Utah enacts forward-thinking religious protections in 2021 session

Written by William C. Duncan

March 10, 2021

This session, the Utah Legislature enacted two pieces of legislation with important implications for religious freedom. In one case, approval was unanimous, and in the other, nearly so.

The bills had the common feature of not only addressing religious freedom but of doing so in a forward-thinking way.

SB 195, Emergency Response Amendments

Rather than waiting for conflicts to arise between religious freedom and government emergency authority, the Legislature wisely set out a series of rules that would govern treatment of religious practice and worship services in future emergency situations.

SB 195 was a broad bill that outlined the power of state and local governments in responding to emergencies like the COVID-19 pandemic. Drawing on lessons learned over the past year, the bill clarifies how emergency authority can be exercised in a variety of contexts.

One of the important contexts related to religious worship services and other religious exercise. This topic has been of significant concern in other states. In fact, the U.S. Supreme Court has now issued multiple rulings clarifying the power of state and local governments to limit worship services when governments are trying to prevent the spread of communicable illness.

The approach adopted by Utah in SB 195 is very consistent with the Supreme Court’s rulings. The religious requirement in SB 195 provides:

During a public health emergency [state and local agencies] shall not issue a public health order or impose or implement a regulation that substantially burdens an individual’s exercise of religion unless the department or local health department demonstrates that the application of the burden to the individual: (i) is in furtherance of a compelling government interest; and (ii) is the least restrictive means of furthering that compelling government interest.

The law also requires these agencies to “allow reasonable accommodations for an individual to perform or participate in a religious practice or rite.”

Thus, in the event of a future public health crisis at the state or local level, officials exercising emergency powers have an important guide to what they can and cannot do in regard to religious gatherings. It is important to note that the legislation does not hamper appropriate public health measures but merely ensures that they be implemented in a way that does not unfairly limit religious exercise while allowing other activities that pose a similar risk. The Supreme Court repeatedly struck down as unconstitutional regulations that did just that.

SB 244, Student Religious Accommodations Amendments

The other forward-looking bill was SB 244. This law directs the State Board of Higher Education to create rules that would ensure students at public universities are offered appropriate accommodations when school assignments conflict with religious observances. Illinois has had a statute with this requirement since 2013. Washington implemented a similar law in 2019.

The basic rule created by the bill is that a university must “reasonably accommodate a student’s absence from an examination or other academic requirement. . . for reasons of: (i) the student’s faith or conscience; or (ii) the student’s participation in an organized activity conducted under the auspices of the student’s religious tradition or religious organization” when necessary to avoid an “undue hardship.” The law also specifies that the accommodation should “not adversely impact the student’s academic opportunities.”

The law directs the board to publicize this requirement so that students can let teachers know about potential needs for accommodation.

This protection is particularly important for members of minority religious groups whose needs for accommodation might not be as well-known as those of other faiths who are well-represented in a community.

In both of these bills, Utah’s approach can provide a model for other states. By choosing to plan ahead to resolve potential conflicts rather than waiting for the conflicts (and litigation) over current rules, the state has not only prevented conflict – but signaled that minority religious groups and others are welcome, and that accommodating their religious practice is not considered a burden on the state to be granted grudgingly only when insisted upon, but an important part of personal identity that is valued in the state.

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