Tuesday, August 04, 2009

En Banc Rehearing Sought In Washinton State Pharmacy Board Conscience Case

Last week, a Washington state pharmacy filed a petition and an accompanying legal memorandum (full text) with the 9th Circuit Court of Appeals seeking an en banc rehearing in Stormans Inc. v. Selecky. Last month, a 3-judge panel in the case refused to preliminarily enjoin enforcement of Washington State Pharmacy Board regulations that require pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. (See prior posting.) A press release from Becket Fund reports on the filing.


Anonymous said...

It's time to get rid of the Free Exercise Clause.

-American Atheist

Deacon John M. Bresnahan said...

One great thing that separates the United States from the European countries is the written document-the U.S. Constitution-- that protects our rights and keeps government from becoming all powerful. When the government--through use of the licensing power-sets out to regulate our consciences and obey or be fired-we are on the way to creating robot citizens all tuned up for the day a president of dictatorial mind gets into power. And those who would be glad to see more needless government dictating are not hard to find. There is absolutely no shortage of pharmacists willing to dispense anything the customer has the money for--although a few might--oh horrors--have to walk across the street to get their pills from a more willing druggist.
The Free Exercise Clause is one of the most important parts of the Bill of Rights. Without it you might as well use copies of the whole Constitution for bonfires

Anonymous said...

I agree, Deacon John, that the free exercise clause is an important clause to keep around. It prevents the government from interfering with legitimate forms of religious expression.

However, I think it is also important to realize that the free exercise clause does not generally give one license to ignore the law. Laws of general applicability, applied generally trump the Free Exercise clause, a la the Smith case from Oregon regarding Peyote use.

Whether there are alternatives available or not is irrelevant. If a state licensing board licenses pharmacists to dispense drugs when presented with a valid prescription from a licensed doctor, and if a pharmacist willingly ignores her duty to do this, her license to dispense pharmaceuticals should be revoked. She has broken the public trust that license represented, and should have her authority revoked.

Free exercise over law is not liberty - it is license.

As a man of conscience, ought I to (were I in another job) refuse to grant licenses to hunters? Refuse to grant marriages to people of faiths I find antithetical to my views? I would be very wary of stepping across the boundary of allowing a person's conscience to give them a consequence-free pass to ignore the law, Deacon John. It was not so long ago that Catholicism was openly discriminated against and where a Catholic President was a legitimate worry for those afraid of the "Papists".


Anonymous said...

MD, well spoken as usual. I'm curious though can someone please tell me of specific instances where I might find the revocation of the Free Exercise Clause harmful?

I'm asking sincerely. I, not being religious, don't see any advantage to keeping it around. We would still have the protections of the Establishment Clause to keep the government from coercing us into religious activities. I don't suppose the government would have an incentive do interfere with rather benign church activities like religious gatherings for worship or religious schools. I just think removing the Free Exercise Clause would remove a person's ability to claim a right to really outrageous behavior like claims smoking peyote is part of your religion or wearing a beard and turban are required even if it interferes with your work.

But, trying to be rational and knowing how the scientific method works (form a hypothesis and then try to tear it down), I'm reasonably sure there is a problem with my advocating the removal of the Free Exercise Clause. I also know I'm probably blind to it's advantages.

Please, someone tell me, as specifically as possible, where it's removal would be harmful.

-American Atheist

Jim51 said...

"I would be very wary of stepping across the boundary of allowing a person's conscience to give them a consequence-free pass to ignore the law..."

This is, to me, the key thought. As a former conscientious objector myself, I tend to support such objections. However, as a form of civil disobedience, which CO status often is, it does not come consequence free. If it did there would be no barrier to flippant abuse.
I am having a hard time imagining a mechanism by which such objectors could stand their moral ground without incurring, under many circumstances, a penalty.
I don't think that the penalties should be born primarily by others. And while it's true that in many cases the prescription holder could go across the street (or nearly so) and get what they need, there are plenty of cases where that will not be so.
The case of a nurse or doctor that will not perform precedures or services that a hospital provides is another such case. Why should a clinic hire a medical professional who will not perform the services that the clinic provides?
Wherever the line gets drawn, in my view it needs to be drawn at least this side of full disclosure. A pharmacy chain hiring pharmacists has a right to know if the drugs and products they provide will cause their prospective employee to object.

Anonymous said...

The danger is not necessarily in how the free exercise clause operates currently, but rather in how it operates concurrently with the Supreme Court's definition of 'religion'. As I recall, the USSC includes things like secular humanism, philosophical systems, and atheism as 'religions' because they (can) occupy similar places in peoples lives. I think there is more than enough room to argue the USSC's understanding of the facts to which they apply the law there, but that's the current rule.

One area that the FE clause operates is in military drafts (or assignments as the case may be). A Quaker can apply for conscientious objector status and get his draft waived or be placed into service which does not violate his religious code (perhaps as a doctor, translator, or mechanic). Because philosophical systems can occupy the same place in our Constitutional framework as ordinary religions, they are called religions for the sake of the Constitutional tests. Thus, if I am a pacifist for ethical reasons - even though no deity is involved in the ethical principle I would be espousing - then I can also get conscientious objector status.

Take away the FE clause, and we have no CO status. There are other things that come to mind, but that's certainly one of them.

I also don't have a problem with FE clause jurisprudence like the cases which rendered flag oaths (ever read the German youth oath in pre-war Germany? Eerily similar in vibe) voluntary, and the like.

That said, I do recognize the tension between what I've just said and my previous statements to Deacon John, above. The resolution to that tension is pretty fine, and I'm far from certain that it meets any sort of Constitutional muster.


Deacon John M. Bresnahan said...

Ananymous --what good is a free exercise clause in a Bill of Rights if the government can use its licensing power to crush that part of the Bill of Rights any time a majority decides it wants to. Over the years I have read many stories of politicians supporting increased licensing requirements as a means of incrementally destroying a particular right--for instance some anti-gun people have been very open along these lines.
And as for the last Anonymous, the fact our government has to deal with conscience issues because of the Free Exercise Clause is why we-as a people- have never become as subservient to government as Europeans have in their countries over the centuries--This is why we have not created our own Hitlers, Mussolinis, Stalins, etc. Can you imagine those countries under those leaders doing anything but laugh at anyone raising a conscience argument in their courts??
This should be reason enough to keep the Free Exercise (conscience) clause.

BeyondBelief said...

Quoting "anonymous": I would be very wary of stepping across the boundary of allowing a person's conscience to give them a consequence-free pass to ignore the law,.

Couldn't agree more. Claiming conscience as a trump card to legislation is the end of society, if the right is enshrined in law. Each person becomes his/her own personal legislative bypass valve.

As for free exercise, the danger here is the expansion of the term "religion." Is it free exercise to deny another person their legally allowed rights, like the right to receive the prescription medications his/her doctor prescribes? The religious are worried about "us" expanding the definition of "public" and "secular, while we fear the encroachment of claims of religious protection for actions affecting someone other than the believer.

Anonymous said...

MD, thanks for taking the time to write back. A couple of thoughts and as it's mildly late, these will not be stated as clearly as I'd like.

Conscientious objector (CO) status seems to me to be pretty weak as a defense for removal of the Free Exercise Clause (FEC). Doesn't the government currently evaluate each CO claim individually, granting it to some and denying it to others? When CO status is granted, it seems to me, it's probably granted as an admission the recruit would not do their job as a soldier no matter what the army did. Putting this particular soldier into combat only endangers his/her squad mates. So by granting CO status, the Army is improving the odds that it's members will survive. Besides, removing the FEC doesn't stop the government from granting exceptions to carrying a rifle.

As for secular humanism (SH) being a 'religion', I found this at the Friendly Atheist blog today:

MItchell also says Torcaso vs. Watkins defined Secular Humanism as a religion.

Here’s what you need to know about the case: Torcaso wanted to become a notary public, but as an atheist, he did not want to declare a belief in God as was required by Maryland state law. The state denied his appointment, he sued, the case went to the Supreme Court, and the court unanimously ruled that Torcaso was right and Maryland’s law was illegal.

In the court’s decision, they wrote this:

We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person “to profess a belief or disbelief in any religion.” Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.

The court is absolutely right. The government shouldn’t be telling us to worship or not to worship. They should stay out of that business.

There’s also a footnote to that excerpt that reads like this:

Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.

Why put that in there? To offer examples of non-theistic faiths that should also not be endorsed by the government. That’s it. I don’t think the court’s intention there was to define Secular Humanism as a religion despite the wording.

Even if it did define it as such, the purpose is to say the government cannot force Secular Humanism on people. And even then, the court would be right.

I think this also pretty much covers flag oaths as part of coerced speech.

So while thoughtful, I don't think I'm convinced yet the FEC needs to be kept.

-American Atheist

Anonymous said...

Mr. Bresnahan, I'm calling bullshit.

The Free Exercise Clause (FEC) has not made us less subservient to government than anyone else. Americans are just as human and subservient as any other population. Does it benefit the people or our government to have such low voter turn out? Does the rioting in the streets of France benefit their government when some minor social benefit is withdrawn? If our allegiance isn't to our government it is too often given to religious organizations like the Catholic Church Reverend Bresnahan!

As for creating our own Hitlers, Mussolinis, Stalins, etc. these are accidents of history and opportunity. The FEC wouldn't have stopped it there and it wouldn't stop it here. Hell, I'd be surprised if the FEC were raised if totalitarianism ever reared it's head here in the US. I think it was Upton Sinclair that said when Fascism comes to American it will be wrapped in a flag and carrying a cross. It won't be the FEC that protects us then, it will be the Establishment Clause.

Remember, the churches were heavily involved with the Nazis. The Russian Orthodox church had the same power as the Stalinist Communists did before they were overthrown. Did the FEC stop the Japanese internment during WWII? Was it the FEC that kept Truman from dropping more A-bombs on Japan or Patton from pushing on to Moscow? Remind me how many Iraqi's have died and people tortured under the protection of our FEC! Our country is not sinless despite our FEC.

No Mr. Bresnahan, your religion does not give you morals we mere atheists do not have and the FEC seems to be only a free pass for the religious.

-American Atheist
(Sorry....I'm a little upset)

Deacon John M. Bresnahan said...

I agree there have to be parameters to the Free Exercise of one's conscience lest society disintegrate. But the debate should be over those parameters rather than wiping out the Free Exercise-conscience clause of the Bill of Rights in the Constitution. As a public high school teacher I have had serious problems in my conscience with the Pledge of Allegience--but not over the "Under God" in it, but over the state worship it is. However, since "Under God" clearly undercuts the pledge's seeming pledge of subservience to the state, I can live with it.
And I also am in favor of moments of silence or meditation rather than state written or composed prayers. If some kid wants to approach God in his mind--that is his business--if he wants to take the time to ponder over the well-built charms of the girl in the next seat to get his day off to a pleasant start--that is his business. But some courts seem to take the attitude--Egad! we can't even allow a moment of silence lest someone sneak in a prayer in their mind.

Jim51 said...

Regarding your question about the Free Exercise clause--
I understand the frustration of watching it used as an excuse but I do think that there are things that would happen without it. I can imagine some municipalities and possibly even some states (should we experience another major terrorist attack) that might decide to proscribe mosques within their jurisdiction. The FEC could certainly be used to stop that state or municipality from carrying out its new law.
I have actually had some difficulty with your question, which surprised me. I will have to consider it some more.

Anonymous said...

Jim51, thank you for the kind response and taking the time to think about my question.

Rolling your scenario around in my mind, I have to wonder a couple of things.

1) Are the mosques being proscribed because they're mosques or because they help terrorists (in your scenario. I have no problems with mosques or muslims or churches or christians in general). If they harbor terrorists, the FEC won't protect them. If they're being proscribed BECAUSE they're Muslims, aren't they protected by the 14th or 9th amendments (I'm not a lawyer so I don't know)? Could it be defended under the Establishment Clause as prosecuting one group solely on their beliefs lowers their status thereby elevating the status of the others?

Perhaps the FEC and Establishments Clauses are two sides of the same coin? Could I be vilified for being an Atheist WITHOUT establishing a state religion? Is it possible (in an extreme example) for the US to be made up of a majority of Muslims and Christians who as a group decide they don't like Atheists and kick them out of the country without violating the Establishment Clause??

I'll have to think a bit more about this myself.

-American Atheist

Anonymous said...

Friends, do me a favor and read the article below then tell me if the FEC is protecting the atheists or is it the Establishment Clause, or the Equal Protections Clause or the 9th Amendment?

-American Atheist


Gov. Chet Culver weighed in on the controversial Des Moines bus ad that has been yanked after multiple complaints.
“I was disturbed, personally, by the advertisement and I can understand why other Iowans were also disturbed by the message that it sent,” Culver said.
The question will likely become a legal battle, Culver said. He deferred questions of whether the group deserves the same free speech rights as Christian organizations to advertise on the buses to the Iowa Attorney General.
Culver also declined to answer if he would also have gotten off the bus had he been a rider, but noted that he would have been offended by the ad’s message.
The Des Moines Area Regional Transit Authority, better known, as DART, began running the ad on the side of some buses this week. It read, “Don’t believe in God? You are not alone,” and was sponsored by the Iowa Atheists & Freethinkers group.
DART Advertising Director Kirsten Baer-Harding said the agency’s board never approved the signs and that they were put up by mistake.
The ads were removed Tuesday.


...The ads sponsored by the Iowa Atheists & Freethinkers group read, "Don't believe in God? You are not alone."....


...DART admits it has run advertisements from Christian churches in the past.

Jim51 said...

My scenario was meant to be one in which there is no evidence of the mosque supporting terrorism. Lack of evidence, however, rarely stops hasty majorities from taking unjust actions. Also, the use of Moslems was just an example. It could easily be a Mormon church in a county that is overwhemingly evangelical.
I think the case is one of Free Exercise since it is one in which a particularly unpopular church is banned. This would certainly be restricting free exercise without necessarily establishing a different church.
And I do think that the Free Exercise clause and the Establishment clause are flip sides of the same coin. I think that the Founders were quite wise in putting both sides of this into the first amendment. I cannot conceive of Free Exercise being anything but an illusion if the power of civil government is involved in an establishment of religion.