Bench Memos

Important Victory for Religious Liberty in Washington State

I’m pleased to report that a federal district court in Washington state today delivered an important victory for religious liberty. As I outlined in several posts some weeks ago, Washington state regulations violate the Free Exercise Clause of the First Amendment by compelling pharmacies and pharmacists to dispense the abortifacient drug Plan B, notwithstanding their religiously informed conscientious convictions not to participate in the destruction of the life of an unborn human being.

In its opinion today, the federal district court correctly ruled that the regulations do violate plaintiffs’ Free Exercise rights. Specifically, the court determined that the regulations are not neutral for purposes of deference under Employment Division v. Smith. Rather, they “are riddled with exemptions for secular conduct, but contain no such exemptions for identical religiously-motivated conduct” and thus amount to an “impermissible religious gerrymander.” Likewise, the regulations are not “generally applicable” but rather “have been selectively enforced, in two ways”: First, the rule that pharmacies timely deliver all lawful medications has been enforced only against the plaintiff pharmacy and only for failure to deliver plan B. Second, the rules haven’t been enforced against the state’s numerous Catholic-affiliated pharmacies, which also refuse to stock or dispense Plan B. 

For each of these reasons, the regulations are therefore subject to strict scrutiny, which they can’t survive.

The court also found that the state regulations were “aimed at Plan B and conscientious objectors from their inception.” Indeed, “the predominant purpose of the rule was to stamp out the right to refuse.”

Congratulations to the Becket Fund and to the Seattle law firm of Ellis, Li & McKinstry on their important victory. (The Becket Fund’s press release is here.)

Just a couple of additional observations:

1. The argument that the HHS mandate violates the Religious Freedom Restoration Act is far simpler to grasp than today’s sound ruling is. In part that’s because, in the case of the HHS mandate (a federal action subject to RFRA), there’s no need to reach the Free Exercise issue, including the threshold question whether the mandate is a neutral and generally applicable law for purposes of deference under Employment Division v. Smith (it’s not). In part that’s because it’s so immediately obvious that the HHS mandate flunks the “least restrictive means” test.

Before today, I already regarded the position that the HHS mandate violates RFRA as a slam-dunk winner, as a 9-0 ruling in the event that the issue ever reaches the Supreme Court. (It probably won’t reach the Court, as it’s highly unlikely that any court of appeals will get this one wrong.)

2. Some might be inclined to discredit today’s ruling on the ground that the judge who issued it, Judge Ronald B. Leighton, was appointed by President George W. Bush and therefore might be thought to have, and to have indulged, social-conservative biases. That’s an extremely improbable hypothesis. Set aside the fact that Leighton had to pass the scrutiny of Washington’s Democratic senators, Patty Murray and Maria Cantwell, ever to get nominated. More telling is that Leighton, “in a sometimes emotional ruling from the bench,” ruled in September 2010 that the “Don’t Ask, Don’t Tell” law could not constitutionally be applied to a lesbian who had been discharged from the military and ordered her reinstated. 

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