Kurt Lash (University of Richmond School of Law) & Stephanie H. Barclay (Georgetown University Law Center) have posted 'A Crust of Bread': Religious Resistance and the Fourteenth Amendment (53 pages) on SSRN. Here is the abstract:
In Employment Division v. Smith, the Supreme Court denied heightened constitutional protection to religiously motivated exercise burdened by neutral and generally applicable laws. The history presented in this article suggests that the Smith approach conflicts with the original understanding of the Fourteenth Amendment. Out of the crucible of religious abolitionist resistance to the Fugitive Slave Act emerged a substantive theory of constitutional religious freedom: American citizens should have the right to obey the biblical command to care for the needy and provide the hungry a “crust of bread,” even if doing so was contrary to neutral and generally applicable state or federal law. This understanding of religious liberty informed the constitutional ideas of Reconstruction-era Republicans and, ultimately, the original understanding of the Privileges or Immunities Clause of the Fourteenth Amendment. After canvassing the historical evidence, the authors explore how replacing the Smith test with a strict scrutiny test would better protect post-Fourteenth Amendment free exercise. At the very least, the evidence in this article also supports a trajectory the Supreme Court has been on in recent cases to narrow the application of Smith by dramatically limiting the types of laws that can qualify as being neutral and generally applicable.
The authors presented an earlier version of this paper at the 15th Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference in San Diego last February.
Posted at 6:09 AM