Religious Freedom

Citizens Count Editor

From the dawn of our republic, there have been debates over the role of religion in civil society. Both the New Hampshire and U.S. Constitutions protect the right of every citizen to practice any religion. However, there is often tension between the right of one citizen to practice a religion and the right of another citizen to be free from that religion.

Constitutional protections for religious freedom

The First Amendment of the U.S. Constitution forbids the government from establishing an official state religion. It also protects the right of every citizen to practice — or not practice — any religion.

The New Hampshire Constitution has similar protections. Article Five of the New Hampshire Bill of Rights guarantees the right of every citizen to practice any religion so long as “he doth not disturb the public peace or disturb others in their religious worship.” Article Six goes on to state that no one can be forced to contribute to a religious school.

Religious freedom in education

Prayer in school

One of the most well-known debates over the freedom of religion surrounds prayer in schools. Since the First Amendment prohibits any official state religion, the U.S. Supreme Court has ruled that it is unconstitutional to promote any religious belief or practices in public school. That means there can be no school-led prayer. However, students are free to pray individually so long as they do not disrupt other students. 

The First Amendment also protects the right of parents to pray on school grounds. In 2013 Concord High School affirmed this right after a parent requested to pray on school grounds.

Explore other debates around free speech in New Hampshire 

Religion in curriculum

New Hampshire law requires school districts to adopt a policy that allows a parent to withdraw their child from any curriculum the parent finds objectionable, for any reason, including religious reasons.

Schools can teach about various religions so long as no particular religion is promoted. If a religious holiday is part of non-religious culture — such as Christmas — celebration may be allowed.

The New Hampshire Legislature has also considered — but ultimately rejected — bills that would require curriculum to cover creationism or other religious topics. Each school district in New Hampshire may establish its own curriculum.

Learn more about the debates around curriculum in New Hampshire 

State money for religious schools

In 2012 New Hampshire created the education tax credit program, which gives a businesses a tax credit for donations to a scholarship program. Those scholarships can go to religious schools. Several residents sued the state, arguing that the education tax credit program violates Article Six of the New Hampshire Bill of Rights, which forbids state funding for religious schools. A New Hampshire Supreme Court ruling ultimately upheld the program.

However, there will most likely be a similar lawsuit if New Hampshire ever authorizes “education savings accounts” or any other voucher-like program that allows tax dollars to go to religious schools.

Religious freedom in the economy

State and federal anti-discrimination laws protect citizens from discrimination based on religion. That means someone cannot be denied housing, a job, or services just because of his or her religion.

Learn more about anti-discrimination laws in employment in New Hampshire 

However, in recent years there has been tension between religious freedom and anti-discrimination protections for sexuality and gender identity. 

For example, in other states there have been lawsuits against bakers and florists who refuse to provide services for same-sex marriages on religious grounds. The couples filing the lawsuits argue that no one should be treated differently based on sexuality or gender identity, because those are innate characteristics like race. Advocates on the other side argue that it is unjust to privilege the rights of one group, such as same-sex couples, over the rights of religious individuals, such as those who believe homosexuality goes against the will of God.

Since these lawsuits have not made their way to the U.S. Supreme Court, it’s not yet clear whose rights come out on top. 

Learn more about the debates over gay and transgender rights in New Hampshire 

Religious freedom in health care

Right of conscience laws

Some states have laws that protect health care workers — including pharmacists — who refuse to participate in certain medical procedures or distribute contraception for religious reasons.  These “right of conscience” laws usually allow a health care professional to sue an employer if he or she is discriminated against for refusing to participate in a procedure, such as a sex change operation. New Hampshire has considered but never passed a right of conscience law.

Contraception coverage

The federal Affordable Care Act (also called “Obamacare”) requires health insurance to cover female contraception without a copayment. There is an opt-out for religious nonprofits, and in 2014 the U.S. Supreme Court ruled that some for-profit corporations can also refuse to cover contraception on religious grounds. In 2017 the Trump administration expanded the right of private companies to refuse coverage for religious reasons, although that change in regulation is being challenged in federal courts.

New Hampshire state law requires any health insurance licensed by the state to cover contraception similar to other prescription drugs, which can include a copay. 

Learn more about the debates over contraception laws in New Hampshire 

Other religious freedom issues

Religious monuments

Over the years federal courts have heard many cases about religious monuments on public property, particularly monuments featuring the Ten Commandments. Sometimes the courts have ruled the monuments violate the U.S. Constitution because they imply the government is promoting a particular religion. Other times the courts have ruled that the monuments can stay because they have historical value or a secular context.

There is at least one Ten Commandments monument on public property in New Hampshire, at a traffic island in Somersworth. No one has sued the city over the monument, although after vigorous debate the city voted to add a flag pole to the island, allowing local civic groups to fly their banners. In January 2018 a citizen was allowed to fly an atheist flag over the monument.

Religious Freedom Restoration Acts

About half of states have passed so-called Religious Freedom Restoration Acts. These acts require any law burdening a person’s religious practice to have a compelling government interest and be as limited as possible.  In some states, Religious Freedom Restoration Acts protect businesses as well as individuals. These acts are intended to strengthen the right of individuals to sue the government over limiting religious freedom.

New Hampshire has considered but never passed a Religious Freedom Restoration Act.

PROS & CONS

"For" Position

By Citizens Count Editor

“NH laws and policies enforcing the separation of church and state go too far, and the state needs more protection for religious practices.”

  • By adding sexual orientation and gender identity to anti-discrimination laws without any exceptions, New Hampshire has forced some religious business owners to choose between violating their religious beliefs and facing lawsuits. 
  • New Hampshire needs a “right of conscience” law so that health care workers do not have to choose between their faith and a job.
  • While the federal government is working to increase insurance exemptions for companies that object to contraception on religious grounds, New Hampshire law does not have any such accommodations.  Any insurance licensed in New Hampshire that covers prescriptions must cover contraception.  This is an unjust violation of religious freedom.

"Against" Position

By Citizens Count Editor

“NH should keep laws and policies enforcing the separation of church and state as-is.”

  • New Hampshire already has significant protections for the practice of religion.  For example, a parent can object to any course material in public school and pull his or her child out of class while that material is covered.  Religious organizations are also exempt from many other laws and taxes.
  • So-called “right of conscience” laws burden health care employers and open them to unnecessary lawsuits.  For example, would a right of conscience law force an OB/GYN office in New Hampshire to hire an employee who refuses to prescribe contraception, even though that is an essential OB/GYN service?
  • Religious Freedom Restoration Acts give some residents the right to discriminate against others, unjustly placing religious beliefs above other essential identities, such as sexual orientation.

LEGISLATIVE HISTORY

Killed in the House

Prohibits discrimination against health care providers who conscientiously object to participating in abortions, sterilizations, or artificial contraception.

Signed by Governor

Deletes some obsolete statutes regarding religious societies and churches. In particular, this bill repeals the authority of religious societies to assess taxes and the limits on the amount of donations that can be made to such societies.

Passed House

Resolution that condemns "hate crime and any other form of conduct that constitutes racism, religious or ethnic bias, discrimination based on disability, age, marriage, familial status, sexuality or gender discrimination, incitement to violence, or animus contrary to law in the state of New Hampshire."

Passed House

Resolution affirming that the House and Senate "reject hate, bigotry, and violence in all their forms."

Killed in the House

Encourages the governor and Executive Council to open meetings with a prayer.

Killed in the House

Prohibits discrimination against health care providers who conscientiously object to participating in any health care service, such as abortion, artifical insemination, etc.

Killed in the House

Deletes both the authority of religious societies to assess taxes and the limits on the amount of donations that can be made to such societies.

Killed in the House

Establishes various religious rights for students and school employees.  This bill also requires school boards to adopt a policy regarding student expression of religion.

Killed in the House

Deletes both the authority of religious societies to assess taxes and the limits on the amount of donations that can be made to such societies.

Tabled in the House

Prohibits discrimination against health care providers who conscientiously object to participating in abortions, sterilizations, or other medical services.

Killed in the House

A version of a Religious Freedom Restoration Act, stating "No government entity shall substantially burden a person’s free exercise of religion."

Killed in the House

Establishes a religious exemption for individuals who do not wish to provide accommodations, goods, or services for same-sex marriages.

Killed in the House

Requires the state board of education to establish an elective bible literacy course for high schoolers.

Killed in the House

Requires public schools to teach evolution "as a theory, including the theorists’ political and ideological viewpoints and their position on the concept of atheism."

Interim Study

Deletes some old laws regarding religious societies and churches. For example, this bill repeals the limits on the amount of donations that can be made to such societies.  The House amended the bill to also allow any employer to refuse to provide insurance coverage for contraception for religious reasons.

Vetoed by Governor

If a U.S. Constitutional Convention is called, this bill limits the amendments delegates from New Hampshire may propose to amendments authorized by a resolution the state legislature. The House amended the bill to also delete some obsolete statutes regarding religious societies and churches, such as the authority of religious societies to assess taxes.  The House amendment also also allows any employer to refuse to provide insurance coverage for contraception for religious reasons.

Do NH laws and policies enforcing the separation of church and state go too far?

Comments

Larry Twitchell
- Candia

Mon, 06/04/2018 - 7:38pm

The only wall NH (or the US, for that matter) need is a high, strong one between state and church. Until churches pay taxes, they should have no say in our laws or public policies.

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Issue Status

The U.S. Supreme Court issued a ruling in a controversial case of a Colorado baker who refused to bake a cake for a gay wedding, citing that it would violate his religious beliefs. The court found in favor of the baker, but in a strictly narrow ruling that does not set a precedent for similar cases. This leaves the floor open for to similar legal challenges. 

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