“This case is an ominous sign,” Justice Samuel Alito wrote in dissent when the Supreme Court refused today to hear an important religious liberty case, with Chief Justice John Roberts and Justice Clarence Thomas joining the June 28 statement expressing Alito’s alarm.
Alito summed up the facts of the religious liberty case:
The Stormans family owns Ralph’s Thriftway, a local grocery store and pharmacy in Olympia, Washington. Devout Christians, the Stormans seek to run their business in accordance with their religious beliefs. Among those beliefs is a conviction that life begins at conception and that preventing the uterine implantation of a fertilized egg is tantamount to abortion.
Consequently, the Stormans don’t sell morning-after pills like Plan B. But those abortion-inducing drugs are carried by over 30 pharmacies within five miles of the Stormans’ store, and the Stormans refer customers to these local stores to obtain those drugs.
On orders from then-Governor Christine Gregoire (a staunchly pro-abortion Democrat) in 2007, the Washington State Board of Pharmacy created a regulation requiring pharmacies like the Stormans’ to sell Plan B and other “emergency contraceptives.”
The Stormans and two other pro-life-owned private pharmacies sued, represented by the Alliance Defending Freedom. They argued that the Free Exercise Clause of the First Amendment to the Constitution (which provides that the government shall not abridge a person’s free exercise of religion) protects their right to run their business in accordance with their Christian faith.
A federal district court ruled in favor of the Stormans, but the U.S. Court of Appeals for the Ninth Circuit reversed. The Stormans sought review by the Supreme Court, which is accomplished by filing a petition for certiorari.
The Supreme Court denies petitioners for review in more than 7,000 cases per year, and accepts less than 80petitions for argument and decision. It almost always denies the petitions without offering any comment. When a petition is denied, sometimes a justice who voted to grant review feels the need to dissent from that denial publicly, typically by writing a few paragraphs.
In Stormans, Inc. v. Weisman, Alito’s dissent is joined by two other justices and is 15 pages long. (If there had been a fourth vote, then review would have been granted.)
In his dissent, Alito notes how the Supreme Court in 1993 struck down a law that appeared neutral on its face toward religion, because the Court discovered that the intent of local lawmakers was to discriminate against members of a little-known religion, Santeria.
“As noted, there is similar evidence of discriminatory intent here,” Alito observed. He also discussed other striking similarities he calls between that case—called the Lukumi case—and Stormans.
Alito wrapped up his analysis, quoting in part from that 1993 case:
“The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposal 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.” 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.
Alito’s dissent was somber, conveying a gravity apparently shared by Roberts and Thomas. “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,” Alito declared.
Ken Klukowski is senior legal editor for Breitbart News, and senior counsel with First Liberty Institute, which filed a brief supporting Stormans. Follow him on Twitter @kenklukowski.
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