dobbs, as mentioned above, has platformed the issue again. In 2019 the Court was presented with the chance to overturn a precedent that had strengthened the power of the administrative state, but declined to do so. But in the Fall of 2023, with a different composition of the Court, another question regarding a problematic aspect of the administrative regulatory regime will be revisited and possibly overturned. By focusing on state law, the RLS is well-positioned to play a significant role in rekindling popular and political interest in federalism and republicanism for the sake of advancing and securing the liberty to which all Americans are entitled.

This piece originally appeared in Law and Liberty and is being republished with permission.

Trey Dimsdale is Executive Director of the Center for Religion, Culture & Democracy, an initiative of First Liberty Institute where he also serves as counsel.
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