RELIGIOUS  FREEDOM  IN  USA?

Left, right

Thirty years ago, progressives embraced religious exemptions. No longer

From  The  Economist  -  July 2016

ONE day after releasing their final rulings of the term, the justices of the Supreme Court returned for an encore on June 28th. The occasion was an event that occurs roughly 7,000 times each year and normally turns few heads: a refusal to hear a case. But in the matter of Stormans v Wiesman, the justices' "no thanks" was accompanied by a rare and sharp dissent from the court's three most conservative members. Writing for John Roberts (the chief justice) and Clarence Thomas, Samuel Alito warned that the denial was "ominous". If the court's refusal to take up Stormans "is a sign of how religious liberty claims will be treated in the years ahead," Mr Alito wrote, "those who value religious freedom have cause for great concern."

The plaintiffs in Stormans are the devout Christian owners of Ralph's Thrift-way, a grocery and pharmacy in Olympia, Washington. The Stormans family, along with two other pharmacists, brought a lawsuit in 2007 when Washington beefed up its rule requiring pharmacies to fulfil prescriptions for medications approved by the Food and Drug Administration. They claim their rights to free exercise of religion under the First Amendment are violated by a new regulation barring pharmacies from "refusting" to deliver a drug or device to a patient because its owner objects to delivery on religious, moral, or other personal grounds. Most states allow pharmacies to refer women to a nearby drug store where they can get such prescriptions, the plaintiffs pointed out, and Washington could do the same.

In 2012 a federal district court agreed with the Stormans, noting that "the rules exempt pharmacies and pharmacists from stocking and delivering lawfully prescribed drugs for an almost unlimited variety of secular reasons" but withhold expemptiorns only "for reasons of conscience". As a result, "the onus of the rules falls almost exclusively on religious objectors", forcing them "to choose between their religious beliefs and their livelihood."

In its review of this ruling in 2015, the 9th Circuit Court of Appeals roundly dis-agreed. The rules, it found, "do not create a regime of unfettered discretion that would permit discriminatory treatment of...religiously motivated conduct." With emergency contraception, time is of the essence, and the state may require all pharmacies to supply it. Besides, the rule applies to pharmacies rather than pharmacists; if a pharmacist cannot, in conscience, supply the pills, a colleague may do so.

Reaction to the Supreme Court's decision to let this ruling stand was swift: liberals cheered, the right jeered. "When a woman walks into a pharmacy," a lawyer from the American Civil Liberties Union said, "she should not fear being turned away because of the religious beliefs of the owner." A writer in the American Conservative, a magazine, saw it differently: the justices had decided that "Christians can no longer be pharmacists," he wrote.

This stark left-right divide is familiar from recent court battles over the contraceptive care provisions of the Affordable Care Act. In 2014, in Burwell v Hobby Lobby Stores, the Supreme Court split along ideological lines when it upheld the right of some companies to refuse to supply their employees with birth control for religious reasons. But it was not always thus. In the Warren and Burger courts of the 1960s, 1970s and 1980s, religious accommodation was a liberal tenet. In a case in 1963 Adell Sherbert, a Seventh-Day Adventist, lost her job in a textile mill because she refused to work on Saturday. When Ms Sherbert was denied unemployment compensation she sued. The Supreme Court found that South Carolina had interfered with her religious liberty while lacking a compelling reason for doing so. Under this formulation, known as the "Sherbert test", the court went on to vindicate Anish and Jehovah's Witness litigants, decisions that liberals praised as much-needed judicial protection of vulnerable religious minorities.

The story took a different turn in 1990, when Antonin Scalia sharply reduced the protections of the free-exercise clause. In Employment Division v Smith, two members of a Native-American church were told they had no First Amendment right to unemployment compensation after being fired for ingesting peyote as part of their religious observance. When someone's ability to exercise his religion takes a hit from a "generally applicable and otherwise valid" law like a narcotics statute, the court held, that's tough luck.

The Smith decision was roundly condemned, leading Congress overwhelmingly to adopt the Religious Freedom Restoration Act (RFRA) in 1993. This restored the principle that the government may not infringe on a right unless it has an exceptionally good reason for doing so and uses a narrowly tailored means to accomplish its goal. 

The Supreme Court subsequently held this applied only to federal, not state, laws. So while RFRA served as the legal basis for the conservative challenges to Obamacare, it did not provIde a safe harbour for the Christian pharmacists in Washington. Instead, the Stormans tried their hand at an ill-fated constitutional claim.

Douglas Laycock, a law professor at the University of Virginia, thinks Justices Elena Kagan and Stephen Breyer ("and maybe all of them") might have voted to grant Stormans had the court been at full strength. But with only eight sitting justices, he says, there may have been "reluctance to take on a fundamental issue about the free-exercise clause." Mr Laycock says that Church of the Lukumi Babalu Aye v Hialeah, a case from 1993 in which the Court reprimanded a Florida town for targeting animal sacrifice in Santeria (while permitting the killing of animals for almost any other reason), shows that Smith did not gut the free-exercise clause. The facts leading up to the change in pharmacy rules in Washington, he asserts, "were as bad as Lukumi. The rule was clearly aimed, he says, to stick, it to religiously observant pharmacists.

Nelson Tebbe, a professor at Brooklyn Law School, disagrees. The "court was wise to pass Stormans over," he said. The facts are "very messy" and do not make the case a "perfect vehicle" for clarifying the scope of a fundamental right.

Despite that, the fate of the case sheds a clear light on the transformed political landscape of religious liberty in America. With Christian evangelicals and Catholics opposed to abortion, contraception and gay rights now headlining religious-freedom cases, and tiny religious minorities off centre-stage, liberals regard religious accommodations with increasing suspicion. Conservatives are their new champions. ■