Free Exercise Partisanship

Abstract

This Article presents new data that shows that, in contrast to earlier periods, judicial decision-making in free exercise cases now tracks political affiliation to a significant degree. The trend toward increased free exercise partisanship is starkly manifested by free exercise cases related to the pandemic: a survey of every federal court decision pertaining to challenges to prohibitions of religious gatherings during the pandemic reveals that 0% of Democrat-appointed judges have sided with religious plaintiffs, the majority (66%) of Republican-appointed judges have sided with religious plaintiffs, and 82% of Trump-appointed judges have sided with religious plaintiffs. But while religious challenges to COVID-19 lockdown orders have thrown free exercise partisanship into sharp relief, the trend of increased partisanship in free exercise jurisprudence actually pre-dates the onset of the pandemic.

This Article makes several contributions. One is empirical: it offers an original dataset that tracks every free exercise case from the last five years (picking up where previous surveys of free exercise cases left off). One is historical: it tells the story of how free exercise became politically controversial. Another is doctrinal: it reveals the deep ambiguity at the heart of free exercise doctrine, which this Article argues has enabled the rise in free exercise partisanship. Finally, one is jurisprudential: it shows the relationship between doctrinal clarity and partisanship, which has implications for constitutional law writ large.

Keywords: Free Exercise, First Amendment, Law and Religion, COVID-19, Pandemic, Religious Discrimination, Judicial Minimalism, Partisanship, Polarization