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.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n