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Free Exercise Partisanship

The pandemic has called into question many long-held assumptions about the relationship between politics, the judiciary, and the world at large. This article argues one such sacred cow must be revisited: that in free exercise cases, there is no discernible correlation between judicial decision making and politics. In contrast to previous studies, this article presents new data that suggests judicial decision-making in this space tracks political affiliation to a significant degree. 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. 
 
Though the 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 shows how free exercise has recently become controversial and argues that the increase in partisanship is a result of the most significant aspect of free exercise—the meaning of “religious discrimination” under the Free Exercise Clause—being mired in confusion. It concludes that if left in its current state of ambiguity, free exercise jurisprudence will continue to enable judicial partisanship in an area that threatens far-reaching consequences for other rights, including the future of LGBTQ and reproductive rights.