The lack of clarity in the record arises the state’s decision to pursue its goals by indirection. Nothing in the text of the regulations prohibits refusals to stock and deliver drugs for religious, moral, or ethical reasons. Yet everyone understands that that is the whole point. Nothing in the text of the regulations either prohibits or permits refusals to stock and deliver drugs for business reasons. Yet nearly everyone understands that permitting the longstanding tradition of refusals for many and varied business reasons was an equally intended part of the deal. Everything is clear to the industry, but nothing is written down.
The Ninth Circuit allowed this strategy to work. It accepted without question the unwritten ban on religious refusals, and refused to acknowledge the equally unwritten permission for business refusals. The argument that it was also part of the intention to prohibit refusals for secular ethical reasons is like Hialeah’s argument that its ordinances would also apply to voodoo, and that voodoo was not a religion. One tiny application that is arguably secular – really just a variation on the religious objection – does not make a law generally applicable. And in fact, despite considerable effort at trial, the state could find no example of a pharmacist with secular moral objections to religious contraception. That appears to be an empty set in Washington. The Alito dissent is apparently why the case was held so long and relisted so many times. And of course I like the Alito dissent. But I have to say that his footnote 6 is utterly shameless in light of his dissent yesterday in Woman’s Whole Health. He says that of course Stormans can bring “a future as-applied challenge to the Board’s regulations.” But yesterday, a much less thorough litigation of a pre-enforcement challenge was obviously res judicata in a post-enforcement challenge based on actual experience. It is hard to see how he can have it both ways. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Tuesday, June 28, 2016 11:28 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> 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<mailto: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<mailto: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<mailto: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<mailto: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
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