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Stormans v. Wiesman: Paths to Strict Scrutiny in Religious Free Exercise Cases

The Ninth Circuit treated the Stormans case as unremarkable, finding that the challenged regulations had just some secular exemptions, and then holding that if there were good reasons for the secular exemptions, they did not undermine the regulations’ general applicability. This result is not only wrong, it is in conflict with results reached by other circuit courts. The Stormans case is therefore a proper vehicle for the Supreme Court to give guidance to lower courts.

The Ninth Circuit’s opinion referenced one fact that by itself should have put this case far down the path to strict scrutiny: “The rules require pharmacies to deliver prescription medications, but they also carve out several enumerated exemptions.” Yet instead of asking whether any of these exemptions undermined the state’s interest in delivery of drugs, the Ninth Circuit engaged in a lengthy effort to explain away those secular exemptions, concluding at one point that “the rules’ delivery requirement applies to all objections to delivery that do not fall within an exemption.” The court’s italicized “all” is entirely circular; it just means the law applies to everything it applies to. And because the court intended to refer only to explicit exemptions, the statement is also inaccurate. The district court found that there were many exemptions not stated in the regulations’ text.

Courts need not engage in such mental gymnastics. An unambiguous ruling from the Supreme Court, setting forth more explicitly what it indicated in Smith and Lukumi, will ensure that they do not. A quarter century after Smith and Lukumi, it is time.

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