Supreme Court Denies Review In Washington State Pharmacy Case

The U.S. Supreme Court today denied review in Storman's Inc. v. Wiesman,  (Docket No. 15-682, cert. denied 6/28/2016), but over a 15-page dissent to the denial of certiorari written by Justice Alito and joined by Chief Justice Roberts and Justice Thomas. (Order List, scroll to pg. 7). In the case, the 9th Circuit upheld rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require pharmacies to deliver all prescriptions, even if the owner has a religious objection. An individual pharmacist with religious objections may refuse to fill a prescription only if another pharmacist working for the pharmacy does so. (See prior posting.)  In his dissent, Justice Alito argued in part:

there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State.

Washington Post reports on today's action by the Supreme Court. [Thanks to Marty Lederman via Religionlaw for the lead.]

False Online Prayer Website Closed Down

This week Washington state's attorney general Bob Ferguson announced that his office had reached an agreement with Christian Prayer Center, a website that offered online viewers prayers in English or Spanish for amounts ranging from $9 to $35.  According to the AG office's release, the website featured non-existent clergy and false consumer testimonials:

The websites contained fictitious testimonials from consumers using stock photos that claimed they successfully prayed to avoid home foreclosure, deliver a healthy baby, win the lottery, obtain negative results on an HIV test and put cancer into remission....

Between 2011 and 2015, CPC collected more than $7 million from 125,000 consumers nationwide. Some of these consumers were charged repeatedly, resulting in a total of over 400,000 transactions.

The settlement requires the website operators, among other things, to end unfair and deceptive business practices, return funds to consumers and pay attorneys' fees of $500,000.

Divorce Decree Restrictions Violate Mother's Free Exercise Rights

In Black v. Black, (WA App., March 8, 2016), a Washington state appeals court held that a trial court imposed improper conditions on the non-custodial parent in a divorce action.  Charles and Rachelle Black had three children whom they raised in a conservative Christian home and sent to religious-based schools.  After 17 years of marriage, Rachelle informed Charles that she is a lesbian, and two years later filed for divorce. The court's final parenting plan designated Charles as the primary residential parent, awarded him sole decision-making as to the children's religious upbringing and required Rachelle to refrain from having further conversations with the children regarding religion, homosexuality, or other alternative lifestyles. The appeals court reversed, saying:

While the best interests of the children is a trial court’s paramount concern ..., here there is no indication that Rachelle’s prior speech related to her sexual orientation or her religious views ... would cause harm to the children if such speech or conduct occurred in the future. Therefore, we hold that the restrictions are an unconstitutional burden on her freedom of speech and her free exercise of religion. 

RICO Lawsuit Filed Against Pastor and Elder of Defunct Megachurch

A civil RICO lawsuit was filed last week against Mark Driscoll, pastor of the now-closed Seattle, Washington, Mars Hill Church.  At its height, the Mars Hill had expanded to 5 states and drew 13,000 attendees on an average Sunday. Also named in the suit filed by 4 former church members was the church's chief elder, John Sutton Turner.  The complaint (full text) in Jacobsen v. Driscoll, (WD WA, filed 2/29/2016), alleges that defendants solicited contributions from thousands of members for specific charitable purposes and then diverted the funds to other purposes, including fraudulent promotion of Driscoll's book, Real Marriage, and for church expansion. Daily Beast reports on the lawsuit and its background:

Mars Hill closed its doors in 2014, following a number of scandals involving allegations of Driscoll’s bullying and spiritual abuse of members and church leaders, misogyny, and homophobia espoused on a church message board, plagiarism, and misuse of church funds—which this lawsuit seeks to redress. Since its closure, the details of the organization’s dissolution have been opaque, with little public accounting, and a group of remaining leaders who have refused to comment on who gets what from the failed enterprise 

Cert Filed In Challenge By Pharmacies To Required Filling of Emergency Contraception RX

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Stormans Inc. v. Wiesman, (cert. filed, 1/4/2016).  In the case, the U.S. 9th Circuit Court of Appeals upheld rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require pharmacies to deliver all prescription medications, even if the owner has a religious objection. An individual pharmacist with religious objections may refuse to fill a prescription only if another pharmacist working for the pharmacy does so. (See prior posting.) ADF issued a press release announcing the filing of the petition.

Washington Football Coach Is Latest Focus In Battle Over Prayer At School Activities

An AP report yesterday focused on Bremerton, Washington, High School assistant football coach Joe Kennedy who is quickly becoming the latest focus in the ongoing battle over prayer at public school events.  Kennedy has been praying mid-field at the end of the game since 2008, but his actions have not become a cause for controversy until last month. Needless to say, Kennedy and school officials have starkly differing narratives.

Kennedy's lawyers, the Liberty Institute, say that Kennedy is merely engaging in a personal faith practice, in which he has often been voluntarily joined by a majority of his team, other coaches and the opposing team. The school district, however, says that coaches still have duties after the game is over, and permitting Kennedy to engage in a public religious display in the midst of his duties would amount to district endorsement of religion. He has now been placed on paid administrative leave. The school district says it has offered to accommodate Kennedy by providing him a private location for him to use to pray in a way that does not interfere with his duties.  Kennedy's lawyer responds: "When it comes to religious freedom in the country, that's never been the law, that you can have religious expression, but you have to hide it somewhere." (Bremerton Patriot.)  Apparently Kennedy plans to sue claiming a denial of religious accommodation.

Meanwhile, others are getting into the act.  In October, the Freedom From Religion Foundation sent a letter to the Bremerton superintendent supporting the school district's position. (Press release.) As reported by the Christian Post, 47 members of Congress this week signed a letter (full text) supporting Kennedy. And (as reported by RT) this week the Seattle Chapter of the Satanic Temple, saying that the school has essentially turned the post-game field into a public forum for religion, wrote to school officials (full text of letter) saying: "In light of football coach Joe Kennedy’s public prayer on the Bremerton High football field at the October 18 game, The Satanic Temple of Seattle requests permission to also perform a public Satanic invocation on the football field after the next football game, at the behest of a Bremerton High student."

9th Circuit Rejects Free Exercise Challenge By Pharmacies To Required Filling of Emergency Contraception RX

In Stormans, Inc. v. Wiesman, (9th Cir., July 23, 2015), the U.S. 9th Circuit Court of Appeals upheld against constitutional challenge rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require a pharmacy to deliver all prescription medications, even if the owner of the pharmacy has a religious objection. An individual pharmacist with religious objections may refuse to fill the prescription if another pharmacist working for the pharmacy does so.

The court held that these rules are both facially and operationally neutral, and are generally applicable, so that  heightened scrutiny need not be applied to plaintiffs' free exercise challenge:

The possibility that pharmacies whose owners object to the distribution of emergency contraception for religious reasons may be burdened disproportionately does not undermine the rules’ neutrality.

The court also rejected plaintiffs' substantive due process challenge, rejecting the argument that there is a fundamental liberty interest in owning, operating or working at a licensed professional business free from regulations requiring activities that one sincerely believes lead to the taking of human life. Alliance Defense Fund immediately announced that it would appeal the court's decision. The Olympian reports on the 9th Circuit's decision.

Seattle Mayor Recommends Increasing Access To Sharia-Compliant Housing Loans

According to yesterday's Puget Sound Business Journal, a committee appointed by Seattle (WA) Mayor Ed Murray to come up with recommendations for increasing housing in Seattle has released its report. One of its recommendations is to find ways to increase access to Sharia-compliant housing loans. It is estimated that some 200 people are not borrowing to buy houses because of the unavailability of loans structured to avoid the interest prohibitions of Islamic law.

Court Says Florist Violated Washington Public Accommodation Law In Refusing Flowers For Same-Sex Wedding

In State of Washington v. Arlene's Flowers, Inc., (WA Super. Ct., Feb. 18, 2015), a Washington state trial court held that a florist shop violated the Washington Law Against Discrimination and the state's Consumer Protection Act when the shop's owner advised a customer that for religious reasons she could not provide flower arrangements for his same-sex wedding ceremony. (See prior related posting.) The court rejected defendants' argument that application of the law to require the shop to provide flower arrangements for a same-sex wedding violates their free expression and free exercise rights.  Addressing the 1st Amendment speech claim, the court said:

Defendants offer no persuasive authority in support of a free speech exception (be it creative, artistic, or otherwise) to anti-discrimination laws applied to public accommodations.

Defendants' strongest constitutional argument turned on the Washington state constitution's free exercise clause, which gives greater protection than the 1st Amendment.  However the court rejected defendants' claims, concluding that even if the laws impose a substantial burden on defendants' religious exercise, the state has a compelling interest in combating discrimination in public accommodations. The court went on to reject defendants' argument that a more narrowly tailored approach would allow defendants to deny goods and services on the basis of sexual orientation and merely refer the customer to a non-discriminating business.  The court said: "This rule would, of course, defeat the purpose of combatting discrimination...."

Washington state Attorney General Bob Ferguson welcomed the decision, saying: "The law is clear: If you choose to provide a service to couples of the opposite sex, you must provide the same service to same-sex couples."

City's Solicitiation Ordinance Held Too Restrictive

In United States Mission Corp. v. City of Mercer Island, (WD WA, Feb. 10, 2015), a Washington federal district court granted a preliminary injunction against enforcement of a Seattle suburb's solicitation ordinance in a suit by a Christian religious organization.  The Mission operates residential facilities for the homeless, and requires its residents to engage in door-to-door religious solicitation on its behalf. The challenged ordinance bars door-to-door solicitations (but not proselytizing without soliciting funds) after 7:00 p.m.  The Mission engages in residential solicitations between 5:00 p.m. and 8:00 p.m. on weekdays. The court held that prior cases "have continuously found that curfews prior to 9:00 p.m. are not sufficiently connected to a municipality's interest in crime prevention" to meet the compelling interest- least restrictive means requirement for content-based regulation of speech.

According to the Mercer Island Reporter, City Council will meet on Feb. 23 to amend the solicitation ordinance to comply with the court's holding.

Washington Supreme Court Says Anti-Discrimination Law Requires Reasonable Accommodation of Religious Beliefs

In Kumar v. Gate Gourmet, Inc., (WA Sup. Ct., May 22, 2014), the Washington state Supreme Court, in a 5-4 decision, held that Washington's Law Against Discrimination implies a requirement that employers reasonably accommodate employees' religious practices. It went on to hold that the employees of an airport food service company stated a prima facie claim for failure to reasonably accommodate their religious dietary needs. For security reasons the employees could not bring their own food to work or leave for lunch, so the company furnished meals. However employees allege that the beef-pork meatballs served did not meet their religious requirements, and that when they informed the company it initially deceived them into eating food that violated their religious beliefs and then refused to accept any of the employees' proposed accommodations. The majority found that the employees had also adequately stated claims for disparate impact, battery, and negligent infliction of emotional distress.

Justice Madsen's dissent argued that implying a cause of action for reasonable accommodation improperly encroaches on the legislature's function. Even if it is implied, it should not be applied on these facts because there was no actual or threatened adverse employment action taken against the employees.

New Washington State Supreme Court Justice Has Extensive Religious Background

Washington state Governor Jay Inslee announced last week that he has appointed state trial court judge Mary Yu to the Washington state Supreme Court to fill a vacancy created by the retirement of Justice Jim Johnson.  While the media (Seattle Times article) has focused on the fact that Yu is the first openly gay, and first Asian-American justice on the Washington Supreme Court, less attention has been given to her academic training in theology and her work experience prior to law school in the Catholic Church. Yu received a bachelor's degree in religious studies from Dominican University in River Forest, Ill., in 1979.  She then went to work for the Office of Peace and Justice of the Chicago Catholic Archdiocese, eventually becoming director of the office.  She received a master's degree in theology from Loyola University in 1989, and moved to Washington state to work at the Washington state Catholic Bishop's Conference. However in 1990 she enrolled in Notre Dame law school, also working as an assistant rector in an undergraduate women's dormitory. (Biography from Wikipedia, Equal Justice Newsletter).

Washington Legislature Passes Bill Giving Public Employees, Students 2 Days Off For Religious Holidays

Yesterday the Washington state legislature passed and sent to the governor for signature SB 5173 that assures state employees and public school students two days per year off for religious holidays. Public employees, including employees of school districts and public colleges, under the bill are entitled to "two unpaid holidays per calendar year for a reason of faith or conscience or an organized activity conducted under the auspices of a religious denomination, church, or religious organization."

The bill also provides that a student is excused from attending school "subject to approval by the student's parent for a reason of faith or conscience, or an organized activity conducted under the auspices of a religious denomination, church, or religious organization, for up to two days per school year
without any penalty." However it goes on to provide that "such absences may not mandate school closures." The bill passed 64-32 in the House, and 49-0 in the Senate. Yesterday's Bellingham Herald reports on the bill's passage.

In Fragmented Decision, Washington Supreme Court Finds Discrimination Exemption For Religious Non-Profits Unconstitutional As Applied

The Washington state Supreme Court yesterday answered certified questions from a federal district court in a fragmented decision.  In  Ockletree v. Franciscan Health System, (SA Sup. Ct., Feb. 6, 2014), the state's high court responded to two questions of state constitutional law: (1) Does the exclusion in the Washington Law Against Discrimination for religious non-profit organizations violate the state constitution's equal privileges and immunities clause or its free exercise clause. (2) If not, is the exclusion unconstitutional when applied to prevent a suit by an employee who claims discrimination unrelated to any religious purpose, practice or activity of defendant.  The suit involved a claim of discrimination on the basis of race and disability in the firing of a security guard by a Catholic hospital.

In the lead opinion, 4 justices answered the first certified question in the negative, concluding that "WLAD's definition of 'employe'... does not involve a privilege or immunity" and "does not involve the appropriation of money or application of property, and therefore does not fall within the prohibition of article I, section 11 's establishment clause."

Dissenting, 4 justices disagreed, saying: "WLAD grants religious nonprofits immunity from a right of action that belongs to all Washington citizens by virtue of citizenship. Under the privileges and immunities clause, the legislature cannot grant such immunity to one class of corporations unless there are reasonable grounds for excluding others. Because WLAD grants immunity from discrimination claims that are unrelated to the employer's religious beliefs, it is not necessary to alleviate a concrete and substantial burden on religious exercise."

In a separate opinion, Justice Wiggins provided a 5th vote for answering the first certified question in the negative, concluding that the exclusion is not unconstitutional on its face.  However he also provided a fifth vote for answering the second certified question in the affirmative, but only after insisting that the second certified question needs to be reframed, saying:

The original second certified question improperly focused on whether the employer discriminated on religious grounds, which requires courts to engage in excessive entanglement with religious doctrines and practices. Washington courts would be asked to determine what constitutes a particular religion's purpose, practice, and activity and determine whether the reason for the discrimination is related. This is an intrusive inquiry into religious doctrine. 

When the exemption is applied to a person whose job qualifications and responsibilities are unrelated to religion, there is no reasonable ground for distinguishing between a religious organization and a purely secular organization. Therefore, I agree with the dissent that the exemption is invalid when applied to an employee like Ockletree, assuming that there is no relationship between his duties and religion or religious practices.

(See prior related posting.) AP reports on the decision.