Citizenship and Solicitude: How to Overrule Employment Division v. Smith and Washington v. Davis

Abstract

This article looks to the original meaning of the Fourteenth Amendment's provisions on equal citizenship to defend an approach to the free exercise of religion distinct both from Employment Division v. Smith and the Sherbert-Yoder regime it replaced. Members of all religious groups are equally citizens: in the first Justice Harlan's words in The Civil Rights Cases, a "component part of the people for whose welfare and happiness government is ordained." Such citizens are entitled to equal solicitude from their state regarding even indirect costs of that state's laws. Just as trustees must affirmatively promote the interests of their beneficiaries, not merely avoid purposely harming them, states must affirmatively promote the interests of their citizens, not merely avoid targeting them for ill treatment. This obligation applies to all citizens no maKer their religion or race. Contrary to Smith, therefore, the Fourteenth Amendment requires more than a no-religious-targeting rule. And contrary to Washington v. Davis, it requires more than a no-racial-targeting rule. The Court was right in both Smith and Washington, however, that strict scrutiny for any law significantly affecting racial or religious groups would threaten chaos. A refusal to countenance any impact on religious practices, no maKer how socially harmful, would allow religious citizens to be laws unto themselves. A refusal to countenance any disparate impact on racial groups would require racially discriminatory quotas that would themselves undermine equal citizenship. The Fourteenth Amendment requires a more nuanced assessment of the arbitrariness of the distinctions

Keywords: Fourteenth Amendment, Disparate Impact, Free Exercise, Equal Citizenship, Washington v. Davis, Employment Division v. Smith