This case is *very *confused, and complicated, as a factual matter, by virtue of the interactions of two different Washington regulations--the "Stocking" rule and the "Delivery" rule--and the fact that the State has not enforced either rule against Storman's or any other religious objector. For what it's worth, I believe Alito's description of the facts--his treatment of the distinct operations of, and practices under, the two rules--is incomplete and misleading, for reasons I'd be happy to discuss offline. But that's really beside the point now that the Court has denied cert. (It would have created a nightmare of untangling had they granted cert.)
For now, I would just point out the following: Even on Alito's own account of the facts and the Washington regulations, the State does not "uniquely burden religiously motivated conduct." This is the telling passage in his dissent: While the regulations themselves do not expressly single out *religiously motivated* referrals, the Board’s guidance accompanying the regulations does: “The rule,” it warns, “does not allow a pharmacy to refer a patient to another pharmacy to avoid filling the prescription *due to moral or ethical objections*.” SER 1248 (emphasis added). Religious objections to contraception, in other words, are not "uniquely burdened," even on Alito's view of the case; instead, they are--at *worst*--treated exactly the same as other "moral or ethical objections." On Tue, Jun 28, 2016 at 9:43 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > 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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