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 <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] On Behalf Of Marty Lederman > Sent: Tuesday, June 28, 2016 12:08 PM > To: Law & Religion issues for Law Academics <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. 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. <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 > ************************************************ > > > > 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. <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 > ************************************************ > > 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 <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 <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 <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, James Oleske <jole...@lclark.edu> 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 > > > > _______________________________________________ > 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. > > _______________________________________________ > 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.
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