Is Religious Freedom Under Attack in the Supreme Court?

Uncertainty Just Ahead Green Road Sign with Dramatic Storm Clouds and Sky.

In a possibly “ominous sign” of things to come, in the words of Justice Samuel Alito, the Supreme Court recently refused to hear a case centered on religious freedom, specifically on the right of a devout Christian pharmacy owner to refuse to sell contraceptives in his store in Olympia, Washington.

Chief Justice John Roberts and Justice Clarence Thomas joined Justice Alito in dissenting to the court’s decision, with Alito writing that despite the case’s similarity to a 1993 case the court heard involving religion, “the rules challenged here reflect antipathy toward religious beliefs [Christianity] that do not accord with the views of those holding the levers of government power.”

First, a bit of background. The pharmacy, Ralph’s Thriftway, is owned by the Stormans family. It has been in business for 72 years helping customers from the local community with prescription drugs, over-the-counter medications and various groceries.

In 2007, based on an order from Governor Christine Gregoire, a fervent pro-choice Democrat, the Board of Pharmacy in Washington passed a regulation mandating that pharmacies sell “Plan B” among other contraceptives.

It should be noted that the American Pharmacists Association among 37 other state and national pharmacy associations immediately condemned the regulation.

However, more than 30 pharmacies within a five-mile radius of the Stormans’ store complied with the rule. At the same time, Ralph’s Thriftway and two other pharmacies objected on religious grounds (specifically due to the pro-life beliefs of their owners).

The conservative nonprofit organization Alliance Defending Freedom (ADF) who took up the case for the defendants argued that the state was abrogating the Stormans’ and other owners’ Constitutional First Amendment guaranteeing freedom of religion.

The Washington State Federal District Court upheld the owners’ rights, but the Ninth Circuit U.S. Court of Appeals overturned its ruling. The overturning of the case not only affects independent pharmacist’s rights, it also has impacts on pharmacies located in hospitals affiliated with specific religions.

For instance, in Washington alone, half of the state’s hospital beds are provided by Catholic hospitals. Planned Parenthood has vowed to support similarly coercive laws in other states in the Ninth Circuit’s jurisdiction.

After the Court of Appeals’ decision, the Stormans then sought to have the case heard by the Supreme Court. While it’s true that more than 7,000 cases per year are rejected for hearings by the nation’s highest court, this particular case generated enough concern from the three aforementioned justices that they submitted a 15-page dissent.

Specifically, Justice Alito noted that “[The First Amendment] 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.”

In the 1993 decision mentioned above, the Supreme Court had chosen to hear that case, also known as the Lukumi case, ultimately striking down a local Hialeah, Florida law that appeared to have been crafted to discriminate against Santeria practitioners in that city (Santeria is a syncretic religion originating in the Caribbean).

Comparing the Stormans’ case to the Lukumi case, “there is similar evidence of discriminatory intent here,” noted Justice Alito, even though the relevant regulation in both cases did not mention any single religion specifically.

In the Washington case, Alito wrote, “there are strong reasons to doubt whether the regulations … actually serve … any legitimate purpose.”

Liberals have decried the dissent, claiming that if conservative Supreme Court justices are ever allowed to rule as is their wont, the affirmation of First Amendment rights could trump women’s and LGBT nondiscrimination measures across the country.

However, Justices Roberts, Thomas and Alito see things differently, with Alito declaring 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.”

Fourteen amicus briefs filed in the Court of Appeals’ decision by 30 constitutional law scholars, more than 40 members of Congress and thirteen states on behalf of a range of religious denominations agree with the justices’ opinions.

Writing their briefs, the groups state, “the nation’s largest circuit has never held a law subject to strict scrutiny under the [First Amendment].”

If this Supreme Court decision is a reflection of current judicial thinking, it’s a departure from the beliefs of 20 years ago and represents an erosion of the First Amendment. Justices Alito, Thomas and Roberts are correct in writing their dissent, and this important case should serve to remind political observers of the trend of the current and potential future Court in its rulings.

~American Liberty Report


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