Justice Alito Calls Court’s Rejection of Religious-Liberty Case an ‘Ominous Sign’


In what a dissent by Justice Samuel Alito called an “ominous sign,” the Supreme Court has declined to hear a case that many observers had tagged as having elements essential to religious liberty.

As Hamodia reported last July, when plaintiffs’ claims were ruled against by a federal appellate court, the case in question, Stormans v. Wiesman, involves a rule set by the Washington State Board of Pharmacy which requires businesses to supply pharmaceuticals that some find objectionable on religious grounds. Ralph’s Thriftway, which has been operated by the Stormans family for four generations, refers customers seeking the goods to one of 30 other stores within a five-mile radius that do carry the drugs, but is facing cancelation of its pharmacy license for refusing to stock the products themselves.

Plaintiffs claimed the state measure is discriminatory, and cited that many other retailers are permitted to make similar decisions based on business and convenience concerns.

The High Court accepts a very small percentage of cases and it is highly unusual for a justice to pen a dissent to a decision to reject an application for certiorari, or permission to be heard by the court. Nevertheless, Chief Justice John Roberts and Justice Clarence Thomas also signed on to the sharply worded 15-page protest.

“There is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs … are out of step with prevailing opinion in the state. Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time. 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,” read the opening of the dissent.

Justice Alito also noted that the Washington State’s regulations “are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications” and says there are “strong reasons to doubt whether the regulations were adopted for — or that they actually serve—any legitimate purpose.”

Alliance Defending Freedom Senior Counsel Kristen Waggoner, who represented the plaintiffs, said in response to the court’s rejection, “We had hoped that the U.S. Supreme Court would take this opportunity to reaffirm…long-held principles [of religious liberty]. The State of Washington allows pharmacists to refer customers for just about any reason — except reasons of conscience.”

She noted that 49 other states allow conscience-based referrals, which are supported by the American Pharmacists Association, the Washington Pharmacy Association, and more than 34 other pharmacy associations.

Agudath Israel of America and the Orthodox Union had filed amicus briefs asking the Supreme Court to place Stormans v. Wiesman on its docket. Other petitions in support of the plaintiff’s claims were submitted by 43 members of Congress; 13 state attorneys general; 29 notable legal scholars; more than 4,600 individual health care professionals; and 38 professional pharmacy associations, including the nation’s largest, the American Pharmacists Association.

Rabbi Chaim Dovid Zwiebel, Agudath Israel’s executive vice president, said it was “gratifying” that the dissenting justices appreciated “the seriousness of the religious freedom issues the case presented,” but called the majority’s rejection “perplexing, and dismaying.”

“If religious Americans cannot rely on the Supreme Court to protect their rights in cases like this, who then will stand up for the First Amendment’s protection for the free exercise of religion?” he said. “One can only hope that the High Court’s refusal to review this case is not a harbinger of other infringements on religious liberty to come.”