I agree with Marty that there is an interesting and important question
lurking in Stormans -- "whether [and when] the FEC requires a religious
exemption due to the presence of a single secular exemption, even if
religion is not singled out" -- but I'm not sure it's buried quite so far
down in the weeds of the case as Marty indicates. As I read it, Section
III.B. of Justice Alito's dissent raises precisely this issue by relying on
a single exemption, albeit a different one than the one Marty discusses
below.
Putting aside whether the Stormans case is an appropriate vehicle at this
stage for resolving the breadth of the Smith/Lukumi selective-exemption
rule, I think the issue is cert. worthy, as it has pretty clearly resulted
in a circuit split:
Compare Blackhawk v. Pennsylvania, 381 F.3d 202, 211 (3d Cir. 2004) (Alito,
J.) ("The categorical exemptions in 34 Pa. Cons.Stat. Ann. § 2965(a) for
zoos and 'nationally recognized circuses' likewise trigger strict scrutiny
because at least some of the exemptions available under this provision
undermine the interests served by the fee provision to at least the same
degree as would an exemption for a person like Blackhawk."),
with Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004) (*Smith*
's “individualized exemption” exception is limited, then, to systems that
are designed to make case-by-case determinations. The exception does not
apply to statutes that, although otherwise generally applicable, contain
express exceptions for objectively defined categories of persons."), and
Thomas v. Anchorage Equal Rights Commn.,165 F.3d 692, 701–02 (9th Cir.
1999) ("Underinclusiveness is not in and of itself a talisman of
constitutional infirmity; rather, it is significant only insofar as it
indicates something more sinister.") (quoting Lukumi, 508 U.S. at 547)
(emphasis added, internal citations omitted), vacated on ripeness grounds
on rehearing en banc, 220 F.3d 1134 (9th Cir. 2000).
- Jim
On Tue, Jun 28, 2016 at 11:03 AM, Marty Lederman <lederman.ma...@gmail.com>
wrote:
> There might be an interesting and potentially important FEC question
> potentially lurking in the weeds of *Storman's*, once one strips away the
> false narrative that the plaintiffs and Alito have saddled it with, and
> once one realizes that Washington does not "*uniquely* burden religiously
> motivated conduct." The issue that *might be *present (depending on the
> facts) is whether the FEC requires a religious exemption due to the
> presence of a single secular exemption, even if religion is not singled
> out, and even if analogous objections (based on other, nonreligious
> objections to certain drugs) are not honored. This is, of course, the
> debate we've had many times on this Listserv between what we might call the
> "modest" and "reobust" readings of *Lukumi*.
>
> It's uncontested that if a pharmacy does not stock a drug, for a reason
> that *satisfies *the "stocking rule," it has no obligation under
> Washington law to *deliver *that drug to customers. See WAC
> 246-869-010(e) (there's no requirement of delivery due to "unavailability
> of [the] drug or device despite good faith compliance with [the stocking
> rule]"). Therefore, the real action is (or ought to be) with respect to
> the "stocking" rule itself, which the plaintiffs have thus far failed to
> challenge. (The pharmacies aren't seeking the right not to deliver drugs
> that are on their shelves--they want to be able not to stock ella and Plan
> B in the first place.)
>
> The Washington stocking rule reads as follows: "The pharmacy must
> maintain at all times a representative assortment of drugs in order to meet
> the pharmaceutical needs of its patients." That is to say, the stocking
> rule appears to require a pharmacy to stock a drug if there's sufficient
> consumer demand for it. Or, put another way, perhaps a pharmacy is not
> required to stock sufficient quantities of *every *drug that its
> clientele might at any time be prescribed--that'd be unrealistic--but its
> stock must be "representative" of its customers' needs.
>
> *The stocking rule has been in place since 1967, was not promulgated in
> order to target religion, and it admits of no exceptions. *(Perhaps for
> those reasons, the plaintiff pharmacies never mentioned the Stocking Rule
> in any of their three complaints.)
>
> The petitioners assert, as does Doug, that pharmacies have been violating
> the stocking rule with impunity since 1967--by not stocking drugs that have
> a low profit-margin, or that would actually cost* t*he pharmacies money.
> But the State of Washington has never said that that practice, if it
> exists, is permissible. (Indeed, an agency guideline specifically excludes
> the cost of a drug as a reason not to comply with the stocking
> requirement.) To be sure, the agency has rarely investigated alleged
> violations of the stocking rule -- but that's because there haven't been
> many complaints and *pharmacies generally have not announced that they
> refuse to stock a drug* for which their is a consumer demand.
>
> Stormans was a fairly unique case in that respect: The pharmacy publicly
> *announced
> *that it was refusing to stock Ella and Plan B--which, naturally enough,
> triggered consumer complaints. Those complaints in turn triggered agency
> investigations, but those investigations have *not *(not yet, anyway)
> resulted in any sanctions against Stormans and other religious objectors.
>
> Let's say, however, that discovery *did *reveal what the State here
> denies -- that it has enforced a *de facto *exception to the stocking
> rule in cases where the pharmacy in question would not realize a profit on
> a particular drug, i.e., where it was not cost-effective. Would that
> secular exception, standing alone, trigger *Lukumi *strict scrutiny and,
> if so, would the State satisfy that scrutiny, even though the State would
> reject all other reasons for failing to stock, including but not limited to
> religious reasons and other ethical and moral reasons?
>
> I think that is, indeed, an interesting question. But it's probably not
> one raised by this case--and, in any event, it almost certainly is not
> cert.-worthy.
>
>
>
> On Tue, Jun 28, 2016 at 12:09 PM, Marty Lederman <lederman.ma...@gmail.com
> > wrote:
>
>> "[The Ninth Circuit] accepted without question the unwritten ban on
>> religious refusals [to stock], and refused to acknowledge the equally
>> unwritten permission for business refusals [to stock]."
>>
>> My understanding is that (i) the stocking rule on its face does not
>> permit *any *reasons for refusal to stock, other than a lack of demand
>> among customers; but that (ii) in practice Washington has rarely if ever
>> sanctioned any pharmacy for failing to stock any drug--*including the
>> plaintiffs here*, who have not yet been sanctioned.
>>
>> Therefore the case is woefully premature: If and when Washington
>> sanctions Stormans for refusing to stock Ella or Plan B, and if and when
>> Stormans sues to challenge this *enforcement action *as
>> discriminatory (rather than challenging the rules on their face, which are
>> nondiscriminatory, as Stormans did here), then we might have a trial to see
>> if the state has declined to likewise sanction similarly situated
>> pharmacies that have invoked other sorts of reasons for non-stocking, or
>> otherwise treated such pharmacies more favorably than the state treats
>> Stormans.
>>
>> But we're not there yet.
>>
>> On Tue, Jun 28, 2016 at 11:50 AM, Laycock, H Douglas (hdl5c) <
>> hd...@virginia.edu> wrote:
>>
>>> 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> 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
>>>
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
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>>>
>>
>>
>
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
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>
_______________________________________________
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