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What are State Constitutions and Why do They Matter for Religious Nonprofits?
When Americans think of “constitutional law,” they tend to think of the United States Constitution, enshrined under glass at the National Archives. But this document—and the United States Supreme Court decisions interpreting it—represents only a fraction of the overall picture of American constitutional law. Under the American system of federalism, people live under two constitutions, state and federal. And while the federal Constitution frequently steals the limelight, citizens and nonprofit leaders ignore the “other” 50 American constitutions at their own peril. State constitutions can be a sword wielded against religious nonprofits, or a shield to guard against overreaching government. Understanding how can be a key to preserving corporate and nonprofit status and protecting religious liberty and conscience.
How are State Constitutions Different from the US Constitution?
Federalism provides a “double security” for citizens by ensuring their rights are protected by two different constitutions, state and federal.1 Both constitutions represent “higher law” removed from and above the ordinary political process, and both constitutions define, establish, and limit their respective governments. But while both constitutions frame a government and protect rights, they are otherwise very different. This makes sense: the state and federal constitutions were written at different times, by different people, and for different purposes. There are three key differences between the state and federal constitutions which illustrate how state constitutions can help or hinder religious nonprofits: scope of authority, ease of amendability, and level of detail.
Scope: The federal constitution enumerates the powers of the federal government, while the state constitutions constrain the powers of the states.2 In other words, Congress can’t pass a law unless authorized by the United States Constitution, while a state legislature can pass any law unless it is prohibited by the state constitution. Unlike the federal government, the states wield “police powers,” which enable them to enact far-reaching legislation governing public safety, public health, and public morality.3 So state constitutions are critical to defining the lengths to which the states may go in wielding their police powers.
Amendability: The federal constitution is fairly brief. It has never been replaced and has only been amended 27 times in over 200 years. On the other hand, the 50 states have collectively drafted 144 constitutions and amended these over 7,500 times.4 Article V of the US Constitution dictates that only Congress and the states (or the states alone) may call a constitutional convention and only Congress may propose amendments to the federal constitution. On the other hand, state constitutions can often be amended by popular vote and sometimes citizens can bypass the legislature and propose constitutional amendments themselves by petition. The ease with which state constitutions may be amended means they are more democratically responsive than the federal constitution but also means they can occasionally become political battlegrounds.
Detail: State constitutions are far more detailed than the US Constitution. While the US Constitution was written in general terms enumerating specific powers, state constitutions—particularly their more recent amendments—are often written in minute detail. As a result, state constitutions have the potential to offer more and greater protections to religious organizations than the US Constitution, but also to contain more potential pitfalls.
One final note: ideally, the state and federal constitutions are supposed to work in tandem. The United States Constitution assumes the existence of state constitutions, and in fact requires them if it is to make any sense.5 And state constitutions for their part are subject to the federal: the United States Constitution is “the supreme Law of the Land, . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”6 The general metaphor is that the federal constitution provides a “floor,” or baseline of individual rights protections, while states are free to create a higher “ceiling” of greater protections.7 That leaves a wide berth in which state constitutions may operate without interference from federal authorities—to the benefit or detriment of religious nonprofits.
Why Do State Constitutions Matter to Religious Organizations?
Understandably, the two subjects in state constitutions with the greatest potential to affect religious nonprofits are those dealing with religion and nonprofit status. The federal constitution says nothing about nonprofit status and says very little about religion. Some state constitutions have provisions on nonprofit status and many state constitutions have more to say about religion than the federal constitution. The levels of protection offered to religious nonprofits by state constitutions will vary widely, depending on what a given state’s constitution says and how that state’s courts have chosen to interpret that text. Hence the usefulness of a resource like the Faith and Freedom Index, which can compare the text and interpretations of different states’ constitutions. Below is a brief look at how state constitutions can impact religious nonprofits.
Nonprofit Status: Several states have constitutional provisions either permitting the legislature to pass laws exempting certain types of institutions from taxation or enumerating the types of institutions exempt from taxation. These provisions may differ from the federal statutory criteria in 26 U.S.C. § 501(c)(3). Religious nonprofits need to meet both sets of criteria to be exempt from state and federal taxes. These criteria can have a profound impact on whether a religious nonprofit can achieve or maintain tax-exempt status.
In Louisiana, for example, the state constitution explicitly exempts from taxation “[p]roperty owned by a nonprofit corporation or association organized and operated exclusively for religious . . . purposes.”8 This is a powerful shield to religious nonprofits in Louisiana that is not available in Pennsylvania, where the state constitution provides that “[t]he General Assembly may by law exempt from taxation . . . [i]nstitutions of purely public charity.”9 The Pennsylvania provision leaves ample room for interpretation which may, in a hostile environment, lead to a determination that a religious nonprofit is not an institution of “purely public charity.”
Religious Freedom & Conscience: The US Constitution provides that “Congress shall make no law . . . prohibiting the free exercise [of religion].”10 The United States Supreme Court has interpreted the Free Exercise Clause to preclude religious exemptions from neutral and generally applicable laws.11 But many states have rejected this approach, interpreting their own, often textually distinct, constitutional religious freedom provisions differently. In theory, this should be a positive development for religious nonprofits. After all, state religious liberty provisions tend to be written in more sweeping language, and some even protect standalone “rights of conscience.”12 But as the examples below illustrate, this isn’t always the case.
On the one hand, in 2002, New York’s legislature passed a law requiring employer health insurance contracts that provide coverage for prescription drugs to also include coverage for the cost of contraceptive drugs or devices. Against the objections of faith-based social service organizations opposed to contraception on religious grounds, New York’s high court found that the law did not violate the state constitution’s religious freedom protections—even as it found those protections more substantial than the federal Free Exercise Clause.13 In a similar case in California, the state supreme court declined to apply federal free exercise precedent but likewise concluded that its state constitution did not exempt religious employers from complying with a statute mandating contraceptive coverage.14
On the other hand, the Virginia Supreme Court recently ruled that under its religious freedom provision, a public school could not fire a teacher for refusing to refer to students by their “preferred pronouns.”15 Based on the “clarity and resoluteness” of its constitutional religious freedom provision, the court held that “religious liberties in this Commonwealth do not vanish simply because a purely secular law says so — no matter its impartiality toward specific religions or its impassivity toward religion generally.”16
In a note of caution to any religious organization that finds itself in religious liberty litigation, it is imperative to articulate and brief federal and state constitutional claims separately. The Wisconsin Supreme Court recently held that Catholic Charities was not exempt from unemployment insurance contributions because its social service work was not undertaken “primarily for religious purposes.”17 The court noted that while Catholic Charities had alleged a violation of the state constitution, it “did not develop an argument apart from [its] assertions under the United States Constitution.”18 Because the state constitutional argument was “undeveloped” and the court “generally do[es] not address undeveloped arguments,” it analyzed the claims under federal free exercise jurisprudence.19 This is unfortunate because the Wisconsin Constitution’s religious freedom provision is textually more robust than the federal Free Exercise Clause.20
“Blaine” Amendments: One final type of state constitutional provision bears mentioning. Several states have constitutional provisions banning the use of state funds by religious entities. These are generally (but somewhat misleadingly) referred to as “Blaine Amendments” after a failed proposal to insert a similar provision into the United States Constitution. The context in which these provisions most frequently occur is the use of public funds to attend parochial schools. The United States Supreme Court recently held that state voucher programs for private education could not discriminate against religious schools.21 Under the Supremacy Clause, that meant most state Blaine Amendments in the education context are now a dead letter. But as we have seen in the context of abortion, there is no guarantee this case might not be overturned one day, once more triggering these state constitutional provisions. Additionally, depending on the wording of a state constitution, its provision may extend beyond education, requiring religious nonprofits to be cautious when considering state grants or other funding.
Conclusion
State constitutions have the potential to help or hinder religious organizations as they strive to fulfill their missions. Religious organizations should be wary of state constitutional criteria regarding corporate or nonprofit status so that they understand the rules in their particular states and can more effectively achieve or maintain these statuses in occasionally hostile political environments. Such organizations should also take care to make religious freedom arguments under their states’ constitution in defending against laws that threaten their conscience rights. Otherwise, the “double security” of federalism will dissipate, and rather than a shield for religious organizations, state constitutions may become swords for hostile government actors.
Consult Napa Legal’s Multistate Matrix and Faith & Freedom Index to explore the laws of the different states and see how each state ranks on state constitutional protections and other factors that may affect your organization.
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1 The Federalist No. 51 (James Madison).
2 See Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 9 (2d ed., 1871).
3 Id. at 572–74.
4 See John Dinan, State Constitutional Politics: Governing by Amendment in the American States 23 (2018).
5 Donald S. Lutz, The Origins of American Constitutionalism 96 (1988).
6 U.S. Const. art. V.
7 See, e.g., William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. Rev. 535, 550 (1986).
8 Louisiana Const. Art VII, § 21(B)(1)(a)(i).
9 Pennsylvania Const. art. VIII, § 2(a)(v) (emphasis added).
10 U.S. Const. amend. 1.
11 See Employment Division v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L.Ed. 2d 876 (1990).
12 See, e.g., Ohio Const. art. I, § 7 (“. . . nor shall any interference with the rights of conscience be permitted.”).
13 Cath. Charities of Diocese of Albany v. Serio, 7 N.Y.3d 510, 859 N.E.2d 459 (2006).
14 Cath. Charities of Sacramento, Inc. v. Superior Court, 32 Cal.4th 527, 85 P.3d 67 (2004).
15 Vlaming v. West Point School Bd., 302 Va. 504, 895S.E.2d 705 (2023).
16 Id. at 551.
17 Cath. Charities Bur., Inc. v. Labor & Indus. Rev. Comm., 411 Wis.2d 1, 3 N.W.3d 666 (2024), cert. granted, 93 U.S.L.W.3149 (U.S. Dec. 13, 2024) (No. 24-154).
18 Id. at ¶ 3, n.4.
19 Id.
20 See Wisconsin Const. art. I, § 18.
21 See Espinoza v. Montana Dept. of Revenue, 591 U.S. 464, 140 S. Ct. 2246, 207 L. Ed. 2d 679 (2020).
