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

Christopher R. Green (University of Mississippi School of Law) recently published, Citizenship and Solicitude: How to Overrule Employment Division v. Smith and Washington v. Davis, Harvard Journal of Law and Public Policy, Forthcoming. Provided below is an 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, a “component part of the people for whose welfare and happiness government is ordained.” Such citizens are entitled to equal solicitude from their states regarding even indirect costs of that state’s laws. Like trustees, states must affirmatively promote the interests of their citizens, not merely avoid targeting them for ill treatment. The same goes for burdens on different racial groups. 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 causing significant impacts on racial or religious groups would threaten chaos. A refusal to countenance any impact on religious practices, no matter how harmful, would allow religious citizens to be a law 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 in state law and the costs they impose than a one-size-fits-all “compelling state interest” framework can supply. Instead of focusing solely on explicit or purposeful classifications, the Court should focus directly on the existence of adequate explanations for policies causing particular harms, the way it assesses “arbitrary and capricious” agency action in cases like Citizens to Preserve Overton Park v. Volpe and Motor Vehicle Manufacturers v. State Farm. The trigger for such an inquiry would not be the nature of the classification at issue, but simply the existence of the impact on particular citizens’ interests, economic interests included. The Fourteenth Amendment requires states to offer an adequate explanation why other citizens’ interests matter more than the ones suffering the burden, and would require states to present their actual reasons for decisions, rather than hiding behind post-hoc judicial rationalizations as approved in Williamson v. Lee Optical. Such an approach fits how the law of trusts has long dealt with multiple beneficiaries.