CITIZENSHIP AND SOLICITUDE: HOW TO OVERRULE EMPLOYMENT DIVISION V. SMITH AND WASHINGTON V. DAVIS.

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 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. Such a focus would mirror the manner in which the Court assesses "arbitrary and capricious" agency action in cases like Citizens to Preserve Overton Park v. Volpe and Motor Vehicle Manufacturers' Association v. State Farm Mutual Automobile Insurance Co. 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, including economic interests. The Fourteenth Amendment requires states to offer an adequate explanation of why other citizens' interests maKer more than the interests of those suffering the burden, and it requires states to present their actual reasons for decisions, rather than hiding behind post-hoc judicial rationalizations as approved in Williamson v. Lee Optical. Such a requirement for reasoned aKention to different interests fits how the law of trusts has long required trustees to explain themselves when they deal with multiple beneficiaries. Trustees need not always treat all of their beneficiaries precisely the same, but they must give "impartial aKention" to all beneficiaries' welfare, which in turn requires an adequate explanation of both differential treatment among, and differential impacts on, a trustee's beneficiaries. [ABSTRACT FROM AUTHOR]