Religious Liberty on Trial in Washington State
Can the government force individuals to choose between their religious beliefs and their right to earn a living? That's the question in a case coming up in federal court in Washington State. In Stormans, Inc. v. Selecky, owners of a family pharmacy, called Ralph’s, in Olympia, and two individual pharmacists, Rhonda Mesler and Margo Thelen, are challenging regulations that require them to dispense the drug Plan B.
As Ed Whelan reports at NRO,
Plan B is intended to be taken following intercourse by a woman or girl who wants to avoid becoming pregnant. According to its manufacturer, Plan B can operate either to prevent conception (i.e., in a genuinely contraceptive manner) or to prevent implantation of an already fertilized egg (i.e., as an abortifacient*).
The pharmacy owners and the two individual pharmacists are Christians whose religious beliefs forbid them from participating in the destruction of an unborn human life. They believe that dispensing Plan B constitutes direct participation in the destruction of human life.
Ralph’s does not stock Plan B. When customers asked for it, they used to refer them to other nearby pharmacies. In 2007, however, Washington State adopted regulations that require pharmacies to stock and distribute Plan B – and forbids them from referring customers to other pharmacies. Sadly, Washington State is not unique. Other States are using the same coercive techniques to force pharmacists to violate their religious beliefs on pain of losing their license.
Under the Supreme Court’s misbegotten 1990 decision in Employment Division v. Smith, the right to “free exercise” of religion must yield to “neutral and generally applicable” laws. That decision made it easier than ever for States to force doctors, nurses, and pharmacists to participate in abortion and other procedures that violate their beliefs. This case will test the limits of the Smith decision.
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Aug '10
Re: Religious Liberty on Trial in Washington State
Rick Perry is right that free exercise of religion should take priority over freedom to be open about our sexual orientation. I'd like to live in a society in which people are free in both ways, but the first is far more important.
Jul '11
Re: Religious Liberty on Trial in Washington State
Does Plan A exist and is their any common sense in it for surely there is none here.
Perhaps the husband and wife could convert to Islam and get a better ruling from the courts.
It is truly sad to see government regulations of a private business stoop to such a low but this has been going on for quite a while in many states not only in the pharmacy business but also in insurance offered by Catholic health care entities.
Nov '11
Re: Religious Liberty on Trial in Washington State
Better to insist on commercial freedom for everyone to sell what they want to sell, rather than cede that the state can dictate a store's inventory and then try to whittle out a (dubious IMO) claim from the First Amendment. I don't think that this couple should be forced to sell something they find morally objectionable, but limiting that concession to religious qualms smacks of special pleading. Freedom of conscience for everybody :) !
Oct '10
Re: Religious Liberty on Trial in Washington State
I believe that this is an example of the foolishness of social conservatism. Of course there is no aggressive action by the state against religious conservatives. It is all an illusion. Fiscal conservatism is popular and the only way to win. Don't worry about state coercion against religion... it's simply not happening.
Move along now, nothing to see here.
Dec '10
Re: Religious Liberty on Trial in Washington State
Yet another reason why I still refer to Texas as my state and Washington as where I live.
May '10
Re: Religious Liberty on Trial in Washington State
One can believe human life begins at conception without religion. This is not just an issue of religious freedom.
If someone tried to force me to participate in murder, no threat would be sufficient to persuade me. The tougher decision is determing what to do when a fellow citizen is put out of business, or worse, for refusing to participate in murder.
Dec '10
Re: Religious Liberty on Trial in Washington State
Part I
"The Free Exercise Clause" is more accurately "The Second Phrase of the First Clause of the First Enumerated Amendment". "The Establishment Clause" is more accurately the "First Phrase of the First Clause of the First Enumerated Amendment". Both Phrases are about Religion. Thus, I think that the "First Clause of the First Enumerated Amendment to the United States Constitiution" should be referred to as "The Freedom of Religion Clause". Now that I have improved our nomenclature, let's proceed to the meaning. It is obvious to me that the intention of the Framers in "The Freedom of Religion Clause" is two-fold. (Cont.)
Dec '10
Re: Religious Liberty on Trial in Washington State
Part II
First, since "The Freedom of Religion Clause" is the first clause of the first enumerated amendment, the Framers are giving it primacy. If you know the history of the Renaissance-Reformation-Enlightenment then you would expect this. It is where Western Civilization as a whole needed most help in the area of Rights. Religion is therefore first mentioned and of maximum import. How this plays out remains beyond this discussion.
Second, the American Constitution is after all the American Constitution and the second intention of the Framers is a very American theme in the Constitution as a whole. The intention of the Framers thru the Constitution as a whole was expressly to create a system of checks and balances which could stand the stresses of a vigorous republican democratic society. Seeing "The Religion Clause" as two joined Phrases reveals this intention of the Framers. The Establishment Phrase keeps Religion from overwhelming society with a monolithic Religious state. The Exercise Phrase is designed to balance the first Phrase by keeping Secularity from overwhelming society with a monolithic Secular state. More then this is again beyond this discussion. (Cont.)
Edited on December 14, 2011 at 2:04amDec '10
Re: Religious Liberty on Trial in Washington State
Part III
From the above point of view (my own original thought and firmly held belief) this case is extremely important. Adam there is a great deal at stake here. This runs even deeper then the mandate. One might even conclude that this is the root issue and the mandate is a derivative issue of this one. Raycon is a wise older gentleman. He knows the political minefield that we are in. However, this is too fundemental for me to keep quiet. There are some fights you must fight whether it's prudent politically or not. I can not triangulate on this one. Adam, please stay with this and help us follow it. Thanks.
Re: Religious Liberty on Trial in Washington State
I have to disagree, respectfully, with raycon. First, there is state coercion, from Massachusetts putting Catholic charities out of the adoption business to Obama weakening conscience rights for healthcare workers who object to abortion. Secondly, even assuming that fiscal policies are the way to win elections, I wouldn't conclude that we here should talk about nothing but fiscal policy for the next 12 months. I do agree that state licensing schemes restrict commercial freedom more broadly than religion, but religion has a special protection in the bill of rights and you have to pick your battles.
Oct '10
Re: Religious Liberty on Trial in Washington State
Adam, forgive me for being a bit obtuse. My comment about fiscal conservatism was intended to amplify the issue with cynicism.
The battleground is very much the social issues, and the stateist bullies are hard at it.
The fiscal issues are important, but the balancing of our budget will mean little, if America as a civilization, fails.
Apr '11
Re: Religious Liberty on Trial in Washington State
Why did the Pharmacists not tell the state that the Plan B they had at one point went out of date and refuse to stock it as it represented a sure fire way to lose money? That way they are acting in the public interest by preventing someone from receiving expired medication.
Dec '10
Re: Religious Liberty on Trial in Washington State
Adam, you are very correct to point out the major dangers across the health care industry. As Obamacare is a 2600 page dark ocean of stupidity waiting to destroy the economy. This issue brings to mind a dark ocean of amorality waiting to destroy...I once, as a joke, called it the 'ethosystem'. Maybe it's no joke any more. Human Life is the measure of all Moral Systems. We play fast and loose with it at our peril. Let's stay on this.
Sep '10
Re: Religious Liberty on Trial in Washington State
I'm going to be watching this with great interest. Thanks Adam.
Apr '11
Re: Religious Liberty on Trial in Washington State
Aaron Miller: One can believe human life begins at conception without religion. This is not just an issue of religious freedom.
If someone tried to force me to participate in murder, no threat would be sufficient to persuade me. The tougher decision is determing what to do when a fellow citizen is put out of business, or worse, for refusing to participate in murder. · Dec 13 at 4:53pm
The Free Exercise clause privileges religious practice over non-religious practice. Thus, for example, laws that are unconstitutional because they are aimed at banning Santeria animal sacrifices would be perfectly fine if they were aimed at banning secular recreational animal killings. Can you think of a legal defense for pharmacists who wished to abstain on non-religious grounds? Not being able to recommend another store might be compelled speech, but this seems like weaker grounds and would certainly allow people the right to choose to buy it on the spot rather than traveling to the alternative spot. I bet that there's some price controls in there, too, but States get to do that even in Thomas' and Bork's jurisprudence.
Edited on December 14, 2011 at 8:29amMay '10
Re: Religious Liberty on Trial in Washington State
James Of England
The Free Exercise clause privileges religious practice over non-religious practice. Thus, for example, laws that are unconstitutional because they are aimed at banning Santeria animal sacrifices would be perfectly fine if they were aimed at banning secular recreational animal killings. Can you think of a legal defense for pharmacists who wished to abstain on non-religious grounds? ....
Frankly, I'm not sure why we keep talking about the Constitution. Everybody knows the actual text and context of the Constitution are no longer as relevant to court decisions (let alone legislation) as the philosophical inclinations of individual judges.
I'll leave the legal defense to lawyers like Adam. I have no idea what arguments would satisfy the current Supreme Court judges.
But we should always remember: Any law (even a constitution) is only valid so long as officials are willing to enforce it and citizens are willing to obey it. Laws like this test those boundaries.
What will politicians do when a Christian hospital, rather than a small Mom-and-Pop pharmacy, refuses to comply? Our tyrants are weak but cunning. They will avoid such fights by granting waivers to citizens powerful enough to fight back.
Feb '11
Re: Religious Liberty on Trial in Washington State
You don't want to evade the problem, you have to solve it.
Re: Religious Liberty on Trial in Washington State
raycon
Adam, forgive me for being a bit obtuse. My comment about fiscal conservatism was intended to amplify the issue with cynicism.
The battleground is very much the social issues, and the stateist bullies are hard at it.
The fiscal issues are important, but the balancing of our budget will mean little, if America as a civilization, fails. · Dec 13 at 7:46pm
My apologies - I completely mis-read your comment. Obviously, I need irony supplements. Thanks, raycon.
Apr '11
Re: Religious Liberty on Trial in Washington State
Aaron Miller
Frankly, I'm not sure why we keep talking about the Constitution. Everybody knows the actual text and context of the Constitution are no longer as relevant to court decisions (let alone legislation) as the philosophical inclinations of individual judges.
I'll leave the legal defense to lawyers like Adam. I have no idea what arguments would satisfy the current Supreme Court judges.
But we should always remember: Any law (even a constitution) is only valid so long as officials are willing to enforce it and citizens are willing to obey it. Laws like this test those boundaries.
What will politicians do when a Christian hospital, rather than a small Mom-and-Pop pharmacy, refuses to comply? Our tyrants are weak but cunning. They will avoid such fights by granting waivers to citizens powerful enough to fight back. · Dec 14 at 12:26am
I think that you're overly cynical about the impact of the Constitution. America's fidelity to its Constitution is a central part of American exceptionalism. From gun rights to corporate speech rights to compensation for takings, time and again the Constitution's plain meaning has trumped liberal elite preferences.
Aug '10
Re: Religious Liberty on Trial in Washington State
It has been going on for a while, the case that is in the forefront of my mind is Elane Photography vs the New Mexico Human Rights commission. Volkh's post is here, along with a roundup of other cases from (of all places) NPR.
The problem that I see is the long standing principle of conscientious objection is being destroyed on the basis of political correctness.
They are not content with your aquiesence or even mute refusal to object, but demand our active participation.