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Free Minds & Free Markets

Supreme Court Delivers Bitter Pill on Religious Liberty

Court refuses to hear case about Washington laws that allows pharmacists all kinds of exemptions, except ones that are matters of conscience.

Should a pharmacy whose owners have moral objections to the death penalty be required to provide execution drugs? The liberal justices of the Supreme Court apparently think so.

In one of its last orders of the term, the high court refused to hear a case brought by a family-owned drugstore in Washington state.

The Stormans, who own Ralph's Thriftway, object to state regulations that force pharmacies to dispense certain drugs. A federal district court ruled in their favor, but the 9th Circuit Court of Appeals overturned it. The Stormans asked the Supreme Court to hear their case, but the four liberal justices refused.

Justice Samuel Alito wrote an irrefutable dissent, which fellow conservative justices John Roberts and Clarence Thomas joined. Alito makes it painfully clear that Washington's rules amount to blatant religious discrimination.

Under those rules, pharmacies can cite any number of nonreligious reasons for not stocking certain drugs. A pharmacy can decline to stock a drug if it requires extra paperwork. Or if it has a short shelf life. Or if it might attract crime. Or if the pharmacy serves a niche customer base (such as diabetics) and the drug does not.

A pharmacy can even refuse to provide a drug—even a drug it regularly stocks—if it does not accept Medicaid, Medicare, or a patient's insurance. As Alito notes, this means the drugstore can refuse to provide certain patients with any drugs at all.

But under Washington's rules, the one basis a pharmacy can never cite for refusing to provide a drug is "because its owner objects to delivery on religious, moral, or other personal grounds."

As the evidence from the case makes clear, this was not just an effect of the regulations, but the entire point. The executive director of the state health board said its task was "to draft language" permitting exemptions for "legitimate" reasons—which he explained meant "non-moral or non-religious reasons"—and excluding those based on conscience.

To compound the inanity, the regulations have to do with what is called "facilitated referral." In other words, they govern when it is acceptable for Pharmacy X to tell someone, "Sorry, we don't provide that drug, but Pharmacy Y across the street does, and they'll be happy to fill your prescription." Pharmacies do this constantly, because it is impossible for every pharmacy to stock every one of the thousands of drugs available by prescription.

In the case of Ralph's Thriftway, Alito notes, the drugs at issue "are stocked by more than 30 other pharmacies within five miles of Ralph's." Nevertheless, Washington regulators insisted that Ralph's also stock the drugs rather than refer customers elsewhere.

At this point it should be noted that the drugs in this particular case are not execution drugs. The dispute actually concerned emergency contraceptives such as Plan B. That made objecting pharmacies the target of hostility from pro-abortion groups. As the district court noted, such groups carried out an "active campaign ... to seek out pharmacies and pharmacists with religious objections to Plan B and to file complaints" with the state. A third of all the complaints concerned Ralph's. Consider this one more proof that liberal homilies about tolerating other viewpoints are little more than a hollow joke.

But the point holds regardless of what sort of drug the state insists a pharmacist carry: Washington allows exemptions for secular reasons, but not for religious ones. Pro-choice groups might object that the analogy is weak because no loss of individual rights is at stake if a pharmacy does not stock an execution drug. But as the preceding makes clear, no loss of individual rights is at stake if a pharmacy does not stock emergency contraception, either—because the drug is readily available elsewhere, and Ralph's was perfectly willing to refer customers to those other stores.

Insisting that Ralph's refusal to stock emergency contraception violates a woman's right to choose is equivalent to saying that Target violates a woman's right to buy a gun because it doesn't sell firearms.

Washington's rules do allow a conscience exemption for individual pharmacists. But they require drugstores to have on duty a pharmacist who does not object to emergency contraception. This effectively renders pharmacists with religious objections unemployable, since no drugstore is going to pay for two on-duty pharmacists when one will do. The narrow exception also offers no relief for drugstores that are individually or family-owned.

In refusing to hear the Stormans' case, the Supreme Court has given states a green light to practice what the district court called a "religious gerrymander": They can single out deeply felt religious scruples as unworthy of consideration even while they accede to far less important objections, such as added paperwork.

Alito calls the decision "an ominous sign." He's absolutely right.

This column originally appeared at the Richmond Times-Dispatch.

Photo Credit: envios/flickr

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  • John||

    The Democrats have decided that people will no longer be able to express their religion anywhere outside of their own heads and for now their homes, if the government doesn't approve.

    We are seeing an enumerated right in the BOR destroyed in front of our eyes. They entire country was founded partially on the idea of religious freedom. The founders has seen the religious wars of Europe and did not want them to occur here. All of that is being destroyed.

    But hey, don't worry, I am sure they won't move on to other rights in the BOR. And I am sure the founders were just a bunch of big Christian meanies who hated progress. They didn't have good reasons to guarantee religious freedom or see guaranteeing the right to free exercise as essential to a free society and essential to keep people from killing each other over politics and religion. Nope. They were just a bunch of stupid old white guys who hated women and minorities.

  • Zunalter||

    The Democrats have decided that people will no longer be able to express their religion anywhere outside of their own heads and for now their homes, if the government doesn't approve.

    Don't worry, I am sure they are currently working on thought-crime legislation as we speak.

  • sarcasmic||

    Democrats are fine with religion, as long as it isn't a religion associated with Republicans. If the religion disapproves of sacred things like the right to kill unborn children, then it is not to be tolerated. In fact it should be criminalized, but that pesky constitution prevents that. For now.

  • Zunalter||

    Never stopped them before

  • kbolino||

    I'm pretty sure doctrinaire Islam is against abortion. It's the lives of the already born that one needs to be a little more concerned about where (certain) Muslims are concerned.

  • kbolino||

    Wikipedia says otherwise (on abortion) but the article is pretty short and poorly sourced.

  • Cynical Asshole||

    Yeah, but Muslims are an officially recognized aggrieved victim class, so it's all good. It's just those icky, gross, privileged Christians that aren't allowed to speak heresy to the Progressive theology.

  • R C Dean||

    We are seeing an another enumerated right in the BOR destroyed in front of our eyes.

    Honestly, isn't the1A in the best shape of any of the amendments?

    And its in tatters.

  • Zeb||

    It is, I think.

    It's not quite as bad as John represents (you can still go out on the street and proclaim your religion all you want, churches can spread whatever messages they want and outside of electioneering and commercial speech, free speech and press are pretty solid), but it's absolutely sickening how many people would happily destroy it completely just to stick it to political enemies.

  • John DeWitt||

    The third seems pretty solid. So far.

  • Ship of Theseus||

    That's only because they haven't had need for your house... yet.

  • kbolino||

    It was violated pretty wantonly in the Civil War without much repercussion to the government(s).

  • Adam330||

    Move onto other rights? They're already there. They're ripping out the core of the first, they don't think the second really exists, the takings clause barely exists anymore, and, other than the wise latina, none of them care much for the 4th either.

  • Tony||

    Not hearing this case leaves the First Amendment in the same place it was before. A ruling in favor of the plaintiffs would have changed it, and since you're so fond of hysterical slippery slopes, thing about where inventing a new right to ignore laws you claim your religion doesn't like might lead.

    And people stop fighting religious wars when they stop being religious.

  • Siegzon||

    Right. Then they move on to genocide once Christianity is expunged from their conscience.

  • hpearce||

    This article missed an important point to stress Freedom of Belief over or in addition to Freedom of Religion

  • John||

    There is no freedom of believe in the BOR. There is, however, a freedom of religion. Religion really is special and got special protections under the BOR.

  • hpearce||

    That's true, but I'm not a institutionalist who will support anything in the constitution like the right to Kill a Jew A Day that you may believe in.

    The constitution MAKES CLEAR it is not all inclusive !

  • Zeb||

    I think that freedom to believe what you will can fairly be assumed to be included with the freedom to practice religion.

    Where the interpretation really went wrong was in allowing religious exceptions to laws. If a law violates anyone's freedom to practice religion, it should not apply to anyone.

  • SugarFree||

    Yes, a veto not a gerrymander.

  • hpearce||

    OR these laws should be understood to apply to anyone for any belief that person may have.

    That's why Freedom of Belief should be used with a side reference to religion to avoid those circumstances that may call these laws discriminatory.

    Of course I also suspect many conservatives DO NOT support Freedom of Belief.

  • Vaelyn||

    John, I think it's fair to say that the entirety of the 1A is about freedom of belief and the expression of that belief. Freedom of speech is the freedom to express yourself verbally. Freedom of the press is the same, but in print (and, it has been ruled, in other media such as television that the Farmers could not have imagined.). Freedom of religion is the right to express your cosmological and moral values, and the tight to petition the government is the right to express yourself with regard to any grievance you feel.

    That leaves the right to peaceably assemble, and because it may be assumed that you are assembling in order to express some idea as a group, that's included as well.

  • Zeb||

    Until mind reading is perfected, it's pretty hard to enforce restrictions on beliefs.

  • hpearce||

    It is. But allowing people special rights under religious beliefs as opposed to other beliefs is discriminatory in my view.

  • Zeb||

    I agree completely. And when it comes to specifically religious beliefs, until anything that anyone claims as a religious belief is considered so under the law, there can be no true religious freedom or freedom of belief. If your religious beliefs have to be certified by a court in order for you to be able to freely practice, you aren't free.

    Of course, this all means that you can't have religious freedom without essentially libertarian laws all around. The only things that should be legislated at all are the sorts of things that are reasonable to limit or forbid even if they are part of religious practice (e.g. human sacrifice).

  • Tony||

    Should we rewrite the federal constitution in such a way that it tells states and localities strictly what kinds of laws they're allowed to pass? Why doesn't the freedom of communities to pass the laws they want to count as an important freedom?

  • kevrob||

    Because we have federal and state Constitutions that outline powers of various levels of government, but recognize rights of individuals. Sometimes rights of groups of individuals are recognized, as in 1A's freedom of association clause - peaceable assembly.

    State constitutions can and do limit what kinds of laws smaller units of government are allowed to pass.

  • sarcasmic||

    Tolerance means not tolerating intolerance. Christianity is intolerant. So in the name of tolerance, Christianity must not be tolerated.

  • Zunalter||

    "We tolerate everything that agrees with us!!"

    /progderp

  • ||

    OTOH, the ultra tolerant Islam must be made an exception to this rule. The Christians are just not tolerant enough. You have to be tolerant enough that people are in fear of losing their head.

  • hpearce||

    Tolerance DOES mean tolerating intolerance - otherwise it probably wouldn't be marked as important.

  • Jimbo||

    Hey, look! We have a new commenter.

  • kevrob||

    Let me introduce him to a fellow named John Locke, if he is unacquainted.

    .... I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other. If this be not done, there can be no end put to the controversies that will be always arising between those that have, or at least pretend to have, on the one side, a concernment for the interest of men's souls, and, on the other side, a care of the commonwealth.

    - A Letter Concerning Toleration (1689)

  • The Late P Brooks||

    Alito makes it painfully clear that Washington's rules amount to blatant religious discrimination.

    Boo hoo. Fuck this freedom-by-category bullshit.

    Freedom of association does not require a religious basis. Nor does freedom of contract or freedom of conscience.

  • John||

    Read the article again more closely this time. You can refuse to stock a drug for any reason you want under the regulations except for religious reasons. They are discriminating against religion here. Don't want to stock a drug because you can't make any money? Fine. Don't want to stock it because you don't like paperwork? Fine. Don't want to stock it because you don't want the DEA up your ass, fine. Don't want to stock it because it violates your religion, fuck you and start getting with the program.,

    I know it has got to hurt every bone in your body, but since is this really is a case of religious discrimination and not just an ordinary freedom of contract case, you are going to have to stand up for religious freedom and don't get the usual "but fuck religion what about freedom" out.

    Standing up for the freedom of things you hate. Life is so hard sometimes.

  • Lee Genes||

    John, the complaint is that freedom of religion is a subset of freedom of thought. Yes, religion is enshrined in the Constitution, but the individual right to set personal morals and abide by them is broader than religion. And yes, we all understand your argument that freedom of religion is special by virtue of it being specifically mentioned, but that does not negate a desire to see true freedom of association and thought take precedence.

    Besides which, this law effectively punishes inaction, once again. We're down the rabbit hole of government interference.

  • Pat (PM)||

    the complaint is that freedom of religion is a subset of freedom of thought.

    Which means you get a twofer on this one - you can oppose it on principled freedom of association/freedom of conscience/freedom of thought grounds without compromising anything.

  • Lee Genes||

    I'm not disagreeing with that.

    I'm just pointing out that there is an argument for individual rights that are broader than the ones listed in the BOR.

  • Free Market Socialist $park¥||

    So if there's a state regulation that forces pharmacies to dispense certain drugs does that mean the state is now on the hook to make sure every pharmacy has those drugs?

  • hpearce||

    The proposed law is Pharmacy/Drug Neutrality :P

  • Pat (PM)||

    This decision is nearly a month old. Better late than never, I guess. I'm actually mildly surprised to see it denounced in such unambiguous terms here. But hey, it's still a free country. No cause for pessimism as we continue the inevitable march toward more progress and more liberty.

  • Joao||

    Explain

  • Jimbo||

    Please check your sarcastometer settings.

  • The Late P Brooks||

    you are going to have to stand up for religious freedom and don't get the usual "but fuck religion what about freedom" out.

    Right. Because I oppose "freedom" specifically based on religious grounds, I'm in favor of oppressing the religious.

    I don't give a fuck; if you don't want to stock a certain pill because you just hate the color purple, knock yourself out. If you don't believe man should override God's law, that's fine, too. I'll shop down the street, or in the next town over.

  • SugarFree||

    Considering that Plan B is over the counter, and that there are plenty of places that stock OTC drugs that are not pharmacies, is there any gas station, supermarket, convenience store or bodega that isn't open to being sanctioned under this law?

    Or did they carve out pharmacies especially? There are pharmacies in a lot of Walmart and large grocery stores in KY, not sure about laws in other states... what about those?

  • GILMORE™||

    pharmacies are entirely different beasts, regulation-wise, from places that dispense OTC products.

  • SugarFree||

    In KY they are also grocery stores and liquor stores. I'm mostly curious where the line gets drawn.

  • GILMORE™||

    even if they're "store within a store" in the same building, there's a dividing line in the business operations, such that they're actually regulated as 2 separate entities. with their own hours, registered "managers", addresses, legal registration. etc.

    Basically yeah, you're right = any place operating a dispensary with a registered pharmacist would be subject to the law.

    But i think maybe (and I don't know 100%) Plan B isn't OTC like you think it might be. There are "OTC" things that still require a pharmacist to sell it to you. (i.e. they're not regulated under OTC product laws; they're products which have to be sold by a pharmacy, but do not require a prescription - you ask, they hand it to you.) not sure if that's how it works tho.

  • SugarFree||

    Yeah. Around here it's locked up with the condoms on the sales floor and you have to ask the pharmacist, but I don't know if that's law or loss prevention.

  • R C Dean||

    The pharmacy has to be licensed, so its usually crystal clear what's "pharmacy" and what is "not pharmacy".

  • jerbigge||

    In a true libertarian society all drugs are OTC. Of course this only applies to adults who are willing to accept responsibility for their actions. See my blog on "Wordpress" under "muskegonlibertarian".

  • Rhywun||

    How is this any different from forcing a bookstore to sell books the owner finds objectionable? Would the Supremes be A-OK with that?

  • Zeb||

    I imagine the argument is that pharmacies are an essential service in ways bookstores are not. Being licensed and heavily regulated, dispensing drugs is a special privilege. And selling books is a lot closer to speech than selling drugs.

  • Father of Two||

    Owing a business, any business, that you build or acquire without using force, is a right. The use of government force to abridge that right through licensing and regulation is fundamentally wrong, and contrary to our country's founding principles.

  • Zeb||

    Sure, that's what I think. I was trying to imagine the reasoning that treats a pharmacist differently from a bookseller.

  • Mickey Rat||

    That would seem to imply that there should only be freedom in unimportant matters. That does not seem right.

  • GamerFromJump||

    Who the hell uses bookstores as anything but a lounge anymore?

  • hpearce||

    The importance of supporting Freedom of Belief is so that groups like the ACLU can't point to religious freedom as inherently discriminatory - which they do when "necessary" to promote their agendas.

    It is one of the major "mistakes" of the constitution which I believe the supreme court corrected in a decision that made/implied Freedom of Religion is a place-holder for Freedom of Belief.

  • GILMORE™||

    one of the major "mistakes" of the constitution which I believe the supreme court corrected in a decision

    What decision?

  • hpearce||

    Cantwell v. Connecticut (1940)
    States could not require special permits for religious solicitation when permits were not required for non-religious solicitation. The Court began applying the Free Exercise Clause to the states and recognized an absolute freedom of belief.

  • John DeWitt||

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Well, the 1A isn't philosophical. It's about preventing Congress from infringing on our ability to practice a religion, not believe in it. I don't think an amendment stating that you're able to freely exercise your beliefs would be of much practical use. That's about as broad as 9A, and we see how often that's ignored.

    Second, the only mistake is that the founders assumed we'd all actually give a shit what's in the document.

  • JayWye||

    I'm NOT religious,but "practicing your religion" consists of much more than going to church or praying.
    it also includes living your life,both personal and public,in accord with the tenets of your religion.
    A non-private business may decide to sell such products,and you could not refuse to dispense them as their employee,but in your own private business,Constitutionally,it's rightly your decision,not government's.
    Opening a business does not mean you surrender your Constitutional rights.
    Any "Libertarian" ought to agree with that.

  • John DeWitt||

    Reply fail?

  • Jgalt1975||

    I would take criticism of these kinds of rules far more seriously if the critics were trying to deregulate pharmacies and the practice of pharmacology in general because, given how heavily regulated this line of business is overall, it's in practice more like a public utility than a regular retail business. However, I'm not going to hold my breath waiting for that to happen.

  • The Fusionist||

    "I would take criticism of these kinds of rules far more seriously if the critics were trying to deregulate pharmacies and the practice of pharmacology in general"

    Well, let's leave that question out there for A. Barton Hinkle to answer - he wrote the article, after all.

    Well, Mr. Hinkle, do you want to deregulate pharmacies and the practice of pharmacology in general?

  • Jgalt1975||

    I would imagine Hinkle does, but "critics" here is broader than just the author of the article. Had the litigants in this case been trying to deregulate the business or were they happy to enjoy the state-protected oligopoly that limits their competition until all of a sudden they found out that the regulators weren't their friends? I'm going to be very surprised if they had, and I further would strongly suspect that even now they would be happy for the regulatory regime to continue as long as they got their specific carve-out.

  • Father of Two||

    I don't know about Hinkle, but I do advocate deregulation of pharmacology and everything else. Still, if we cannot even hold the line on rights specifically enumerated in the Bill of Rights, how can we possibly make any headway on anything else?

  • The Fusionist||

    That is an excellent question.

  • DarrenM||

    It's perfectly OK to suppress rights as long as you regulate the hell out of it.

  • Set Us Up The Chipper||

    Public accommodation blows.

  • Zeb||

    Public accommodation is great. Forcing people to accommodate the public in certain ways blows.

  • Glide||

    I don't envision any libertarian progress on the issue unless and until conservatives honestly start believing in freedom of association, above and beyond the specific freedom to be conservative Christians without being litigated for it.

    That's not a slam, they're way closer to libertarian on the issue than progressives are solely on the fact that they usually look to boycotts before lawsuits when they see (hypothetical) 14 other religious texts and no Bible on the bookstore shelf.

    But defending the rights of those you disagree with is a rare and valuable trait, so I imagine we're doomed to another hundred years of Democrats taking rights from the bad people and defending the rights of the good people, and Republicans countering by defending the rights of the good people and taking rights from the bad people.

  • The Fusionist||

    I seem to recall conservatives defending freedom of association outside the context of conservative Christians - eg, in insisting on the plaintiff carrying the burden of proof in "civil rights" cases and insisting that actual intent to discriminate must be proved against the defendant.

    These positions got them called racist, because any *real* anti-racist wants to force defendants to prove their innocence, and won't let them off the hook simply because a specific intent to discriminate hasn't been proven against them.

    So there's an example where many conservatives took a lot of flak for wanting at least *some* defense of freedom of association. Of course, they weren't being pure so it doesn't count.

  • kevrob||

    As a former bookseller, I can tell you Bibles are, collectively, the most shoplifted type of book, certain smut excepted. Some of the thieves believe The Lawd will forgive them, as if there weren't humpty-million tract societies willing to give them the flaming volume for nothing. The real bastards are the "I'll steal it from B. Dalton and try to return it for cash at Waldenbooks*" creeps trying to convert their thefts into cash, with lines like Moze Pray in Paper Moon. I hated selling Bibles. My managers knew I been educated as a Catholic, and knew which versions were preferred by which denominations. Of course, if you pay attention during 12 years of Catholic school and 4 undergrad years with the Jesuits, you are likely to turn atheist, like me. I wanted to relabel the "religion' section "superstition, and interfile the "new age" crap - Kevin R.

    * Both firms were operating when I started in bookselling.

  • Eternal Blue Sky||

    Great. So pharmacists of my Faith need to stock opioids now I guess.

  • DarrenM||

    Just make sure you charge a small fortune for them, though I expect prices are regulated to a large extent.

  • JayWye||

    and hallucinogenics. like peyote,LSD and Ecstasy.

  • Francisco d'Anconia||

    The executive director of the state health board said its task was "to draft language" permitting exemptions for "legitimate" reasons—which he explained meant "non-moral or non-religious reasons"—and excluding those based on conscience.

    Cuz we'll decide what's moral for you!

  • ThomasD||

    The only acceptable morality is decided by the state.

    Everything within the state.
    Nothing outside the state.
    Nothing against the state.

  • Just Say'n||

    It's a good thing that Gary Johnson, as the Libertarian candidate, has so thoroughly denounced this Washington law along with the administration's assault on the religious liberty of nuns......wait.....this just in: Gary Johnson sells out liberty so as to be 'cool'. Epic, epic, epic, fail for the Libertarian Party, the party that 'pretends to have principles, as long as that's cool...is it cool?'

  • Stilgar||

    The Supreme Court declined to hear a case about a law prohibiting pharmacists specificall from consicence-based decisions on stocking.

    Taking the day off ReasonStaff editors?

  • Careless||

    That's got to be the worst I can recall

  • JayWye||

    so stock the drugs,but charge an outrageous price for them. claim it's to support legal fees and treat your emotional distress.
    Then you can tell a customer,"yes,this drug is in stock,it costs $5000 per dose. Store X across the street has it for $25 a dose."

    If FEDGOV can charge a $200 tax on a $5 muffler (suppressor),then this ought to be just as legal.

  • JayWye||

    the REAL question is;does a person have any right to the labors or property of another person or business if that other party doesn't freely consent to it? No.
    Does a person lose their Constitutional rights (First,5th,and 13th amendments) when they open a business? No.
    If one goes by the Constitution,"public accommodation" laws are unconstitutional,they force people into slavery,indentured servitude.
    It's anti-freedom. it's Fascism.
    Private property rights should always trump your feelings being hurt or your desire to do business somewhere.

  • Uncle Jay||

    RE: Supreme Court Delivers Bitter Pill on Religious Liberty
    Court refuses to hear case about Washington laws that allows pharmacists all kinds of exemptions, except ones that are matters of conscience.

    The little people should not concern themselves with something as bourgeois (SP) as a conscience.
    The little voice trespassing in their minds must be exorcised from all their pointy heads of if we are to evolve into a socialist haven. They must absolve themselves of the antiquated notions of pity, remorse and allow their obvious betters enslaving them to do their thinking for them. All too often the untermenschen make mistakes that have catastrophic results not only the collective but on our benighted socialist slavers as well. Indeed, it is only through cleansing the mind and soul of the antiquated and archaic beliefs of altruism, kindness and forgiveness can we say we are strong enough to become a socialist heaven on earth. Therefore, let us all march forward without showing any display of conscience in order to accelerate our goal of enslavement, oppression and terror every socialist slaver has envisioned for us.

  • JayWye||

    it seems this store is left with the choice of dealing in these drugs,or to drop the pharmacy completely,and only deal on OTC drugs. OR,I suppose they could contract out the pharmacy operation to someone else,and then it's not them who are dealing the disliked drugs. The contract could specify that their compensation NOT derive from sale of those specific products. (disclaimer; IANAL)

  • EscherEnigma||

    Irrefutable? That word does not mean what A. Hinkle thinks it means. The argument was refuted.

  • Vaelyn||

    There is a disturbing tendency among some here at Reason (both commenters and staff) to minimize the legitimate concerns of religious believers on the grounds of insufficient inclusivity. The reasoning seems to go that because religious objections to things like public accommodation laws are not grounded in a broader notion of Freedom of Association, they are not worthy of defending. Someone recently said, in fact, (paraphrasing) that"I'm not worried about defending some mystic's right to be an asshole to people."

    Well, you should be. That reasoning could easily apply to any issue dear to Libertarian hearts. 'I'm not a gun nut, so why should I care about gun restrictions?". "I'm not a drug user, so why should I care about the drug war?" And so on.

    All that is necessary for the death of Liberty is for its champions to lose interest in defending it.

  • Tony||

    There is a tension between people who want to freely exercise their religion and people who are on the receiving end of that free exercise, like say women who don't want to be discriminated against and humiliated for visiting a pharmacy for a particular reason.

    First Amendment law in this country does not actually give a huge amount of latitude when people want to object to laws with religious beliefs.

  • Just Say'n||

    It's very simple. You have no right to force people to do something that contradicts their conscience. Decent people already know this, but regressives (who ironically dub themselves 'progressives') don't seem to get that. Someone's conscience is more important than you receiving contraceptives from any pharmacy of your choosing, especially since you have a plethora of options.

  • Tony||

    It's very simple. You have no right to force people to do something that contradicts their conscience.

    Unless their conscience requires human sacrifice, a lack of respect for property rights, or a million other examples we both could come up with. Laws make people do things they don't necessarily want to do all the time. It's not simple at all.

  • Just Say'n||

    Actually, it is VERY simple and it has long been stated in judicial precedent. The government must have a 'compelling interest' to force people to violate their conscience. There is no 'compelling interest' in forcing people to provide contraceptives, considering that there are a multitude of choices. I would suggest refreshing yourself with legal precedent before flippantly commenting on these topics.

    Perhaps faux libertarians, such as yourself, should change your motto to "free minds (except for the iky religious) and free markets (again, except for those iky religious people)"

  • Tony||

    It very much can be argued that there is a compelling government interest in ensuring timely access to legally prescribed medications.

    I'm not a libertarian, but even if I were I would caution that such issues of competing rights are not as easy to resolve as you claim--otherwise this case would not have almost made it to the supreme court.

  • Just Say'n||

    There is no right to have someone provide you with birth control. There is only a right to not have the state outlaw birth control. You have no constitutional right to have a pharmacy provide you with birth control, otherwise this Washington law would not be necessary. You do have a constitutional right to the free exercise of religion.

    Ergo, you are balancing a constitutional right against nothing. No balance act is necessary. The constitutional right wins out.

    Further, no compelling interest, at all, exists here, as you have multiple avenues to buy contraceptives.

  • Just Say'n||

    Further, the only reason why this case, and others like it, have reached the Courts is because the Left in this country no longer believes in religious liberty (not to mention the fact that they also opposed the 2nd Amendment and free speech if you are a company). Not even ten years ago the ACLU opposed laws like these and Democrats were the first to voice their opposition to these flagrant affronts to liberty. But, now the Democrats have decided that appeasing the Sexual Revolution is more important than just about anything.

  • Tony||

    This case was not instigated by liberals but by people wishing to test and expand freedom of religious practice under the US constitution. The concerted effort here, in Hobby Lobby, and elsewhere, is definitely on the right. It is not settled tradition in this country that religious doctrines trump secular laws. What the right is doing is using religious liberty as an excuse to impose discrimination in the marketplace--something I gather you as a libertarian think should be legal anyway.

  • Tony||

    There is a right in Washington to have a pharmacy provide you with birth control. There is no constitutional right to refuse to sell birth control under such a state law that requires it--yet.

  • Tony||

    This case was brought under the free-exercise clause of the First Amendment (not RFRA like the Hobby Lobby case, which deals with federal law), and had it succeeded it would have created a new interpretation of that clause granting people a broader right to object to specific laws on religious grounds. This would have gone against a prior opinion written by noted dead theocrat Antonin Scalia (1990's Employment Division v. Smith), which affirmed that the First Amendment does not grant people license to opt out of laws that apply to everyone.

  • Just Say'n||

    Wow- you must be a Gary Johnson faux libertarian. The First Amendment has long been interpreted to forbid laws passed specifically targeting the religious (read the 1993 case of Church of the Lukumi Babalu Aye v Hialeah). RFRA doesn't concern the constitutionality of laws that specifically target religion, as it just reestablishes the 'Sherbert Test', or rather government accommodation of religious belief. The Washington state law, drafted with consultation from Planned Parenthood, specifically forbids 'religion' from being used as a reason not to stock contraceptives (although it allows for numerous other reasons to be used for not stocking contraceptives). It's pretty obvious that this law is unconstitutional.

    I get it. It's 'hip' to hate the religious, but does that mean we have to ignore the literal purpose of the 'free exercise' clause of the Constitution. Gary Johnson and his ilk are not libertarian, at all. They're just libertines who are too 'hip' to call themselves what they are: Democrats. It's a pretty sad day when the Republican Party seems more concerned with individual rights than the libertarians.

  • Tony||

    I'm not any kind of libertarian. The free-exercise clause does not, despite your apparent insistence, give Americans the right to ignore laws for religious reasons. The Smith case, in which Scalia made this very point, established that states can allow for religious exemptions to the law but aren't required to. Now, Smith was controversial and I don't necessarily agree with everything in the majority opinion, but I do agree with Scalia's insistence that religious doctrine not be considered superior to secular law. Not to get too far down a slippery slope, but wouldn't this "every conscience a law unto itself" doctrine lead to all sorts of messy government entanglements in deciding what's legitimate religion, etc., that it's not already caught up in?

  • Just Say'n||

    You are seriously missing the point. I highly suggest that you read these cases, rather than parroting talking points. The Smith case restricted only the 'Sherbert Test' which allowed for government accommodation. This Washington case has nothing to do with accommodation. The issue at hand is whether or not the government can pass laws that specifically target the religious or a religion. The Smith case did not effect the LONG held notion that the government cannot pass laws targeting religious groups (read Church of the Lukumi Babalu Aye v Hialeah, which was decided after the Smith case). The fact that Washington wrote a law that singled out 'religious objection', while allowing other objections to exist, is a blatant attack on the religious beliefs of certain groups.

  • Tony||

    The elimination of the Sherbert Test in Smith meant that the state of Washington is permitted to protect religious objections like the one in this case but isn't required to. The question is whether permitting certain secular objections requires the state to also permit certain religious objections. Since SCOTUS didn't take it up, it remains unanswered, but proving discrimination would have been a tough case in this specific instance (the pharmacist was never actually penalized).

  • Just Say'n||

    Church of the Lukumi Babalu Aye v Hialeah remains good law. You need to stop confusing 'religious accommodation' with a law that specifically targets religious belief. This law has nothing to do with accommodation and everything to do with the fact that it specifically targets religious objectors. That is plainly unconstitutional.

  • Tony||

    I don't think it's clear that the law specifically targets religious practice. It requires the filling of all prescriptions, and then elsewhere there are secular exemptions--again, making the question whether those exemptions require an exemption for religious belief as well.

  • EscherEnigma||

    What? No.

    The First Amendment has not historically been interpretted in a way that would make this law unconstitutional, that's why the we have a RFRA.

    But RFRA applies to the Fed, not to the states. So the pharmacy had the choice to either try arguing it under Washington's RFRA, which was probably fairly safe but would limit the decision to Washington, or under the First Amendment, which would be an expansion but apply nation-wide.

    That said, not including specific exceptions in your law is not the same as "specifically targeting".

  • Just Say'n||

    RFRA concerns only the 'Sherbert Test', which allows for religious accommodation. Laws that specifically target religious groups or practices have long been held to be unconstitutional (at least since the turn of the 20th Century when the 'free exercise clause' was applied to the states).

    You are confusing two parts of the 'free exercise clause'. The 'Sherbert Test', which no longer exists in judicial jurisprudence, but was resurrected through RFRA required that government provide religious accommodation (ie. Muslim inmates must be allowed to grow beards in prison or the military, etc.). But, passing laws that specifically target religious practice is still good jurisprudence, as recently as 1993.

  • Vaelyn||

    But as the article points out, this law does NOT apply to everyone. Only those who object on religious or moral grounds.

  • Tony||

    The state law (adopted in response to pharmacies refusing to fill prescriptions for birth-control drugs) says that pharmacies must dispense lawfully prescribed drugs and that if someone has an objection they are permitted to allow a colleague to fill a prescription.

  • Just Say'n||

    It's disturbing how you ascribe greater weight to unlimited accessibility to contraceptives over religious liberty. This new definition of 'liberty', which is no liberty, at all, is beyond ludicrous.

  • Tony||

    A positive ruling for the pharmacist would have been a significant expansion of First Amendment protection of religious freedom, one that I probably would be uncomfortable with, but don't take my opinion on this matter as strong or certain. There is a lot of detail that makes this case a muddled one.

    But it is hardly obvious that the one "pro-freedom" position here is to let religious pharmacists discriminate. I get that libertarians aren't keen on requiring public accommodation, but that's a whole other discussion.

  • jjjjj||

    Pro-choice so long as you make the choice we've prescribed

  • John Ash||

    Saying that refusal to provide the drug isn't a violation because the drug is available elsewhere is approximately analogous to refusing to provide service at a lunch counter because there are other places the person can go to get something to eat.

    Balancing the right of free association with the commitment to reducing institutional discrimination is always difficult. But it's easy to imagine a scenario where such an exemption becomes a de facto ban because no one in the area provides the good or service under consideration.

    Is the solution to allow exemption laws contingent on whether the good or service is available close by? Who decides if the good is "reasonably obtainable" from an alternate source? Because if that decision was being made in Texas, you can be sure they'd consider "reasonably obtainable" to mean a trip to another state.

  • John Ash||

    It's also easy to imagine pressure being applied to ensure such goods became increasingly difficult to obtain, via boycotting of stores that supplied the objectionable good, perhaps even escalating to violence against property and people who provided it, as isn't uncommon surrounding the abortion rights debate.

  • Vaelyn||

    That's actually extremely uncommon.

  • kevrob||

    Telling a pharmacist with religious scruples about abortifacients and/or contraceptives to provide them is more like requiring kosher restaurants to serve pork chops and cheeseburgers. There are other places to eat.

  • Just Say'n||

    There is no 'institutional discrimination' at issue here. Your argument fails

  • John Ash||

    You have an apostrophe in your name. Your argument fails.

    That is now non sequitur works, right?

  • Just Say'n||

    It's disturbing how so-called libertarians who insist that they believe in individual rights are so quick to throw the rights of religious people under the bus when society decides they're not 'cool' anymore. Move over Republicans, because the libertarians are a whole new brand of hypocrite.

  • Jim176||

    If I understand this law correctly; The simple solution to the Pharmacist is to say that they are out of stock at the moment. No religious explanation is needed. Now the person who wants to buy that particular drug may come back again the next day and could be told the same thing. But there is nothing in that law to prevent it.

  • Vaelyn||

    And how long would they be able to get away with that?

  • kevrob||

    These religious people are then supposed to lie. "Out of stock at the moment" implies it may be in stock at some time in the future. That's B.S.

  • Mickey Rat||

    In the nameof secularism, practical dissent from progressive moral sensibility is made illegal. Making an effective religious test to be self employed in this profession. There is no way this can go horribly wrong.

  • jerbigge||

    There's a simple solution for this: The pharmacy in question can simply post a notice that they do not fill certain prescriptions. Then those who have a prescription for a certain drug know that the pharmacy in question does not fill prescriptions for the drug in question.

    The same principle can be applied to any business. A public notice is displayed that the business in question does not provide certain goods and/or services. Then those who seek these goods or services will know that they will have to go somewhere else to obtain these goods or services.

    Of course there will also be an economic consequence to doing this, but that is up the business to decide.

  • kevrob||

    Post that notice and get sued, or face a state administrative hearing with your licensing at risk, based on "sex discrimination."

  • GamerFromJump||

    Potential business idea: Greenbox. A robo-pharmacy consisting of a booth and a bank of armored vending machines that holds the different products in separate dispensers. Customers enter the booth and insert their Rx (which is OCRed) and enter their ID information and payment, and the appropriate item is counted out into appropriate container(s), labeled, and dropped into the slot with a receipt.

    There you go, problem solved and nobody's precious god-feelz got hurt; wasn't that nice?

  • buybuydandavis||

    In the case of Ralph's Thriftway, Alito notes, the drugs at issue "are stocked by more than 30 other pharmacies within five miles of Ralph's." Nevertheless, Washington regulators insisted that Ralph's also stock the drugs rather than refer customers elsewhere.

    The point isn't getting the customer the drugs they need, the point is establishing that the Progressive Theocracy can bend over it's enemies whenever they damn well please.

    Orwell knew the score:

    Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever.

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