Americans often look to the national government to protect individual rights, but since the Supreme Court’s 1990 decision in Employment Division v. Smith it has often been up to the states to protect what many founders called “the sacred right of conscience.” Some states do a far better job than others. For instance, a person living in Maryland enjoys significantly more religious liberty protections than a person living in Virginia.
Religious Liberty in the States (RLS) is an annual research project that ranks states on their religious liberty policies. According to its 2023 ranking (released July 13), Maryland scored ninth with 57% of the religious liberty protections in place that were studied by the project. While Maryland lags behind the highest-ranked state of Illinois (85%), it’s still far ahead of Virginia. The Old Dominion ranked 35th out of 50, with a score of only 37%.
Virginia’s religious liberty falls short due to the absence of key safeguards. When it comes to the five measures used in evaluating a state’s protections in marriage-related issues, Virginia scores none while Maryland secures three. Both states can draw inspiration from Mississippi’s Protecting Freedom of Conscience from Government Discrimination Act. This crucial legislation safeguards the rights of various individuals and entities, including clergy, religious organizations, public officials and for-profit businesses. It allows them to respectfully decline participation in wedding services or celebrations that conflict with their deeply held religious beliefs or moral convictions. Since Mississippi extends these protections to private businesses, it scores all five measures connected to marriage-related issues.
In protections connected to health care, Maryland scored 10 out of 20, while Virginia received a score of five. A recent example of successful protections in this field is the Medical Ethics and Diversity Act of South Carolina, which went into effect in June 2022. This legislation explicitly grants medical professionals, health care institutions and payers the right to abstain from any health care service that contradicts their conscience. A crucial aspect of this law is the inclusion of robust safeguards that protect the conscience of providers, irrespective of their religious beliefs or lack thereof. According to this year’s RLS, South Carolina’s statutes earn a score of 19 out of 20 in this category.
Comparing the purple state of Virginia to the red states of Mississippi and South Carolina might suggest that protecting religious liberty is a conservative issue, but the highest-ranked state in the nation is blue Illinois, and our neighbor to the north is solidly blue as well. Protecting religious liberty is not a red-blue issue; it is a matter of protecting what many founders called “the sacred right of conscience.”
Thomas Jefferson, always an advocate of religious liberty as the foundation of freedom, penned the Virginia Statute for Religious Freedom in 1779. The bill, which became law in 1786, establishes religious liberty as a natural right conferred by God prior to governments. The legislation safeguarded what was already a natural right.
James Madison, who ushered the bill through the Virginia legislature while Jefferson was in France, said that the Virginia statute “is a true standard of religious liberty: its principle the great barrier against usurpations on the rights of conscience. As long as it is respected [and] no longer, these will be safe.”
Between the two neighbors, Maryland currently holds the title of being “more free.” However, this is primarily because Virginia, despite having a rich history of establishing and setting the foundation for religious liberty throughout the United States, has fallen short of its shining ideal. To close this gap, Virginia should strive to improve its score by implementing further safeguards and proactive measures to ensure strong religious liberty protections for all its residents. By doing so, Virginia can reclaim its historical legacy and once again become a shining example of freedom and inclusivity in the United States.
Mark David Hall is a professor in Regent University’s Robertson School of Government in Virginia Beach and a senior research fellow of the Center for Religion, Culture, & Democracy.
