Judicial Decision‐Making in Free Exercise Cases: The Effect of Legal Standards, Judge Party, and Shared Religion

Free Exercise of Religion claims occupy an especially interesting place for those who study judicial decision‐making, in that one regularly sees the same or very similar claims judged by significantly different legal standards. An individual who claims their free exercise rights are being violated may claim the protection of the Free Exercise clause, but the Supreme Court's interpretation thereof now provides that a neutral, generally applicable law which burdens free exercise rights does not run afoul of the clause. Many claimants resort to the Religious Freedom Restoration Act or, in the case of prisoners, the Religious Land Use and Institutionalized Persons Act. These laws impose a “strict scrutiny” standard which should make claimants more likely to prevail. This paper seeks to answer a number of research questions about religious freedom claims, while making direct comparisons between how cases are decided using the Free Exercise Clause and RFRA/RLUIPA. I use a dataset of all judicial votes in federal circuit and district court religious freedom claims from 2006 to 2015. I first find that, everything else being equal, judges are more likely to vote in favor of claimants asserting a RFRA or RLUIPA claim than a Free Exercise clause claim. Then, I examine the role of judge party in decision‐making. I would expect Republican judges to favor Evangelical Christian and Catholic groups, and Democratic liberal judges to favor minority religions. I also expect judge party to make more of a difference in RFRA/RLUIPA claims, where the strict scrutiny standard allows judges more room to favor claimants. However, I find that judge party has no statistically significant effect on either type of claim. Finally, I confirm previous findings that judges are more likely to vote in favor of claimants from the same religious background, but that this is primarily true for Catholic and some Jewish claimants.