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

Thanks, Greg. Will Baude also raised the Pennhurst issue with me offline, and I agree that it provides a very good reason for Stormans not to have brought the state law claim in the federal court lawsuit. That said, given that the Washington constitution has been interpreted to provide broader pro

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

In Pennhurst, the Supreme Court held that the Eleventh Amendment forbids federal courts from awarding injunctive relief against state officials on the basis of state law. This rule did not apply in Merced, where the plaintiffs sued municipal officials. Greg Baylor [Alliance Defending Freedom]

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

Like the plaintiff in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), I believe the owners of Stormans could have brought both (1) a federal free exercise claim, which faced the challenge of getting past the Smith hurdle, and (2) a state free exercise claim under a Sherbert/Yoder-like exemption reg

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

SB 1146 is currently up for consideration at the California State Assembly Judiciary this Thursday. The heading of the bill states, "The Equity in Higher Education Act among other things, prohibits a person from being subjected to discrimination on the basis of specified attributes, including sex,

Re: stocking rule

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

RE: stocking rule

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 wit

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

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

I agree with Marty that there is an interesting and important question lurking in Stormans -- "whether [and when] the FEC requires a religious exemption due to the presence of a single secular exemption, even if religion is not singled out" -- but I'm not sure it's buried quite so far down in the w

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

There might be an interesting and potentially important FEC question potentially lurking in the weeds of *Storman's*, once one strips away the false narrative that the plaintiffs and Alito have saddled it with, and once one realizes that Washington does not "*uniquely* burden religiously motivated

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

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.

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 deser

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 ma

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 wr

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-bo

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 "Supre

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.

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

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 cons

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 men

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 Lu

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 t

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 a

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 inclu

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 regu

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 wh

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