Link to decision: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/23/12-35221.pdf
On Thu, Jul 23, 2015 at 10:48 AM, James Oleske <jole...@lclark.edu> wrote: > Today, the Ninth Circuit issued its opinion in *Stormans, Inc. v. Wiesman*, > a long-running case involving a pharmacy's free-exercise challenge to > Washington State's requirement that pharmacies dispense all lawfully > prescribed or approved drugs, including emergency contraception. The court > ruled in favor of the state, holding that the state's rule was neutral and > generally applicable and thus subject to only rational basis review. The > pharmacy had argued that because the state's rule excuses failures to > dispense for certain reasons (e.g., lack of specialized equipment to make > drug; drug out of stock; payment-type not accepted), and gives the state > some discretion in applying those exemptions, it is not neutral and > generally applicable, and must include an exemption allowing pharmacies to > refuse to dispense drugs for religious reasons unless the state can satisfy > strict scrutiny. > > Professor McConnell, the Becket Fund, and the Alliance Defending Freedom > represented the pharmacy, and a group of 24 law professors filed an amicus > brief supporting the pharmacy's selective-exemption argument. The amicus > brief concisely distills its core argument as follows: "Laws that burden > religion and apply to some but not all analogous secular conduct are not > generally applicable.... A singular secular exception triggers strict > scrutiny if it undermines the state interest allegedly served by applying > the rule to religious conduct." Perkins Coie and Planned Parenthood > represented Intervenors who joined the State as appellants in the Ninth > Circuit, and amicus briefs were filed in support of the appellants by > Americans United and the National Women's Law Center. Additional amicus > briefs were filed on both sides. > > The case previously reached the Ninth Circuit (as *Stormans, Inc. v. > Selecky*) back in 2009, and the court at that time reversed the district > court's grant of a preliminary injunction in favor of the pharmacy. > Specifically, the Ninth Circuit rejected the district court's decision to > apply strict scrutiny, instead concluding that the existing exemptions to > the dispensing requirement "are a reasonable part of the regulation of > pharmacy practice, and their inclusion in the statute does not undermine > the general applicability of the [dispensing requirement]." Notwithstanding > that ruling, the district court -- based on further fact-finding at trial > -- concluded in February 2012 that the dispensing requirement was not > neutral and generally applicable and was being selectively applied, and it > again applied strict scrutiny and ruled in favor of the pharmacy (the > district court's opinion, findings of fact, and conclusions of law fill > over ninety pages in the Federal Supplement). The case went back up to the > Ninth Circuit, which held argument last fall. (The argument was originally > scheduled for late 2013, but it was postponed after the Supreme Court > granted cert in *Hobby Lobby*.) > > In today's decision, the Ninth Circuit again found the rule to be neutral > and generally applicable, relying in part on its previous decision as law > of the circuit. In rejecting the pharmacy's "secular exemptions require > religious exemptions" argument, the court relied on its earlier decision to > conclude that the secular exemptions to Washington's pharmacy rules > "further" (rather than undermine) the rules' goal. Slip op. at 28. In > response to the argument that the rules gave the state discretion on > granting exemptions, and thus triggered the Sherbert/Smith/Lukumi > "indiviidualized exemptions" rule, the court concluded: > > "The mere existence of an exemption that affords some minimal governmental > discretion does not destroy a law’s general applicability. . . . In > summary, because the exemptions at issue are tied directly to limited, > particularized, business related, objective criteria, they do not create a > regime of unfettered discretion that would permit discriminatory treatment > of religion or religiously motivated conduct." Slip op. at 32-33 > > In support of this conclusion, the Court cited decisions from both the > Third and Tenth Circuits, which is interesting because other decisions from > those same circuits are often cited as the strongest support for a broad > understanding of the selective-exemption rule that would go beyond > situations suggesting discriminatory intent. While I have argued that the > broad understanding of the selective-exemption rule cannot be reconciled > with the Supreme Court’s current understanding of the Free Exercise Clause" > (ssrn.com/abstract=2216207), many religious-liberty scholars disagree, as > evidenced by the amicus brief filed in Stormans ( > http://www.becketfund.org/wp-content/uploads/2011/02/Constitutional-Law-Scholars-Brief.pdf) > and a more recent amicus brief filed by Doug Laycock and Tom Berg in > Obergefell ( > http://sblog.s3.amazonaws.com/wp-content/uploads/2015/03/14-556tsacLaycock.pdf). > > > I suspect that the Ninth Circuit's opinion is not likely to be the final > word on the scope of the selective-exemption rule. > > - Jim > >
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