On Monday, Stormans Inc. -- which operates a pharmacy in Washington State -- filed a cert. petition seeking review of the Ninth Circuit's decision in *Stormans, Inc. v. Wiesman*. As described more fully below, Stormans is challenging state regulations that effectively require its pharmacy to stock and dispense emergency contraception, a practice that is contrary the religious beliefs of Stormans' owners. The petition is available here:
http://www.becketfund.org/wp-content/uploads/2016/01/Stormans-SCOTUS-Cert-Petition.pdf In my view, the arguments made in the Stormans case concern some of the most interesting and unresolved aspects of the Court's post-Smith free exercise doctrine. If engaged on the merits, the arguments in Stormans would require the Court to clarify what type and what degree of secular exemptions to a law, short of the religious gerrymandering in Lukumi, are sufficient to render a law non-neutral and/or non-generally applicable, and thus subject to heightened scrutiny. Given that different circuits have taken different approaches to the issue, eventually the Court will have to step in. And Stormans argues that this is an ideal case in which to do so.* The principal challenge Stormans faces in obtaining Supreme Court review is that the Ninth Circuit decided the case by rejecting a factual predicate for the selective-exemption argument. Specifically, the Ninth Circuit concluded that the state agency responsible for enforcing the regulations has never actually endorsed or approved any of the unwritten secular exemptions upon which Stormans placed principal reliance. According to the Ninth Circuit, the agency has a complaint-based enforcement process, no complaints have ever been filed against pharmacies that are engaging in the types of secular practices that Stormans claims are undermining the regulations, and hence no exemptions for those practices can be said to exist. In its petition, Stormans contends that the Ninth Circuit's reasoning on this front is inconsistent with both Lukumi and the Third Circuit's decision in the Tenafly Eruv Association case, but my initial instinct is that the factual backdrops of the three cases are not nearly as similar Stormans contends. The logical implication of Stormans' argument seems to be that religiously motivated violations of laws must be excused anytime the government uses a complaint-driven enforcement scheme and complaints haven't been filed against some non-religiously motivated violators, and that result does not seem to be a necessary result of either Lukumi or Tenafly. In any event, it's not clear that this predicate issue is particularly cert. worthy. * Stormans also argues that the Court could summarily reverse the Ninth Circuit on the ground that the Washington State regulations amount to religious targeting as bad as the religious gerrymandering in Lukumi. I'm skeptical of this argument given that the Washington regulations apply equally to secular moral objections to dispensing particular drugs (whether it be emergency contraception or drugs produced in countries with objectionable human rights practices or drugs tested on particular animals) and religious moral objections. - Jim 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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