April 21, 2026
State-level protection for religious exercise in 2026 is both stronger and less uniform than many summary accounts suggest. Roughly thirty states are commonly identified as having enacted statutory Religious Freedom Restoration Acts (“RFRAs”), while a smaller additional set is often described as providing RFRA-like protection through state constitutional doctrine. The trend is real. The exact count is less tidy. Even Becket’s current public materials do not present perfectly identical topline numbers across all pages, which is why the safest formulation is not that a single settled “39-state consensus” exists, but that a strong majority of states now provide either statutory RFRA protection or are often classified as offering RFRA-like constitutional protection, depending on source and methodology.¹
I. The Post-Smith, Post-Boerne Framework
The modern state-RFRA landscape is a direct consequence of two Supreme Court decisions. In Employment Division v. Smith, the Court held that neutral, generally applicable laws ordinarily do not trigger strict scrutiny merely because they burden religious practice.² Congress responded with the Religious Freedom Restoration Act of 1993, restoring the compelling-interest / least-restrictive-means test as a matter of federal statute.³ But in City of Boerne v. Flores, the Court held that Congress lacked authority to impose that regime on the states through Section 5 of the Fourteenth Amendment.⁴
That left the states with a choice. If heightened protection for religious exercise was to exist against state and local government, the states themselves would have to enact it or preserve it through state constitutional doctrine. Many did.
II. Statutory RFRA Is Now a Major State-Law Phenomenon
However one resolves the final tally between twenty-nine and thirty statutory RFRA states, the central point is no longer seriously disputable: state RFRAs are now a major feature of American law. Recent enactments confirm that this is not merely a legacy phenomenon from the 1990s. Georgia enacted the Georgia Religious Freedom Restoration Act in 2025; Wyoming enacted the Wyoming Religious Freedom Restoration Act in 2025; Iowa and Utah enacted new RFRA protections in 2024.⁵
That matters for two reasons. First, it shows that state legislatures remain willing to codify heightened protection for religious exercise rather than leaving the field entirely to the federal constitutional floor. Second, it confirms that RFRA remains a live legislative issue rather than a historical artifact.
III. Constitutional Analogues Exist, but They Are Harder to Classify
The constitutional-equivalent category is more difficult. A statutory RFRA is easy to identify: the legislature either enacted one or it did not. A constitutional analogue depends on case law, doctrinal breadth, and how aggressively one reads a state court’s decisions. For that reason, it is more precise to say that several states are commonly cited as applying strict scrutiny or a comparable compelling-interest / least-restrictive-means framework under state constitutional law than to claim a universally settled list of fully equivalent nonstatutory RFRA states.¹
Still, the states most often cited in that category include Alaska, Maine, Minnesota, Ohio, Wisconsin, Hawaii, Massachusetts, Washington, and Michigan.
Alaska is commonly anchored to Swanner v. Anchorage Equal Rights Commission, where the Alaska Supreme Court declined to follow Smith and continued its pre-Smith state constitutional analysis.⁶ Maine is often anchored to Fortin v. Roman Catholic Bishop of Portland, where the Maine Supreme Judicial Court stated that Maine would continue applying pre-Smith strict scrutiny under article I, section 3 of the Maine Constitution.⁷ Minnesota is frequently tied to Edina Community Lutheran Church v. State, which applied a heightened four-part framework resembling RFRA analysis.⁸ Ohio is regularly cited through Humphrey v. Lane, where the Ohio Supreme Court applied a compelling-interest / least-restrictive-means standard to a religion-neutral regulation burdening religious exercise.⁹ Wisconsin is often linked to Coulee Catholic Schools v. Labor & Industry Review Commission, where the Wisconsin Supreme Court applied a compelling-interest / least-restrictive-alternative analysis.¹⁰
Additional states are regularly included as well, though with more doctrinal nuance. Hawaii is often described as preserving heightened protection under article I, section 4 of the Hawaii Constitution.¹¹ Massachusetts is likewise often treated as providing stronger state constitutional protection for religious exercise than the minimum federal floor.¹² Washington is commonly cited through article I, section 11 and decisions such as First Covenant Church of Seattle v. City of Seattle.¹³ Michigan is often included through Champion v. Secretary of State, though that case is from the Michigan Court of Appeals rather than the Michigan Supreme Court, which is one reason caution is warranted in describing the constitutional-equivalent category too categorically.¹⁴
IV. Why the Distinction Matters
The difference between statutory and constitutional protection is not cosmetic. A statutory RFRA generally provides a fixed legal rule: when government substantially burdens sincere religious exercise, it must prove a compelling interest and show that it selected the least restrictive means. Constitutional protection can be just as powerful, but it is often less tidy. It depends on judicial interpretation, can be context-specific, and may be less predictable across different fact patterns.
That is why statutory RFRA states are easier to count and easier to summarize. Constitutional-equivalent states are where public trackers are most likely to diverge.
V. The Most Defensible 2026 Conclusion
The strongest defensible 2026 conclusion is narrower than the rhetoric often used in public debate, but still significant. The United States does not have a uniform state-level regime of religious-liberty protection. Nor is there a perfectly clean, uncontested “39-state consensus.” What can be said with confidence is that roughly thirty states now have statutory RFRAs, several additional states are often treated as RFRA-like through constitutional doctrine, and the post-Boerne movement toward stronger state protection for religious exercise remains active rather than exhausted.¹
The map is real. The growth is real. But the constitutional-equivalent category remains more contestable than slogan-driven summaries admit.
Footnotes
¹ Becket, RFRA Info Central: Numbers, https://becketfund.org/research-central/rfra-info-central/numbers/; Becket, Federal & State RFRA Map, https://becketfund.org/research-central/rfra-info-central/map/; Becket, RFRA Info Central, https://becketfund.org/research-central/rfra-info-central/.
² Employment Division v. Smith, 494 U.S. 872 (1990), https://supreme.justia.com/cases/federal/us/494/872/.
³ Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb to 2000bb-4.
⁴ City of Boerne v. Flores, 521 U.S. 507 (1997), https://supreme.justia.com/cases/federal/us/521/507/.
⁵ Georgia General Assembly, S.B. 36 (2025–2026 Reg. Sess.), https://www.legis.ga.gov/api/legislation/document/20252026/230407; Wyoming Legislature, H.B. 0207 (2025), https://www.wyoleg.gov/Legislation/2025/HB0207; Iowa Legislature, H.F. 2416 (2024), https://www.legis.iowa.gov/legislation/BillBook?ga=90&ba=HF2416; Utah Legislature, H.B. 104 (2024), https://le.utah.gov/~2024/bills/static/HB0104.html.
⁶ Swanner v. Anchorage Equal Rights Commission, 874 P.2d 274 (Alaska 1994).
⁷ Fortin v. Roman Catholic Bishop of Portland, 2005 ME 57, 871 A.2d 1208.
⁸ Edina Community Lutheran Church v. State, 745 N.W.2d 194 (Minn. 2008).
⁹ Humphrey v. Lane, 89 Ohio St. 3d 62, 728 N.E.2d 1039 (2000).
¹⁰ Coulee Catholic Schools v. Labor & Industry Review Commission, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868.
¹¹ See Haw. Const. art. I, § 4.
¹² See Mass. Const. pt. 1, art. II.
¹³ Wash. Const. art. I, § 11; First Covenant Church of Seattle v. City of Seattle, 120 Wash. 2d 203, 840 P.2d 174 (1992).
¹⁴ Champion v. Secretary of State, 281 Mich. App. 307, 761 N.W.2d 747 (2008).
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