There are extremely detailed findings of fact that conclude exactly what Steve doubts and Marty appears to deny: pharmacies fail to stock or deliver drugs, and refer folks elsewhere, for a vast array of reasons. The district court further found that the Commission had never, ever, interfered with these practices.
The Ninth Circuit did not say that the district court was wrong about either of those findings. All it said was that the Commission had not formally approved the many referrals for business reasons, and that maybe those referrals actually violate the rules, even if those rules are never enforced against anyone but Stormans, and that if anyone ever complains about a referral with business motivations, maybe the Commission will do something about it. We are now 26 years since Employment Division v. Smith made the concept of generally applicable law central to the Free Exercise Clause. And we still don’t know what that concept means. The issue is clearly cert worthy, even if the Court did not want to confront it short handed, and even if the Pharmacy Commission’s dodge of not actually writing down the rules it does and does not enforce muddied the record here. 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 Steven Green Sent: Tuesday, June 28, 2016 4:39 PM To: Law & Religion issues for Law Academics <Religionlaw@lists.ucla.edu> Subject: stocking rule In follow-up to Marty's comments, isn't comparison to the business stocking rule a red herring? As many have pointed out, pharmacies have many reasons not to carry every drug: supply and demand; availability; storage space, etc. Based on my personal experience and in having a child with a special need, pharmacies are always willing, if not eager for the $, to order a drug they don't carry. So by not carrying a drug they are not "refusing" to do so in the same manner as in Stormans. So is it accurate to say that pharmacies receive an exemption for business reasons that they wouldn't for religious reasons? Steve -- Steven K. Green, J.D., Ph.D. Fred H. Paulus Professor of Law and Director Center for Religion, Law and Democracy Willamette University 900 State St., S.E. Salem, Oregon 97301 503-370-6732
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