Sadly, earlier this week, the Supreme Court declined to take up the case of Stormans v. Wiesman.
In declining to hear this case, the Court missed an opportunity to shore up individual freedom and rebuke baseless government harassment of religious believers.
The Stormans owned a pharmacy and did not want to dispense certain drugs that can kill embryos due to their moral and religious beliefs, yet are happy to refer potential customers to other pharmacies who could dispense them. The drugs are carried by more than 30 other pharmacies within five miles of the Stormans’ pharmacy. It seems like there’s a way in this case for conscience to be honored, and the customer to receive their drugs.
Unfortunately, Washington State had put in place regulations barring pharmacies from referring customers elsewhere for religious or moral reasons, despite permitting them to do so for a host of secular reasons.
These regulations were challenged as a violation of the Free Exercise Clause due to their targeting of religious beliefs. The Supreme Court had an opportunity to hear the case, yet unfortunately declined. Justice Alito (joined by Chief Justice Roberts and Justice Thomas) dissented from this denial of certiorari.
As Justice Alito observed in his dissent, “none of [the Stormans’] customers has ever been denied timely access to emergency contraceptives.” At the end of the day, the only reason for this law is to disparage the moral objections of those who think differently and force these unwilling pharmacists to play a part in the government’s imposed regime by steamrolling their individual freedom. And now, in permitting a lower court decision against the Stormans to stand, Justices Kennedy, Breyer, Sotomayor, Kagan, and Ginsburg apparently see no problem with letting the state of Washington squash religious freedom by barring referrals tied to religious reasons but permitting them for non-religious reasons.
Now, as Justice Alito put it, the price we must pay is the continued existence of “regulations [which] are improperly designed to stamp out religious objectors.” This price may be acceptable to some for now—at least until it is turned around and applied against them.eyer, Sotomayor, Kagan, and Ginsburg apparently see no problem with letting the state of Washington squash on religious conscience by barring referrals tied to religious reasons but permitting them for non-religious reasons.
In denying a hearing to this case, the Court missed an opportunity to protect conscience in the face of baseless and illegitimate government targeting of religion. Yet the Court felt it important to address similar issues just last year. When a Muslim prisoner wasn’t allowed to a grow a beard for religious reasons, the Supreme Court unanimously found that under a RFRA-type standard the government couldn’t permit non-religious exceptions for beards while denying religious ones. In that case, such an inconsistency on the part of the government showed its policy was not properly tailored toward a legitimate goal of safety and security. If safety and security could be achieved with the non-religious exceptions, a religious exception must be permitted as well.
Similarly, as Justice Alito points out in his dissent from denial of certiorari in Stormans, the Court’s own Free Exercise precedent in Church of Lukumi Babalu Aye, Inc. v. Hialeah holds that regulations which are gerrymandered to target religious exercise are unconstitutional. Yet Justice Kennedy, who authored that opinion, did not side with Justice Alito here. Why the inconsistency?
While the Court has many reasons for what it does, it doesn’t escape notice that Church of Lukumi Babablu Aye and Holt (both unanimous decisions) both contain claims by members of minority religions. Notably, the so-called “conservative” members of the Court happily upheld religious rights in those instances. They would be consistent and also do so here when a Christian is discriminated against, while the so-called “liberals” would decline to do so in Stormans and other recent religious rights cases involving the consciences of Christians. While it is impossible to precisely state the reasons for these developments, the pattern is certainly troubling. And if such a pattern of so-called “conservative” rulings caught the eye of liberal activists, you could be sure they’d point it out.
Such developments, along with others in recent free exercise and RFRA jurisprudence, increasingly show a Court which now picks and chooses what rights to uphold based on ideology, politics, and the religion at issue, instead of being a neutral arbiter of law. As Justice Thomas exclaimed in his dissent from the Court’s opinion in Whole Woman’s Health v. Hellerstedt (a case which struck down state abortion health and safety requirements, and which confirms the Court’s increased arbitrariness) just the other day, “[t]he Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.”
The price to be paid for preferring policy over law is, as Justice Alito put it in his Stormans dissent, the continued existence of “regulations [which] are improperly designed to stamp out religious objectors.” This price may be acceptable to some for now—at least until it is turned around and applied against them.