Just when you thought the term was over for the Supreme Court, there is more bad news emanating from the strongest branch of government today. The Supreme Court failed to grant cert to a group of pharmacists targeted by an anti-religious mandate on their private business forcing them to sell abortifacients.
As I’ve noted throughout this term, the Supreme Court has spoken as much through its opinions as it has by letting terrible lower court decisions stand without hearing an appeal. The lower courts are even worse than the Supreme Court and are constantly invalidating religious liberty protection laws in red states and upholding anti-religious bigotry in blue states.
At issue in Stormans v. Wiesman is a family grocery and pharmacy store, Ralph's Thriftway, in Olympia, Washington that, in accordance with the owners’ religious beliefs, does not offer the Plan B morning after pill. Thirty other pharmacies within five miles sell that product and employees of Ralph’s refer customers to those other locations if they request morning-after pills. In 2007, the Washington State Pharmacy Commission promulgated a regulation—not even a piece of legislation duly passed by the legislature—forcing Ralph's Thriftway and other religious pharmacies to sell the drug, even though there was no evidence that a single woman in the entire state of Washington had been denied timely access to any drug because of a referral based on conscience. The Stormans were threatened with losing their pharmacy license.
In February 2012, the federal district court came to the obvious conclusion that the regulation was patently unconstitutional. “The facts of this case lead to the inescapable conclusion that the Board’s rules discriminate intentionally and impinge Plaintiffs’ fundamental right to free exercise of religion,” wrote Judge Ronald Leighton, of the United States District Court of the Western District of Washington. He further found that the regulation constituted a “religious gerrymander” because it carved out referral exceptions for secular reasons but specifically targeted those who referred because of faith-based reasons. Last July, a three-judge panel of the Ninth Circuit, which included one GOP appointee, reversed the decision and upheld the regulation. Today, the Supreme Court refused to grant an appeal to the Stormans, thereby allowing the regulation to stand.
While one cannot always read too much into a denial of cert, for the high court not to hear an appeal from the Ninth Circuit where a state regulation is violating the most basic property and religious liberty rights is very telling. Justice Alito filed a dissent from the denial of cert and was joined by Chief Justice Roberts and Justice Thomas. After a lengthy analysis noting that the district judge likely ruled correctly, he concluded:
‘The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.’ Church of Lukumi Babalu Aye,
supra, at 547. Ralph’s has raised more than ‘slight suspicion’ that the rules challenged here reflect antipathy toward religious beliefs that do not accord with the views of those holding the levers of government power. I would grant certiorari to ensure that Washington’s novel and concededly unnecessary burden on religious objectors does not trample on fundamental rights. I respectfully dissent.
What this case and the numerous cases involving the Obamacare birth control mandate demonstrate is that almost every circuit court no longer believes in religious liberty, in line with five justices on the Supreme Court. We will never be able to rely on the federal courts to protect religious liberty. They can only be a liability in striking down good laws that are in compliance with the Constitution.
This is yet one more reason why Congress must take power away from the courts and pass civil rights-style legislation precluding any state or federal government from coercing an individual to violate his or her religious conscience while running a personal business. They must also attach a provision stripping the courts of any jurisdiction to overturn that religious liberty law. Even if we somehow succeed in filling Scalia’s seat with an originalist, the Left will still have five seats on the Supreme Court and the momentum of almost every circuit vouching for their views on the lower courts.
One can see from this case just how powerful the pagan lobby, and its ability to appeal any decision granting relief to family businesses targeted for their religious beliefs, really is. The homosexual and transgender lobbies are even more powerful than the abortion lobby and will have the ability to use blue state laws or the courts to strip us of any last vestige of religious conscience. If the federal government cannot protect the most sacred of property and religious liberty rights, then there is no purpose to the federal union.
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Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.