*Seeger *provides a definition of "religion" for a particular *statute*. I don't think there's any dispute that the FEC -- and *Lukumi* -- adopts a narrower view of what constitutes "religion."
On Tue, Jun 28, 2016 at 11:32 AM, Conkle, Daniel O. <con...@indiana.edu> wrote: > With respect to the issue of religious as opposed to other moral and > ethical objections: > > > > Does it matter for purposes of the Lukumi analysis whether religious > exercise, as protected by the Free Exercise Clause, is defined narrowly and > traditionally or, instead, is defined broadly enough to include the > exercise of moral and ethical beliefs that are comparable to traditionally > religious beliefs? Cf. Seeger. > > > > Dan > > ************************************************ > > Daniel O. Conkle > > Robert H. McKinney Professor of Law > > Indiana University Maurer School of Law > > Bloomington, Indiana 47405 > > (812) 855-4331 > > fax (812) 855-0555 > > e-mail con...@indiana.edu > > ************************************************ > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske > *Sent:* Tuesday, June 28, 2016 11:25 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Cert. Petition Filed in Pharmacy Free Exercise Case > > > > The bulk of Justice Alito's dissent focuses on the argument Stormans made > at the beginning of its cert petition in support of summary reversal: the > pharmacy regulations amount to religious targeting akin to the targeting > in Lukumi. (Marty notes below the central problem with this argument: the > regulations actually cover all moral and ethical objections, not just > religious objections. Thus, the pharmacy owner who has secular ethical > objections to carrying drugs tested on animals or produced in countries > with records of human rights abuses is no more entitled to an exemption > under the regulations than are the owners of Stormans.) > > > > Notwithstanding the dissent's primary focus on the religious-targeting > argument, there is one section of the dissent (III.B) indicating how the > three dissenting justices might come down on the broader > "selective-exemption" issue that has split the circuits: whether, in the > absence of a religious targeting, the inclusion of one or more secular > exemptions in a law triggers a constitutional requirement that religious > exemptions be made when requested. Section III.B. of the dissent indicates > that three justices believe the answer is "yes" if the religious exemptions > would not undermine the state's interest in the law more than the existing > exemptions. > > > > - Jim > > > > > > On Tue, Jun 28, 2016 at 7:20 AM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > > 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 > > > > > > > _______________________________________________ > 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. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
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