Re: Cert. Petition Filed in Pharmacy Free Exercise Case
ong and >>> relisted so many times. And of course I like the Alito dissent. But I have >>> to say that his footnote 6 is utterly shameless in light of his dissent >>> yesterday in *Woman’s Whole Health*. He says that of course Stormans >>> can bring “a future as-applied challenge to the Board’s regulations.” But >>> yesterday, a much less thorough litigation of a pre-enforcement challenge >>> was obviously res judicata in a post-enforcement challenge based on actual >>> experience. It is hard to see how he can have it both ways. >>> >>> >>> >>> Douglas Laycock >>> >>> Robert E. Scott Distinguished Professor of Law >>> >>> University of Virginia Law School >>> >>> 580 Massie Road >>> >>> Charlottesville, VA 22903 >>> >>> 434-243-8546 >>> >>> >>> >>> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske >>> *Sent:* Tuesday, June 28, 2016 11:28 AM >>> *To:* Law & Religion issues for Law Academics < >>> religionlaw@lists.ucla.edu> >>> *Subject:* Re: Cert. Petition Filed in Pharmacy Free Exercise Case >>> >>> >>> >>> The bulk of Justice Alito's dissent focuses on the argument Stormans >>> made at the beginning of its cert petition in support of summary reversal: >>> the pharmacy regulations amount to religious targeting akin to the >>> targeting in Lukumi. (Marty notes below the central problem with this >>> argument: the regulations actually cover all moral and ethical objections, >>> not just religious objections. Thus, the pharmacy owner who has secular >>> ethical objections to carrying drugs tested on animals or produced in >>> countries with records of human rights abuses is no more entitled to an >>> exemption under the regulations than are the owners of Stormans.) >>> >>> >>> >>> Notwithstanding the dissent's primary focus on the religious-targeting >>> argument, there is one section of the dissent (III.B) indicating how the >>> three dissenting justices might come down on the broader >>> "selective-exemption" issue that has split the circuits: whether, in the >>> absence of a religious targeting, the inclusion of one or more secular >>> exemptions in a law triggers a constitutional requirement that religious >>> exemptions be made when requested. Section III.B. of the dissent indicates >>> that three justices believe the answer is "yes" if the religious exemptions >>> would not undermine the state's interest in the law more than the existing >>> exemptions. >>> >>> >>> >>> - Jim >>> >>> >>> >>> >>> >>> On Tue, Jun 28, 2016 at 7:20 AM, Marty Lederman < >>> lederman.ma...@gmail.com> wrote: >>> >>> This case is *very *confused, and complicated, as a factual matter, by >>> virtue of the interactions of two different Washington regulations--the >>> "Stocking" rule and the "Delivery" rule--and the fact that the State has >>> not enforced either rule against Storman's or any other religious >>> objector. For what it's worth, I believe Alito's description of the >>> facts--his treatment of the distinct operations of, and practices under, >>> the two rules--is incomplete and misleading, for reasons I'd be happy to >>> discuss offline. But that's really beside the point now that the Court has >>> denied cert. (It would have created a nightmare of untangling had they >>> granted cert.) >>> >>> >>> >>> For now, I would just point out the following: Even on Alito's own >>> account of the facts and the Washington regulations, the State does not >>> "uniquely burden religiously motivated conduct." This is the telling >>> passage in his dissent: >>> >>> >>> >>> While the regulations themselves do not expressly single out *religiously >>> motivated* referrals, the Board’s guidance accompanying the regulations >>> does: “The rule,” it warns, “does not allow a pharmacy to refer a patient >>> to another pharmacy to avoid filling the prescription *due to moral or >>> ethical objections*.” SER 1248 (emphasis added). >>> >>> >>> >>> Religious objections to contraception, in other words, are not &q
Re: Cert. Petition Filed in Pharmacy Free Exercise Case
rmans 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 >> would n
RE: Cert. Petition Filed in Pharmacy Free Exercise Case
The Stocking Rule requires a pharmacy “to maintain at all times a representative assortment of drugs in order to meet the pharmaceutical needs of its patients.” “Representative assortment” is not defined or explained, but it plainly connotes a sample, not the physically impossible requirement of stocking all drugs approved for human use. And in its forty-year history, the Stocking Rule has never been enforced against anybody. When the Pharmacy Commission inspects pharmacies, it checks for many things, but not for compliance with the Stocking Rule. Throughout the litigation in the lower courts, there were administrative complaints against Stormans pending the with Commission. If and when the Commission finally acts on one of those complaints and penalizes Stormans, that part of the case will be more ripe. But the intention not to interfere with any business reasons for stocking drugs will look no different – it will still depend on the drafting history of the regs and the complete lack of enforcement action against anyone else. 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 Marty Lederman Sent: Tuesday, June 28, 2016 12:13 PM To: Law & Religion issues for Law Academics Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case "[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) mailto: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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscrib
RE: Cert. Petition Filed in Pharmacy Free Exercise Case
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<mailto: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> [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' mailto:religionlaw@lists.ucla.edu>> 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<mailto:con...@indiana.edu> From: religionlaw-boun...@lists.ucla.edu<mailto: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. mailto:con...@indiana.edu>> wrote: With respect to the issue of religious as opposed to other moral and ethical objections: Does it matter for purposes of the Lukumi analysis whether religious exercise, as protected by the Free Exercise Clause, is defined narrowly and traditionally or, instead, is defined broadly enough to include the exercise of moral and ethical beliefs that are comparable to traditionally religious beliefs? Cf. Seeger. Dan Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu<mailto:con...@indiana.edu> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf
RE: Cert. Petition Filed in Pharmacy Free Exercise Case
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 mailto:l...@wayne.edu>> 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> [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 mailto:religionlaw@lists.ucla.edu>> 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.<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981114889&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&fi=co_pp_sp_708_1430&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_708_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)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1965125037&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)>;Wisconsin v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972127114&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&fi=co_pp_sp_708_1533&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_708_1533>. 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<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972127114&pubNum=708&originatingDoc=Ic1dba6f29c1e11d991d0cc6b54f12d4d&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)#co_footnote_B00761972127114> 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. mailto:con...@indiana.edu>> 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 thi
RE: Cert. Petition Filed in Pharmacy Free Exercise Case
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<mailto: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 mailto:l...@wayne.edu>> 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> [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 mailto:religionlaw@lists.ucla.edu>> 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.<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981114889&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&fi=co_pp_sp_708_1430&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_708_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)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1965125037&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)>;Wisconsin v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972127114&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&fi=co_pp_sp_708_1533&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_708_1533>. 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<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972127114&pubNum=708&originatingDoc=Ic1dba6f29c1e11d991d0cc6b54f12d4d&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)#co_footnote_B00761972127114> 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. mailto:con...@indiana.edu>> 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) 855-43
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 > > 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
RE: Cert. Petition Filed in Pharmacy Free Exercise Case
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.<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981114889&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&fi=co_pp_sp_708_1430&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_708_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)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1965125037&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)>;Wisconsin v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972127114&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&fi=co_pp_sp_708_1533&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_708_1533>. 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<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972127114&pubNum=708&originatingDoc=Ic1dba6f29c1e11d991d0cc6b54f12d4d&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)#co_footnote_B00761972127114> 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. mailto:con...@indiana.edu>> 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<mailto:con...@indiana.edu> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto: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. mailto:con...@indiana.edu>> wrote: With respect to the issue of religious as opposed to other moral and ethical objections: Does it matter for purposes of the Lukumi analysis whether religious exercise, as protected by the Free Exercise Clause, is defined narrowly and traditionally or, instead, is defined broadly enough to include the exercise of moral and ethical beliefs that are comparable to traditionally religious beliefs? Cf. Seeger. Dan Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 4740
RE: Cert. Petition Filed in Pharmacy Free Exercise Case
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.<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981114889&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&fi=co_pp_sp_708_1430&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_708_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)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1965125037&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)>;Wisconsin v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972127114&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&fi=co_pp_sp_708_1533&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_708_1533>. 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<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972127114&pubNum=708&originatingDoc=Ic1dba6f29c1e11d991d0cc6b54f12d4d&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)#co_footnote_B00761972127114> 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. mailto:con...@indiana.edu>> 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<
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. <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981114889&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&fi=co_pp_sp_708_1430&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_708_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) <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1965125037&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)> ;*Wisconsin v. Yoder,* 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972) <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972127114&pubNum=708&originatingDoc=Ic1e2d2da9c1e11d991d0cc6b54f12d4d&refType=RP&fi=co_pp_sp_708_1533&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_708_1533> . >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 <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972127114&pubNum=708&originatingDoc=Ic1dba6f29c1e11d991d0cc6b54f12d4d&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)#co_footnote_B00761972127114> 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 i
Re: Cert. Petition Filed in Pharmacy Free Exercise Case
"[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 inclus
Re: Cert. Petition Filed in Pharmacy Free Exercise Case
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 > > > > > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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<mailto:con...@indiana.edu> From: religionlaw-boun...@lists.ucla.edu<mailto: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. mailto:con...@indiana.edu>> wrote: With respect to the issue of religious as opposed to other moral and ethical objections: Does it matter for purposes of the Lukumi analysis whether religious exercise, as protected by the Free Exercise Clause, is defined narrowly and traditionally or, instead, is defined broadly enough to include the exercise of moral and ethical beliefs that are comparable to traditionally religious beliefs? Cf. Seeger. Dan Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu<mailto:con...@indiana.edu> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto: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
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<mailto: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. mailto:con...@indiana.edu>> wrote: With respect to the issue of religious as opposed to other moral and ethical objections: Does it matter for purposes of the Lukumi analysis whether religious exercise, as protected by the Free Exercise Clause, is defined narrowly and traditionally or, instead, is defined broadly enough to include the exercise of moral and ethical beliefs that are comparable to traditionally religious beliefs? Cf. Seeger. Dan Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu<mailto:con...@indiana.edu> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto: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 mailto:lederman.ma...@gmail.com>> wrote: This case is very confused, and complicated, as a factual matter, by virtue of the interactions of two different Washington regulations--the "Stocking" rule and the "Delivery" rule--and the fact that the State has not enforced either rule against Storman's or any other religious objector. For what it's worth, I believe Alito's description of the facts--his treatment of the distinct operations of, and practices under, the two rules--is incomplete and misleading, for reasons I'd be happy to discuss offline. But that's really beside the point now that the Court has denied cert. (It would have created a nightmare of untangling had they granted cert.) For now, I would just point out the following: Even on Alito's own account of the facts and the Washington regulations, the State does not "uniquely burden religiously motivated conduct." This is the telling passage in his dissent: While the regulations themselves do not expressly single out religiously motivated referrals, the Board’s guidance accompanying the regulations does: “The rule,” it warns, “does not allow a pharmacy to refer
RE: Cert. Petition Filed in Pharmacy Free Exercise Case
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 mailto:lederman.ma...@gmail.com>> wrote: This case is very confused, and complicated, as a factual matter, by virtue of the interactions of two different Washington regulations--the "Stocking" rule and the "Delivery" rule--and the fact that the State has not enforced either rule against Storman's or any other religious objector. For what it's worth, I believe Alito's description of the facts--his treatment of the distinct operations of, and practices under, the two rules--is incomplete and misleading, for reasons I'd be happy to discuss offline. But that's really beside the point now that the Court has denied cert. (It would have created a nightmare of untangling had they granted cert.) For now, I would just point out the following: Even on Alito's own account of the facts and the Washington regulations, the State does not "uniquely burden religiously motivated conduct." This is the telling passage in his dissent: While the regulations themselves do not expressly single out religiously motivated referrals, the Board’s guidance accompanying the regulations does: “The rule,” it warns, “d
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 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,
RE: Cert. Petition Filed in Pharmacy Free Exercise Case
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 mailto:lederman.ma...@gmail.com>> wrote: This case is very confused, and complicated, as a factual matter, by virtue of the interactions of two different Washington regulations--the "Stocking" rule and the "Delivery" rule--and the fact that the State has not enforced either rule against Storman's or any other religious objector. For what it's worth, I believe Alito's description of the facts--his treatment of the distinct operations of, and practices under, the two rules--is incomplete and misleading, for reasons I'd be happy to discuss offline. But that's really beside the point now that the Court has denied cert. (It would have created a nightmare of untangling had they granted cert.) For now, I would just point out the following: Even on Alito's own account of the facts and the Washington regulations, the State does not "uniquely burden religiously motivated conduct." This is the telling passage in his dissent: While the regulations themselves do not expressly single out religiously motivated referrals, the Board’s guidance accompanying the regulations does: “The rule,” it warns, “does not allow a pharmacy to refer a patient to another pharmacy to avoid filling the prescription due to moral or ethical objections.” SER 1248 (emphasis added). Religious objections to contraception, in other words, are not "uniquely burdened," even on Alito's view of the case; instead, they are--at worst--treated exactly the same as other "moral or ethical objections." On Tue, Jun 28, 2016 at 9:43 AM, Marty Lederman mailto:lederman.ma...@gmail.com>> wrote: 15-page Alito dissent from denial, joined by Roberts and Thomas: http://www.supremecourt.gov/orders/courtorders/062816zr_29m1.pdf On Thu, Jun 2, 2016 at 1:20 AM, James Oleske mailto:jole...@lclark.edu>> wrote: A quick update on the petition in Stormans. After the petition was relisted for conference several times, the lower court record was requested on May 19 and received on May 26, and the petition is back on the schedule for tomorrow's conference (June 2). As I've said before, I think some of the legal arguments made in the petition are cert worthy. But the Ninth Circuit decided the case by rejecting a factual predicate for those arguments -- a predicate that was central to the district court's decision in favor of Stormans. Which might explain the record request. In any event, if cert is granted, this has the makings of a landmark free exercise case. - Jim On Mon, Jan 4, 2016 at 11:34 PM,
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, 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 heig
Re: Cert. Petition Filed in Pharmacy Free Exercise Case
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 motivated violations of laws must be excused >>> anytime the government
Re: Cert. Petition Filed in Pharmacy Free Exercise Case
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 reasons (e.g., lack of specialized >>> equipment to make drug
Re: Cert. Petition Filed in Pharmacy Free Exercise Case
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 reasons (e.g., lack of specialized >> equipment to make drug; drug out of stock; payment-type not accepted), and >> gives the state some discretion in applying those exemptions, it is not >> neutral and generally applicable, and must include an exemption allowing >> pharmacies to refuse to dispense drugs for religious reasons unless the >> state
