15-page Alito dissent from denial, joined by Roberts and Thomas: http://www.supremecourt.gov/orders/courtorders/062816zr_29m1.pdf
On Thu, Jun 2, 2016 at 1:20 AM, James Oleske <jole...@lclark.edu> wrote: > A quick update on the petition in Stormans. After the petition was > relisted for conference several times, the lower court record was requested > on May 19 and received on May 26, and the petition is back on the schedule > for tomorrow's conference (June 2). > > As I've said before, I think some of the legal arguments made in the > petition are cert worthy. But the Ninth Circuit decided the case by > rejecting a factual predicate for those arguments -- a predicate that was > central to the district court's decision in favor of Stormans. Which might > explain the record request. > > In any event, if cert is granted, this has the makings of a landmark free > exercise case. > > - Jim > > > On Mon, Jan 4, 2016 at 11:34 PM, James Oleske <jole...@lclark.edu> wrote: > >> 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 >>> >>> >> > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. 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