Examining State Religious Freedom Policies and Impacts in 2019

In spring  2015 Indiana passed and amended its Religious Freedom Restoration Act, which extended legal protections to individuals preventing any governmental entity from burdening their exercise of religion. The concept of religious freedom is undoubtedly cornerstone to United States’ values, and as such, has a long history of policymaking, including recent litigation surrounding the potential threat that the implementation of laws like Indiana’s Religious Freedom Restoration Act poses on equal protection rights.  In March 2016 attendees of NASPA’s Annual Conference came together in Indianapolis and marched to the state capitol to raise awareness about religious freedom legislation. 

Mapping out the threads of connection between federal and state religious freedom policies and assessing their potential impact on marginalized communities can help inform future practice for student affairs professionals today. 

Evolution of State Religious Freedom Policies  

The First Amendment to the Constitution of the United States upholds the right to practice, or choose to not practice, religion without government intervention. Religious freedom legislation works to protect this right; however, such measures can also risk violation of equal protection under the Fourteenth Amendment, complicating legal precedent.

Congress passed the federal Religious Freedom Restoration Act in 1993.  As originally enacted, the 1993 federal Religious Freedom Restoration Act required enforcement by the states as well as the federal government. This provision was challenged and revised following a 1997 Supreme Court of the United States (SCOTUS) decision, City of Boerne v. Flores. In City of Boerne v. Flores, SCOTUS found that its implementation at the state level conflicted with maintaining a balance of power between federal and state law. While multiple states adopted their own religious freedom policies following City of Boerne v. Flores, Indiana’s policy received heightened pushback and resulting economic losses.

One primary way in which the Indiana policy differs is its extension of religious freedom protections to corporations. The legislation was passed just a year after a 2014 SCOTUS ruling, Burwell v. Hobby Lobby Stores, Inc., found that corporations were to be considered as individual people under the federal Religious Freedom Restoration Act, allowing Hobby Lobby, Inc. to exercise a right to religious exemption as a means to disallow employees from receiving contraceptive coverage and to extend insurance benefits to same-sex partners. Indiana’s Religious Freedom Restoration Act stipulated that the state could only burden the exercise of religion given it had a “compelling state interest”. After the SCOTUS ruling in Burwell v. Hobby Lobby Stores, Inc., equal rights advocates worried that the legislation would result in the unequal treatment of marginalized individuals, specifically those seeking reproductive health services and those identifying as a member of the LGBTQIA community.

State Religious Freedom Policies in 2019

In 2019, states have introduced religious freedom protection bills that continue to concern equal rights advocates, though the specific approaches of the more recent legislation have evolved. In total, NASPA staff have tracked seventeen measures related to religious freedom, visualized in the map below. Sixteen of these measures failed to move forward in their respective 2019 state legislatures while one, a measure to increase the accommodation of religious holidays at post-secondary institutions, was enacted by the Washington state legislature (WA SB5166) in July. 

Aside from the Washington religious freedom legislation, tracked state legislation in 2019 falls into three categories:

1. Religious Freedom & Access to Healthcare: considers the right for mental and physical healthcare providers to deny treatment to patients

At the state level, four of the seventeen bills aimed at allowing healthcare providers and professionals to refuse treatment on the grounds of religious liberty. Two of these measures, Texas Senate Bill 85 and Texas House Bill 4357 were specifically concerning mental health services, which is important to note given an ever-growing emphasis on mental health in higher education. Instituting a policy that would allow for mental health professionals to deny treatment to certain individuals based on religious freedom runs counter to the “no wrong door” adage, which centers on the value of using an integrative approach to expand equitable access to mental health services. NASPA Associate Director for Research and Policy, Alexa Wesley, recommends using the “no wrong door” adage as a guiding principle for practice in her May 2019 publication, Strategies for Addressing Mental Health Support on Campus.  

There has been federal policy movement on this category as well, which can sometimes create a corresponding trend in the introduction of state policy. In May 2019, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) released a final rule to protect healthcare workers who chose to deny healthcare services to their patients based on religious beliefs. HHS released a notice in July that the effective date of the rule would be delayed until November 22, 2019, due to multiple lawsuits that have been filed against its implementation. In June 2019, HHS OCR released a Notice of Proposed Rulemaking (NPRM) to formally revise, the first anti-discrimination federal civil rights law based on sex to include blanket religious freedom exemptions for health care providers.

2. Religious Freedom & Access to Goods and Services: considers the right for private businesses, including corporations, to deny benefits to employees and services to customers.

Despite Indiana becoming a case example of the negative consequences a state may face from enacting such a broad religious freedom bill into law, Georgia (GA SB 221), Texas (TX HB 4497), and Iowa (IA SF 508), all attempted, with no avail, to pass similar state RFRAs in 2019. This legislation has been shown to negatively impact LGBTQIA individuals in a way that would likely extend to communities in higher education. A 2018 report from Human Rights Watch documents the harm of state religious freedom policies using qualitative data gathered from 112 in-depth interviews with LGBTQIA individuals and their advocates. The report details harm both from direct incidents of businesses refusing to provide services to customers, and the indirect result of discouraging the LGBTQIA community from accessing services based on fear of discrimination. 

The Human Rights Watch report recommends that Congress reduce the harm experienced by marginalized individuals affected by religious freedom policies by passing legislation such as the Equality Act, or the Do No Harm Act, which would work to prevent religious freedom legislation from resulting in a discriminatory practice. The report also recommends that state human rights commissions examine religious freedom protections to ensure that they are not being misused and to affirm that any kind of discrimination based on sex or gender identity is unacceptable. Institutions of higher education may be advised to do the same.

3. Religious Freedom & Access to Adoption Services: considers the right for child welfare, foster, or adoption centers to refuse services to potential guardians

Four policies tracked in Tennessee (TN HB 1152, TN HB 836, TN SB 1304) and Arkansas (AK SB 352) relate to child welfare, foster, and adoption agencies. These policies follow a similar pattern to the reasoning used in category three to deny goods and services on the grounds of religious exemption. While the other categories in this post more directly impact the work of student affairs professionals, this category may also pose implications for the higher education community. To learn more about the issue, please check out The Center for American Progress April 2019 report on religious freedom.

NASPA continues to affirm, support, and recognize the rights of all LGBTQIA members of the higher education community and promotes inclusive learning environments. If you want tips on how to advocate for federal policies like the Equality Act and the Do No Harm Act, and to review foundational information on policymaking, check out the “Beyond Schoolhouse Rocks!” series on the NASPA blog.