Re: Why didn't Stormans bring a state free exercise claim?

[James Oleske]

Thanks, Greg. Will Baude also raised the Pennhurst issue with me offline,
and I agree that it provides a very good reason for Stormans not to have
brought the state law claim in the federal court lawsuit.

That said, given that the Washington constitution has been interpreted to
provide broader protection to religious exercise than the federal
constitution, I do wonder why Stormans chose to prioritize exclusively
pursuing a federal lawsuit, even after the Ninth Circuit's decision in 2009
that the pharmacy rules should only be subject to rational basis review
under the federal constitution.

Of course, the choices left to litigants by Pennhurst can be tough,
particularly if such litigants cannot utilize an England reservation in
state court to preserve their ability to litigate the federal issues in
federal court. In the past, the Ninth Circuit has held that litigants can
utilize an England reservation in bifurcated litigation resulting from a
Pennhurst bar, UPS v. Cal. Pub. Utilities Comm'n, 77 F.3d 1178, 1182-1186
(9th Cir. 1996), but Will has pointed out to me that a portion of the
Supreme Court's subsequent  opinion in San Remo Hotel v. San Francisco, 545
U.S. 323 (2005), could be read as inconsistent with the England analysis in
UPS.

So, at the end of the day, while I might have made a different strategic
choice based on my perception that there was a stronger state law claim
than federal law claim in the case, as well as my perception that the
Washington Supreme Court would be no less hospitable to Stormans federal
claim than the Ninth Circuit, I can understand why Stormans might choose to
forgo bringing a state lawsuit to avoid the possibility of a state court
decision precluding their ability to litigate the federal issue in federal
court. And given Stormans' success in the district court, and the fact that
they came within one vote of getting cert using the federal court vehicle,
perhaps their strategic choice was the right one.

- Jim



On Tue, Jun 28, 2016 at 8:21 PM, Gregory S. Baylor 
wrote:

> In *Pennhurst*, the Supreme Court held that the Eleventh Amendment
> forbids federal courts from awarding injunctive relief against state
> officials on the basis of state law.
>
>
>
> This rule did not apply in *Merced*, where the plaintiffs sued municipal
> officials.
>
>
>
> Greg Baylor
>
>
> [image: Alliance Defending Freedom]    Gregory
> S. Baylor
> Senior Counsel, Director of Center for Religious Schools
> 202-393-8690 (Office)
> 202-888-7628 (Direct Dial)
> 202-347-3622 (Fax)
> gbay...@adflegal.org
> ADFlegal.org
> Not Licensed in DC
> Practice Limited to Federal Court
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
> *Sent:* Tuesday, June 28, 2016 9:48 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Why didn't Stormans bring a state free exercise claim?
>
>
>
> Like the plaintiff in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), I
> believe the owners of Stormans could have brought both (1) a federal free
> exercise claim, which faced the challenge of getting past the Smith hurdle,
> and (2) a state free exercise claim under a Sherbert/Yoder-like exemption
> regime, which exists in Texas by virtue of a state RFRA and in Washington
> State by virtue of the state Supreme Court's interpretation of the
> Washington constitution.
>
>
>
> Unlike the plaintiff in Merced, who made both arguments and prevailed on
> their Texas RFRA claim, the owners of Stormans did not bring a state-law
> exemption claim.
>
>
>
> Does anyone on the list know why?
>
>
>
> - Jim
>
> This e-mail message from Alliance Defending Freedom and any accompanying
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> metadata, that is confidential, privileged, attorney work product, or
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> prohibited. If you have received this message in error, please immediately
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>
>
> ___
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RE: Why didn't Stormans bring a state free exercise claim?

[Gregory S. Baylor]

In Pennhurst, the Supreme Court held that the Eleventh Amendment forbids 
federal courts from awarding injunctive relief against state officials on the 
basis of state law.

This rule did not apply in Merced, where the plaintiffs sued municipal 
officials.

Greg Baylor

[Alliance Defending Freedom]  Gregory S. 
Baylor
Senior Counsel, Director of Center for Religious Schools
202-393-8690 (Office)
202-888-7628 (Direct Dial)
202-347-3622 (Fax)
gbay...@adflegal.org
ADFlegal.org
Not Licensed in DC
Practice Limited to Federal Court


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Tuesday, June 28, 2016 9:48 PM
To: Law & Religion issues for Law Academics
Subject: Why didn't Stormans bring a state free exercise claim?

Like the plaintiff in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), I believe 
the owners of Stormans could have brought both (1) a federal free exercise 
claim, which faced the challenge of getting past the Smith hurdle, and (2) a 
state free exercise claim under a Sherbert/Yoder-like exemption regime, which 
exists in Texas by virtue of a state RFRA and in Washington State by virtue of 
the state Supreme Court's interpretation of the Washington constitution.

Unlike the plaintiff in Merced, who made both arguments and prevailed on their 
Texas RFRA claim, the owners of Stormans did not bring a state-law exemption 
claim.

Does anyone on the list know why?

- Jim


This e-mail message from Alliance Defending Freedom and any accompanying 
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Why didn't Stormans bring a state free exercise claim?

[James Oleske]

Like the plaintiff in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), I
believe the owners of Stormans could have brought both (1) a federal free
exercise claim, which faced the challenge of getting past the Smith hurdle,
and (2) a state free exercise claim under a Sherbert/Yoder-like exemption
regime, which exists in Texas by virtue of a state RFRA and in Washington
State by virtue of the state Supreme Court's interpretation of the
Washington constitution.

Unlike the plaintiff in Merced, who made both arguments and prevailed on
their Texas RFRA claim, the owners of Stormans did not bring a state-law
exemption claim.

Does anyone on the list know why?

- Jim
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Is California's proposed "Equity in Higher Education Act" SB 1146 constitutional?

[Michael Peabody]

SB 1146 is currently up for consideration at the California State
Assembly Judiciary this Thursday.

The heading of the bill states, "The Equity in Higher Education Act
among other things, prohibits a person from being subjected to
discrimination on the basis of specified attributes, including sex, in
any program or activity conducted by a postsecondary educational
institution that receives, or benefits from, state financial
assistance or enrolls students who receive state student financial
aid. Existing federal law, known as Title IX of the Education
Amendments of 1972, prohibits a person, on the basis of sex, from
being excluded from participation in, being denied the benefits of, or
being subject to discrimination under, any education program or
activity receiving federal financial assistance. Both the federal and
state laws do not apply to an educational institution that is
controlled by a religious organization if the application would not be
consistent with the religious tenets of that organization. Title IX
provides a private right of action for violation of its provisions by
a public postsecondary educational institution."
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB1146

The bill is of significant importance for California's various
religious colleges and universities which have to decide whether to
refuse to comply and litigate the issue, forgo benefits from
significant state funding, acquiesce and modify their
non-discrimination policies, close down, or move out-of-state.

Putting aside the issue of whether religious colleges "should"
discriminate on the basis of gender, gender identity, gender
expression, nationality, race or ethnicity, sexual orientation, my
questions are more as to whether this law would actually pass
constitutional muster.

Here are some issues I'm thinking of:

1.  Whether SB 1146 unconstitutionally imposes an untenable
requirement as a condition of continued state funding (Cal Grants
which students at religious colleges have been receiving for decades)
on California's religious colleges and universities with the intention
of pressuring them to compromise their religious beliefs?

2.  Whether the non-discrimination provision would trump the equal
protection argument that the government cannot use an aspect of faith to
discriminate in the provision of benefits (Cal Grant scholarship
funds) to students who attend
private religious schools (Agostini)?

3.  Whether the state can treat the rights of religious institutions
to discriminate based on religion (permitted) and sexual orientation
(not permitted) differently. The logic is somewhat like an
Escher staircase – can a state prohibit discrimination based on sexual
orientation while simultaneously permitting discrimination based on
religion when a tenet of that religion requires discrimination based on
sexual orientation?

4.  Whether the issue of excluding colleges from funding could be
impacted by the pending Supreme Court case, Trinity Lutheran Church v.
Pauley, set on the issue of  whether religious schools (actually a
preschool in that case) should be able to force a state government to
abandon a state constitutional
prohibition on funding to religious institutions and provide the
religious school with generally available benefits?

5.  Finally with regard to the private right of action to sue, whether
the state can create a private right of action in state court to sue
institutions that have received a Federal Title IX exemption by virtue of the
fact that the institution operates in line with that exemption?

Thanks!

Michael Peabody, Esq.
ReligiousLiberty.TV
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Re: stocking rule

[Marty Lederman]

This is probably not worth the candle any longer, but I'd simply emphasize
(i) that the plaintiffs did not challenge the stocking rule; (ii) that the
agency has not taken any action against Stormans for failing to stock Plan
B and ella (not yet, anyway); (iii) that Stormans is a rather unique case
in that the pharmacy here *publicly announced *that it would not carry
certain drugs (which naturally triggered a complaint that doesn't typically
happen when pharmacies simply fail to stock without any such
pronouncement); and (iv) that there is no evidence -- not yet, anyway --
that the agency will treat Stormans any differently than it has treated
other, similarly situated pharmacies it has investigated for failure to
stock.

Look at it from the flip side:  If my understanding of the record is
correct, if the agency here were to say to Stormans, publicly, that
"notwithstanding the stocking rule, which has no exceptions, you may refuse
to stock ella and Plan B, even though we have never conferred such an
exemption upon any other pharmacy for any reason," then in that case
Stormans would be subject to disparate treatment:  It would be the first
pharmacy in the 50 years of the stocking rule to receive an express
exemption from that requirement.  Does *Lukumi *require that?

On Tue, Jun 28, 2016 at 4:54 PM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> 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 
> *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
>
> ___
> 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
>
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> 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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RE: stocking rule

[Laycock, H Douglas (hdl5c)]

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 
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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stocking rule

[Steven Green]

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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Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[James Oleske]

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 
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 

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

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 
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 

RE: Cert. Petition Filed in Pharmacy Free Exercise Case

[Conkle, Daniel O.]

I agree with Sandy, at least to this extent:  defining religion is increasingly 
problematic, but as long as religion carries distinctive constitutional or 
legal significance, it requires some sort of constitutional or legal definition 
– perhaps explicitly stated, perhaps implicitly understood.  One response to 
the definitional problem is to reduce or eliminate religion’s distinctive 
constitutional/legal status; we’ve had some movement in that direction, and 
some argue that there should be more.  Another response to the definitional 
issue is to engage in a context-specific approach that includes a measure of 
analogical reasoning, as Kent Greenawalt has proposed.  See Kent Greenawalt, 
Religion as a Concept in Constitutional Law, 72 Cal. L. Rev. 753 (1984).

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 Levinson, Sanford V
Sent: Tuesday, June 28, 2016 12:04 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. Petition Filed in Pharmacy Free Exercise Case

Does anyone seriously believe that the Supreme Court is capable of offering a 
“constitutional definition of religion” that would not instantly be ridiculed 
by a variety of academic students of religion (whether theologicans, 
philosophers, historians, anthropologists, or sociologists), not to mention 
ordinary persons who would be excluded as “religious” by whatever the Court 
said (unless, of course, the Court went the Tillichian route of describing as 
“religious” anyone who professed to have some “ultimate concern,” whatever it 
was and whatever form it took?  I agree that the language of the Constitution, 
for better and worse, forces lawyers to address its meaning.  That’s not the 
question.  It is whether (and under what circumstances) the audience would take 
the Court’s answer as truly dispositive.  Cf. the plurality opinion in Casey in 
which the country was told that it should simply accept, without further ado, 
whatever the Court said about abortion.

sandy



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O.
Sent: Tuesday, June 28, 2016 10:52 AM
To: 'Law & Religion issues for Law Academics' 
>
Subject: RE: Cert. Petition Filed in Pharmacy Free Exercise Case

I don’t think this is obviously so, Marty.  Lukumi didn’t present this question 
because a narrow sense of religion was clearly at issue.  I think the 
constitutional definition of religion remains an open question, and the 
resolution of that question could bear on the proper application of the Lukumi 
analysis as to deliberate targeting as well as general applicability.

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 Marty Lederman
Sent: Tuesday, June 28, 2016 11:44 AM
To: Law & Religion issues for Law Academics
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

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. 
> 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

RE: Cert. Petition Filed in Pharmacy Free Exercise Case

[Christopher Lund]

True that Welsh was construing one particular statute.  But the case was an 
avoidance case; the Court was construing that particular statute in light of 
general constitutional considerations.  And those general constitutional 
considerations seemed to be that secular conscientious objectors deserved the 
same treatment as religious conscientious objectors.  And so if, in any given 
situation, the FEC requires an exemption for religious conscientious objectors, 
I would think secular conscientious objectors have a pretty straightforward 
argument.

The other part of it is this.  The statements in Yoder and Frazee are the 
purest dicta.  (It is not necessary, in giving X an exemption, to opine why Y 
might not deserve an exemption.)  But the statements in Welsh protecting 
secular conscientious objection are necessary to the holding of the case.

So, in conclusion, I think there’s a straightforward argument that the FEC 
protects secular conscientious views.  And, given that Seeger and Welsh were 
settled law at the time Congress passed RFRA, I think there’s even more of an 
argument that RFRA protects them. Now I should say that I don’t know if I’m 
completely convinced by this argument.  I’m just explaining why I think the 
issue is contested.

Best,
Chris

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, June 28, 2016 12:32 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

Once again, Welsh, like Seeger, was construing a statute, not the FEC.

Sent from my iPhone

On Jun 28, 2016, at 12:18 PM, Christopher Lund 
> wrote:
Isn’t the simple answer that there’s tension between Yoder/Frazee and Welsh?  
That’s how I’ve always taught it.  Burger wrote Yoder; White wrote Frazee; but 
both of them dissented in Welsh.

This seems a pretty open question to me.

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, June 28, 2016 12:08 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

From Frazee:

There is no doubt that “[o]nly beliefs rooted in religion are protected by the 
Free Exercise Clause,” Thomas, supra, 450 U.S., at 713, 101 S.Ct., at 
1430.
 Purely secular views do not suffice. United States v. Seeger, 380 U.S. 163, 85 
S.Ct. 850, 13 L.Ed.2d 733 
(1965);Wisconsin
 v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 
(1972).

From Yoder:

[T]o have the protection of the Religion Clauses, the claims must be rooted in 
religious belief. Although a determination of what is a ‘religious' belief or 
practice entitled to constitutional protection may present a most delicate 
question,6
 the very concept of ordered liberty precludes allowing every person to make 
his own standards on matters of conduct in which society as a whole has 
important interests. Thus, if the Amish asserted their claims because of their 
subjective evaluation and rejection of the contemporary secular values accepted 
by the majority, much as Thoreau rejected the social values of his time and 
isolated himself at Walden Pond, their claims would not rest on a religious 
basis. Thoreau's choice was philosophical and personal rather than religious, 
and such belief does not rise to the demands of the Religion Clauses.

On Tue, Jun 28, 2016 at 11:52 AM, Conkle, Daniel O. 
> wrote:
I don’t think this is obviously so, Marty.  Lukumi didn’t present this question 
because a narrow sense of religion was clearly at issue.  I think the 
constitutional definition of religion remains an open question, and the 
resolution of that question could bear on the proper application of the Lukumi 
analysis as to deliberate targeting as well as general applicability.

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 

RE: Cert. Petition Filed in Pharmacy Free Exercise Case

[Conkle, Daniel O.]

Yes, but Seeger and Welsh both were influenced by constitutional 
considerations, including the risk that a narrow statutory definition, limiting 
the statute to conventional religion, would render the statute 
unconstitutionally sectarian under the religion clauses, a constitutional claim 
that makes sense only if a broad constitutional definition of religion is 
assumed.  On the other hand, yes, there is the language of Yoder and Fraser, 
and it’s more recent.  And then again, there is the citation to Seeger that 
Eugene highlights.

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 Marty Lederman
Sent: Tuesday, June 28, 2016 12:32 PM
To: Law & Religion issues for Law Academics
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

Once again, Welsh, like Seeger, was construing a statute, not the FEC.

Sent from my iPhone

On Jun 28, 2016, at 12:18 PM, Christopher Lund 
> wrote:
Isn’t the simple answer that there’s tension between Yoder/Frazee and Welsh?  
That’s how I’ve always taught it.  Burger wrote Yoder; White wrote Frazee; but 
both of them dissented in Welsh.

This seems a pretty open question to me.

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, June 28, 2016 12:08 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

From Frazee:

There is no doubt that “[o]nly beliefs rooted in religion are protected by the 
Free Exercise Clause,” Thomas, supra, 450 U.S., at 713, 101 S.Ct., at 
1430.
 Purely secular views do not suffice. United States v. Seeger, 380 U.S. 163, 85 
S.Ct. 850, 13 L.Ed.2d 733 
(1965);Wisconsin
 v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 
(1972).

From Yoder:

[T]o have the protection of the Religion Clauses, the claims must be rooted in 
religious belief. Although a determination of what is a ‘religious' belief or 
practice entitled to constitutional protection may present a most delicate 
question,6
 the very concept of ordered liberty precludes allowing every person to make 
his own standards on matters of conduct in which society as a whole has 
important interests. Thus, if the Amish asserted their claims because of their 
subjective evaluation and rejection of the contemporary secular values accepted 
by the majority, much as Thoreau rejected the social values of his time and 
isolated himself at Walden Pond, their claims would not rest on a religious 
basis. Thoreau's choice was philosophical and personal rather than religious, 
and such belief does not rise to the demands of the Religion Clauses.

On Tue, Jun 28, 2016 at 11:52 AM, Conkle, Daniel O. 
> wrote:
I don’t think this is obviously so, Marty.  Lukumi didn’t present this question 
because a narrow sense of religion was clearly at issue.  I think the 
constitutional definition of religion remains an open question, and the 
resolution of that question could bear on the proper application of the Lukumi 
analysis as to deliberate targeting as well as general applicability.

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 Marty Lederman
Sent: Tuesday, June 28, 2016 11:44 AM

To: Law & Religion issues for Law Academics
Subject: 

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

Once again, Welsh, like Seeger, was construing a statute, not the FEC.

Sent from my iPhone

> On Jun 28, 2016, at 12:18 PM, Christopher Lund  wrote:
> 
> Isn’t the simple answer that there’s tension between Yoder/Frazee and Welsh?  
> That’s how I’ve always taught it.  Burger wrote Yoder; White wrote Frazee; 
> but both of them dissented in Welsh.
>  
> This seems a pretty open question to me.
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
> Sent: Tuesday, June 28, 2016 12:08 PM
> To: Law & Religion issues for Law Academics 
> Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case
>  
> From Frazee:
>  
> There is no doubt that “[o]nly beliefs rooted in religion are protected by 
> the Free Exercise Clause,” Thomas, supra, 450 U.S., at 713, 101 S.Ct., at 
> 1430. Purely secular views do not suffice. United States v. Seeger, 380 U.S. 
> 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965);Wisconsin v. Yoder, 406 U.S. 205, 
> 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972). 
>  
> From Yoder:
>  
> [T]o have the protection of the Religion Clauses, the claims must be rooted 
> in religious belief. Although a determination of what is a ‘religious' belief 
> or practice entitled to constitutional protection may present a most delicate 
> question,6 the very concept of ordered liberty precludes allowing every 
> person to make his own standards on matters of conduct in which society as a 
> whole has important interests. Thus, if the Amish asserted their claims 
> because of their subjective evaluation and rejection of the contemporary 
> secular values accepted by the majority, much as Thoreau rejected the social 
> values of his time and isolated himself at Walden Pond, their claims would 
> not rest on a religious basis. Thoreau's choice was philosophical and 
> personal rather than religious, and such belief does not rise to the demands 
> of the Religion Clauses.
>  
> On Tue, Jun 28, 2016 at 11:52 AM, Conkle, Daniel O.  
> wrote:
> I don’t think this is obviously so, Marty.  Lukumi didn’t present this 
> question because a narrow sense of religion was clearly at issue.  I think 
> the constitutional definition of religion remains an open question, and the 
> resolution of that question could bear on the proper application of the 
> Lukumi analysis as to deliberate targeting as well as general applicability.
>  
> 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 Marty Lederman
> Sent: Tuesday, June 28, 2016 11:44 AM
> 
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case
>  
> 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.  
> 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 

RE: Cert. Petition Filed in Pharmacy Free Exercise Case

[Christopher Lund]

Isn’t the simple answer that there’s tension between Yoder/Frazee and Welsh?  
That’s how I’ve always taught it.  Burger wrote Yoder; White wrote Frazee; but 
both of them dissented in Welsh.

This seems a pretty open question to me.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, June 28, 2016 12:08 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

From Frazee:

There is no doubt that “[o]nly beliefs rooted in religion are protected by the 
Free Exercise Clause,” Thomas, supra, 450 U.S., at 713, 101 S.Ct., at 
1430.
 Purely secular views do not suffice. United States v. Seeger, 380 U.S. 163, 85 
S.Ct. 850, 13 L.Ed.2d 733 
(1965);Wisconsin
 v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 
(1972).

From Yoder:

[T]o have the protection of the Religion Clauses, the claims must be rooted in 
religious belief. Although a determination of what is a ‘religious' belief or 
practice entitled to constitutional protection may present a most delicate 
question,6
 the very concept of ordered liberty precludes allowing every person to make 
his own standards on matters of conduct in which society as a whole has 
important interests. Thus, if the Amish asserted their claims because of their 
subjective evaluation and rejection of the contemporary secular values accepted 
by the majority, much as Thoreau rejected the social values of his time and 
isolated himself at Walden Pond, their claims would not rest on a religious 
basis. Thoreau's choice was philosophical and personal rather than religious, 
and such belief does not rise to the demands of the Religion Clauses.

On Tue, Jun 28, 2016 at 11:52 AM, Conkle, Daniel O. 
> wrote:
I don’t think this is obviously so, Marty.  Lukumi didn’t present this question 
because a narrow sense of religion was clearly at issue.  I think the 
constitutional definition of religion remains an open question, and the 
resolution of that question could bear on the proper application of the Lukumi 
analysis as to deliberate targeting as well as general applicability.

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 Marty Lederman
Sent: Tuesday, June 28, 2016 11:44 AM

To: Law & Religion issues for Law Academics
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

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. 
> 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 & 

RE: Cert. Petition Filed in Pharmacy Free Exercise Case

[Volokh, Eugene]

   I agree with Marty that this seems pretty dispositive.  My one 
question (a real one, not a Socratic one) is this:  What does the citation to 
Seeger in Frazee mean?  I assume it’s referring to this passage from Seeger:

We have concluded that Congress, in using the expression "Supreme Being" rather 
than the designation "God," was merely clarifying the meaning of religious 
training and belief so as to embrace all religions and to exclude essentially 
political, sociological, or philosophical views. We believe that under this 
construction, the test of belief "in a relation to a Supreme Being" is whether 
a given belief that is sincere and meaningful occupies a place in the life of 
its possessor parallel to that filled by the orthodox belief in God of one who 
clearly qualifies for the exemption. Where such beliefs have parallel positions 
in the lives of their respective holders we cannot say that one is "in a 
relation to a Supreme Being" and the other is not. We have concluded that the 
beliefs of the objectors in these cases meet these criteria, and, accordingly, 
we affirm the judgments in Nos. 50 and 51 and reverse the judgment in No. 29.

Likewise, later in Seeger, the Court says “Within that phrase would come all 
sincere religious beliefs which are based upon a power or being, or upon a 
faith, to which all else is subordinate or upon which all else is ultimately 
dependent” (emphasis added).  Given this, what counts as the “purely secular 
views” that Frazee is rejecting?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, June 28, 2016 12:08 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

From Frazee:

There is no doubt that “[o]nly beliefs rooted in religion are protected by the 
Free Exercise Clause,” Thomas, supra, 450 U.S., at 713, 101 S.Ct., at 
1430.
 Purely secular views do not suffice. United States v. Seeger, 380 U.S. 163, 85 
S.Ct. 850, 13 L.Ed.2d 733 
(1965);Wisconsin
 v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 
(1972).

From Yoder:

[T]o have the protection of the Religion Clauses, the claims must be rooted in 
religious belief. Although a determination of what is a ‘religious' belief or 
practice entitled to constitutional protection may present a most delicate 
question,6
 the very concept of ordered liberty precludes allowing every person to make 
his own standards on matters of conduct in which society as a whole has 
important interests. Thus, if the Amish asserted their claims because of their 
subjective evaluation and rejection of the contemporary secular values accepted 
by the majority, much as Thoreau rejected the social values of his time and 
isolated himself at Walden Pond, their claims would not rest on a religious 
basis. Thoreau's choice was philosophical and personal rather than religious, 
and such belief does not rise to the demands of the Religion Clauses.

On Tue, Jun 28, 2016 at 11:52 AM, Conkle, Daniel O. 
> wrote:
I don’t think this is obviously so, Marty.  Lukumi didn’t present this question 
because a narrow sense of religion was clearly at issue.  I think the 
constitutional definition of religion remains an open question, and the 
resolution of that question could bear on the proper application of the Lukumi 
analysis as to deliberate targeting as well as general applicability.

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 Marty Lederman
Sent: Tuesday, June 28, 2016 11:44 AM

To: Law & Religion issues for Law Academics
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

Seeger provides 

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

>From Frazee:

There is no doubt that “[o]nly beliefs rooted in religion are protected by
the Free Exercise Clause,” *Thomas, supra,* 450 U.S., at 713, 101 S.Ct., at
1430.

Purely
secular views do not suffice. *United States v. Seeger,* 380 U.S. 163, 85
S.Ct. 850, 13 L.Ed.2d 733 (1965)

;*Wisconsin v. Yoder,* 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32
L.Ed.2d 15 (1972)

.

>From Yoder:


[T]o have the protection of the Religion Clauses, the claims must be rooted
in religious belief. Although a determination of what is a ‘religious'
belief or practice entitled to constitutional protection may present a most
delicate question,6

the
very concept of ordered liberty precludes allowing every person to make his
own standards on matters of conduct in which society as a whole has
important interests. Thus, if the Amish asserted their claims because of
their subjective evaluation and rejection of the contemporary secular
values accepted by the majority, much as Thoreau rejected the social values
of his time and isolated himself at Walden Pond, their claims would not
rest on a religious basis. Thoreau's choice was philosophical and personal
rather than religious, and such belief does not rise to the demands of the
Religion Clauses.


On Tue, Jun 28, 2016 at 11:52 AM, Conkle, Daniel O. 
wrote:

> I don’t think this is obviously so, Marty.  Lukumi didn’t present this
> question because a narrow sense of religion was clearly at issue.  I think
> the constitutional definition of religion remains an open question, and the
> resolution of that question could bear on the proper application of the
> Lukumi analysis as to deliberate targeting as well as general applicability.
>
>
>
> 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 *Marty Lederman
> *Sent:* Tuesday, June 28, 2016 11:44 AM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Cert. Petition Filed in Pharmacy Free Exercise Case
>
>
>
> *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. 
> 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 

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

"[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 
> *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

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[James Oleske]

Dan -- I agree that Lukumi did not answer this question directly, but
didn't Yoder? Here's what the Court said about the issue there:

"A way of life, however virtuous and admirable, may not be interposed as a
barrier to reasonable state regulation of education if it is based on
purely secular considerations; to have the protection of the Religion
Clauses, the claims must be rooted in religious belief. Although a
determination of what is a 'religious' belief or practice entitled to
constitutional protection may present a most delicate question, the very
concept of ordered liberty precludes allowing every person to make his own
standards on matters of conduct in which society as a whole has important
interests. Thus, if the Amish asserted their claims because of their
subjective evaluation and rejection of the contemporary secular values
accepted by the majority, much as Thoreau rejected the social values of his
time and isolated himself at Walden Pond, their claims would not rest on a
religious basis. Thoreau's choice was philosophical and personal, rather
than religious, and such belief does not rise to the demands of the
Religion Clauses."

- Jim

On Tue, Jun 28, 2016 at 8:52 AM, Conkle, Daniel O. 
wrote:

> I don’t think this is obviously so, Marty.  Lukumi didn’t present this
> question because a narrow sense of religion was clearly at issue.  I think
> the constitutional definition of religion remains an open question, and the
> resolution of that question could bear on the proper application of the
> Lukumi analysis as to deliberate targeting as well as general applicability.
>
>
>
> 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 *Marty Lederman
> *Sent:* Tuesday, June 28, 2016 11:44 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Cert. Petition Filed in Pharmacy Free Exercise Case
>
>
>
> *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. 
> 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
>
> 
>
>
>
___
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RE: Cert. Petition Filed in Pharmacy Free Exercise Case

[Laycock, H Douglas (hdl5c)]

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 
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 
> 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 

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

*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. 
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 
> 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 
> 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  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 

RE: Cert. Petition Filed in Pharmacy Free Exercise Case

[Conkle, Daniel O.]

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 
> 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 
> 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 
> 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 
> wrote:
On Monday, 

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[James Oleske]

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 
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 
> 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  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 
>>> 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
 

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

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 
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  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  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 

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

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  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  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 
>> 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