Introduction
The PRAISE Act has been drafted as model legislation to ensure that future states of emergency, including future pandemics or health emergencies, cannot be exploited or abused to take away a citizen’s fundamental right to religious freedom. Although 22 states have already adopted legislation protecting religious assembly in times of emergency, 28 states are in dire need of additional protections. Please find below Frequently Asked Questions and specific legislative text that can be modified or adjusted to be adopted by various state legislatures. Upon request, the ACLJ stands ready to provide technical drafting assistance to legislators.
Click HERE to see if your state needs additional protections and to send your legislators a letter asking them to pass the PRAISE Act.
Frequently Asked Questions
What does this legislation seek to remedy?
The COVID-19 pandemic exposed a vulnerability that religious institutions and houses of worship face, namely, uncertain legal protection during states of emergency. Government officials and bodies often imposed draconian restrictions on churches and other houses of worship or religious bodies, deeming them “nonessential” businesses that did not need to remain open, or at least not without heavy restrictions. Meanwhile, other commercial and/or noncommercial entities were left much freer in their operations. In short, religious institutions faced stark discrimination as compared to other institutions.
Does the U.S. Constitution permit laws specifically protecting religion?
Clearly, the federal Constitution permits both the state and federal governments to show special solicitude to religion. Indeed, the Constitution itself, in its First Amendment, specifically extends protection to the “free exercise” of “religion.” U.S. Const. amend. I. And Congress is free to go beyond the constitutional minimum in protecting religious exercise – as it has done in the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). See Cutter v. Wilkinson, 544 U.S. 709 (2005) (unanimously upholding the constitutionality of RLUIPA). As the Court explained in Cutter, “[r]eligious accommodations . . . need not come packaged with benefits to secular entities.” Id. at 724 (internal quotation marks and citation omitted).
Pertinent to the PRAISE Act, the Court expressly noted as follows: “The ‘exercise of religion’ often involves not only belief and profession but the performance of . . . physical acts such as assembling with others for a worship service or participating in sacramental use of bread and wine.” Id. at 720 (editing marks and citation omitted).
As Cutter noted, this same constitutional rule applies as well to state efforts to protect religion. Id. at 724 (pointing to the state’s “accommodations” of religion). See also Walz v. Tax Commission, 397 U.S. 664 (1970) (rejecting the challenge to express tax exemption for “religious organizations for religious properties used solely for religious worship”).
Like RLUIPA, the PRAISE Act extends protection broadly to religious exercise. “It confers no privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment.” Id. at 724. The PRAISE Act, therefore, represents constitutionally permissible accommodation of religion.
Are states obligated to extend specific protection to religion?
Indeed, the federal constitutional protection for the free exercise of religion sometimes requires protection for religion. E.g., Thomas v. Review Board, 450 U.S. 707 (1981) (violated Free Exercise Clause to deny unemployment benefits to a worker who quit because of a conflict with his religious beliefs); Wisconsin v. Yoder, 406 U.S. 205 (1972) (violated Free Exercise Clause to deny religious exemption from compulsory public education).
In the COVID closure context, the Supreme Court clarified that religions enjoy, in essence, a “most favored nation” status. That is, governments run afoul of the Free Exercise Clause whenever they treat any comparable secular activity more favorably than religious exercise.” Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam) (emphasis in original; citation omitted). Accord Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam). This, as the Tandon Court explained, “[i]t is no answer that a State treats some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue.” 141 S. Ct. at 1296 (citation omitted).
Thus, states that take proactive steps to protect religion against government interference both accommodate religious practice and minimize their own risk of facing litigation over church closures or draconian restrictions.
What should the legislation look like?
At least nine states have passed laws protecting houses of worship during a state of emergency. The laws adopted in Oklahoma and Tennessee, in particular, serve as notable models for legislation in other states.
In Oklahoma, the ACLJ worked with the legislature to pass a law in April 2021 designating as essential religious institutions and activities related to carrying out the mission of religious institutions. The statute also prohibits any governmental entity from subjecting religious institutions to greater restrictions than those placed upon other private entities operating under similar conditions. Oklahoma’s law is the basis for the PRAISE Act and is a strong model for future legislation because it provides some latitude for officials to address emergent threats while ensuring that religious institutions will not be relegated to second-tier status, i.e., treated worse than some secular businesses, in a future state of emergency.
In Tennessee, the legislature passed a law in April 2022 prohibiting state or county officials from closing religious services during a declared emergency. Tennessee’s law provides the strictest application of religious freedom, with no avenues for government officials to restrict worship during a state of emergency. As the Supreme Court stated in Roman Catholic Diocese of Brooklyn, “even in a pandemic, the Constitution cannot be put away and forgotten.” 141 S. Ct. at 68.
Importantly, under both models, churches remain free to make their own decisions about whether or how to continue operating in light of emergent conditions and government advisories. No church is required to stay open if it decides that the risks require either a pause, or the setting of limits upon, gathering or worship.
PRAISE Act Text
Freestanding Bill
The below language is recommended for states that have not enacted the Religious Freedom Restoration Act (RFRA):
The Protecting Religious Assembly in States of Emergency (PRAISE) Act
AN ACT prohibiting any governmental entity from discriminating against and closing a place of worship during an emergency.
(a) Protection for places of worship Any order, rule, regulation, or other directive, issued by any governmental entity pursuant to an emergency or health or safety determination, that requires closure or limitation of any business or other facility otherwise open to public use or patronage, but which exempts in whole or in part any particular entity or set of entities, shall exempt to the same extent any place of worship entitled to the religious exemption found in Section 501(c)(3) of Title 26 of the United States Code, to the same extent as the exempt entity. This section shall be construed to afford to religious institutions and places of worship the same degree of freedom to meet as is afforded to the most favored entity or set of entities.
(b) Enforcement Any person or entity burdened or impaired by a violation of the preceding section may bring a civil action for relief against such burden or impairment in any court of general jurisdiction. Relief may include injunctive orders, compensatory damages, nominal damages, a declaration of a violation, and, where malice or recklessness is demonstrated, punitive damages.
Amendment to Existing RFRA
For states that have adopted RFRA, the following amendment text is recommended:
The Protecting Religious Assembly in States of Emergency (PRAISE) Act
AN ACT amending the Religious Freedom Act, by prohibiting any governmental entity from discriminating against and closing a place of worship during an emergency.
The Religious Freedom Restoration Act [INSERT LAW OR STATE CODE] is amended by relabeling subsection [INSERT] as [INSERT], respectively, and adding subsection [INSERT] as follows:
“[INSERT] Any order, rule, regulation, or other directive, issued by any governmental entity pursuant to an emergency or health or safety determination, that requires closure or limitation of any place of worship entitled to the religious exemption found in Section 501(c)(3) of Title 26 of the United States Code shall be considered a substantial burden even if the order or rule is one of general applicability.”
Appendix A
The 28 below states lack specific protections for houses of worship during states of emergency enshrined in state law.
If you are a resident of one of these states, click HERE to send your legislators a letter asking them to pass the PRAISE Act. You are only eligible to participate in the campaign if you are from one of the below 28 states:
- Alaska
- California
- Colorado
- Connecticut
- Delaware
- Georgia
- Hawaii
- Illinois
- Iowa
- Maine
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Mississippi
- Missouri
- Nebraska
- New Jersey
- New Mexico
- New York
- North Carolina
- Oregon
- Pennsylvania
- Rhode Island
- Vermont
- Washington
- Wisconsin
- Wyoming
If you are a resident of one of the above states, click HERE to send your legislators a letter asking them to pass the PRAISE Act. You are only eligible to participate in the campaign if you are from one of the above 28 states.
Appendix B
Currently, there are 25 states that have enacted versions of the Religious Freedom Restoration Act (RFRA). Although the RFRA in Oklahoma, South Dakota, and Texas already include specific language allowing houses of worship to remain open during states of emergency, and Alabama’s RFRA was passed via constitutional amendment, there are 22 states whose RFRA could be amended through legislation to specifically include the above language.
- Arizona
- Arkansas
- Connecticut*
- Florida
- Idaho
- Illinois*
- Indiana
- Kansas
- Kentucky
- Louisiana
- Mississippi*
- Missouri*
- Montana
- New Mexico*
- North Dakota
- Pennsylvania*
- Rhode Island*
- South Carolina
- Tennessee
- Virginia
- West Virginia
*States with no other laws explicitly protecting houses of worship during states of emergency
Appendix C
Currently, 22 states have passed some form of legislation that protects houses of worship from closure during states of emergency.
- Alabama
- Arizona
- Arkansas
- Florida
- Idaho
- Indiana
- Kansas
- Kentucky
- Louisiana
- Montana
- Nevada
- New Hampshire
- North Dakota
- Ohio
- Oklahoma
- South Carolina
- South Dakota
- Tennessee
- Texas
- Utah
- Virginia
- West Virginia
