The Supreme Court denied certiorari yesterday in Stormans, Inc. v. Wiesman, which could have been its most important Free Exercise case in almost twenty years.
The Stormans family owns a small family pharmacy in Olympia, Washington. In keeping with their Christian beliefs, the Stormans’ pharmacy does not stock or sell drugs that prevent the implantation of a fertilized egg, thereby causing what the Stormans believe to be an early abortion.
The State of Washington passed regulations that outlawed the Stormans’ practice of referring customers seeking potentially-abortifacient drugs (even though the state Washington stipulated that such referrals do not pose a risk to patient’s timely access to medications; more than 30 other pharmacies within five miles stock these drugs.) The district court enjoined Washington’s regulations, which allowed for many types of secular referrals and banned only religious ones, but the Ninth Circuit reversed. So the Stormans asked the Supreme Court to take the case. The Stormans were supported by fourteen amicus briefs, including one filed by 38 national and states pharmacists’ associations.
Yesterday, the Supreme Court denied that petition over one of the most compelling dissents from denial of certiorari in recent memory. Justice Samuel Alito, writing for himself, Chief Justice John Roberts, and Justice Clarence Thomas, sums up Washington’s rule: “Violate your sincerely held religious beliefs or get out of the pharmacy business.” He lamented that the Court did not deem such an important issue “worthy of our time” and noted that if “this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”
They surely do because the Stormans’ case was exceptionally strong and—as Justice Alito noted—striking in its similarity to the unanimous 1993 decision in Church of Lukumi Babalu Aye v. City of Hialeah. The Stormans presented ample evidence of discriminatory intent on Washington’s part, including a statement Justice Alito quoted by a primary drafter of the rule that the state’s object was “to draft language to allow facilitating a referral for only … non-moral or non-religious reasons.” Even putting intent aside, Justice Alito detailed Washington’s allowance of “broad secular exceptions” to its rule, including allowing pharmacies not to stock drugs simply because they “require additional paperwork or patient monitoring, has a short shelf life, [or] may attract crime.” And, even if a pharmacy stocks a drug, Justice Alito explained that Washington allows it not to fill a patient’s prescription because “it does not accept the patient’s insurance or because it does not accept Medicaid or Medicare.” But no exceptions for those with “religious or moral objections” are allowed. Moreover, Justice Alito noted that despite “[s]ecular refusals [being] common, and commonly known, both before and after” the new rule, Washington “never enforced its regulations against such practices” and chose instead to “specifically target religious objections.”
Despite all of this evidence, as Justice Alito put it, “exhibiting hostility toward religious objections” and no others, the Supreme Court denied review. That decision will leave many wondering: if Stormans can’t attract four Justices’ attention, what can? Perhaps the Court’s decision next term in Trinity Lutheran Church of Columbia, Inc. v. Pauley will provide a clue.
Until then, the Court’s reluctance to enforce the Free Exercise Clause will have a devastating impact on the Stormans family. They and others like them who, as Justice Alito put it, hold “religious beliefs that do not accord with the views of those holding the levers of government power,” are increasingly at risk in a society that does not tolerate diversity of opinion or dissent. And that is something that should trouble all Americans of goodwill because if “Washington’s novel and concededly unnecessary burden on religious objectors” may stand, so may any other gratuitous “trampl[ing] on fundamental rights.”
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Rory Gray serves as legal counsel with Alliance Defending Freedom, the legal advocacy organization representing the Stormans family.