Free Exercise Partisanship

Abstract

This Article presents new data demonstrating that, in contrast to earlier periods, recent judicial decision-making in free exercise cases tracks political affiliation to a significant degree. The trend toward increased free exercise partisanship is starkly manifested by free exercise cases borne out of the COVID-19 pandemic: a survey of federal court decisions pertaining to free exercise challenges to prohibitions of religious gatherings during the pandemic reveals that 0% of Democratic-appointed judges sided with religious plaintiffs, the majority (66%) of Republican-appointed judges sided with religious plaintiffs, and 82% of Trump-appointed judges 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 predates 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 2016 (the endpoint of previous surveys of free exercise cases) until 2021. Another is historical: it tells the story of how free exercise became politically controversial. A third 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. A final 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