This is probably not worth the candle any longer, but I'd simply emphasize (i) that the plaintiffs did not challenge the stocking rule; (ii) that the agency has not taken any action against Stormans for failing to stock Plan B and ella (not yet, anyway); (iii) that Stormans is a rather unique case in that the pharmacy here *publicly announced *that it would not carry certain drugs (which naturally triggered a complaint that doesn't typically happen when pharmacies simply fail to stock without any such pronouncement); and (iv) that there is no evidence -- not yet, anyway -- that the agency will treat Stormans any differently than it has treated other, similarly situated pharmacies it has investigated for failure to stock.
Look at it from the flip side: If my understanding of the record is correct, if the agency here were to say to Stormans, publicly, that "notwithstanding the stocking rule, which has no exceptions, you may refuse to stock ella and Plan B, even though we have never conferred such an exemption upon any other pharmacy for any reason," then in that case Stormans would be subject to disparate treatment: It would be the first pharmacy in the 50 years of the stocking rule to receive an express exemption from that requirement. Does *Lukumi *require that? On Tue, Jun 28, 2016 at 4:54 PM, Laycock, H Douglas (hdl5c) < hd...@virginia.edu> wrote: > There are extremely detailed findings of fact that conclude exactly what > Steve doubts and Marty appears to deny: pharmacies fail to stock or deliver > drugs, and refer folks elsewhere, for a vast array of reasons. The district > court further found that the Commission had never, ever, interfered with > these practices. > > > > The Ninth Circuit did not say that the district court was wrong about > either of those findings. All it said was that the Commission had not > formally approved the many referrals for business reasons, and that > *maybe* those referrals actually violate the rules, even if those rules > are never enforced against anyone but Stormans, and that if anyone ever > complains about a referral with business motivations, *maybe* the > Commission will do something about it. > > > > We are now 26 years since *Employment Division v. Smith* made the concept > of generally applicable law central to the Free Exercise Clause. And we > still don’t know what that concept means. The issue is clearly cert worthy, > even if the Court did not want to confront it short handed, and even if the > Pharmacy Commission’s dodge of not actually writing down the rules it does > and does not enforce muddied the record here. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Steven Green > *Sent:* Tuesday, June 28, 2016 4:39 PM > *To:* Law & Religion issues for Law Academics <Religionlaw@lists.ucla.edu> > *Subject:* stocking rule > > > > In follow-up to Marty's comments, isn't comparison to the business > stocking rule a red herring? As many have pointed out, pharmacies have > many reasons not to carry every drug: supply and demand; availability; > storage space, etc. Based on my personal experience and in having a child > with a special need, pharmacies are always willing, if not eager for the $, > to order a drug they don't carry. So by not carrying a drug they are not > "refusing" to do so in the same manner as in Stormans. So is it accurate > to say that pharmacies receive an exemption for business reasons that they > wouldn't for religious reasons? > > Steve > > > -- > > Steven K. Green, J.D., Ph.D. > Fred H. Paulus Professor of Law and Director > Center for Religion, Law and Democracy > Willamette University > 900 State St., S.E. > Salem, Oregon 97301 > 503-370-6732 > > _______________________________________________ > 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. >
_______________________________________________ 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.
