Approaching Equilibrium in Free Exercise of Religion Cases? Empirical Evidence From the Federal Courts

Drawing on our continuing empirical study of decisions on the free exercise of religion, we suggest that the federal courts were approaching equilibrium in outcomes from 2006 to 2015. In a departure from our prior studies examining the preceding twenty years, we now observe that claimants from the majority of religions did not experience either success or failure at significantly different rates.

The principle of expansive and inclusive religious freedom in the United States has been blemished by a persistent history of inequality and intolerance. In prior studies, we found that Catholics, Baptists, and Muslims suffered marked disadvantages when they sought accommodation for religious practices. From 2006 to 2015, by contrast, variation in claimant outcomes from Catholic, Baptist, Islamic, and most (but not all) other traditions did not achieve significance.

Consistent with a possible trend toward equilibrium, our Case-Type variables are remarkably robust and significant. In an ideal religious liberty doctrinal regime, the balance between accommodating religious exercise and upholding important government purposes will shift with the character of the dispute defined by these conflicting interests. Our encouraging results indicate that the driving force in religious liberty decisions increasingly lies in the case’s contextual background rather than the claimant’s religious identity.