Nos.

12-35221, 12-35223
_____________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________________________________________________
STORMANS, INC., DOING BUSINESS AS RALPHS THRIFTWAY, ET AL.,
Plaintiffs-Appellees,
v.
MARY SELECKY, ET AL.,
Defendants-Appellants,
and
JUDITH BILLINGS, ET AL.,
Intervenors-Appellants
_____________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
(NO. 3:07-CV-05374-RBL) HON. RONALD B. LEIGHTON
_____________________________________________________________
BRIEF OF AGUDATH ISRAEL OF AMERICA, THE NATIONAL
COUNCIL OF YOUNG ISRAEL, AND THE JUDICIAL EDUCATION
PROJECT AS AMICI CURIAE IN SUPPORT OF PLAINTIFFSAPPELLEES
_____________________________________________________________

CARRIE L. SEVERINO
AMMON SIMON
JUDICIAL EDUCATION PROJECT
722 12th St. NW, Fourth Floor
Washington, DC 20002
20005
Counsel for Amici Curiae

FRAP 26.1 CORPORATE DISCLOSURE STATEMENT

None of the amici curiae associated with this brief is a publicly-held

corporation, is owned by a publicly-held corporation, or issues stock.

STATEMENT OF COMPLIANCE WITH FRAP 29

All parties have consented to the filing of this Brief. FRAP 29(a).

No partys counsel authored this Brief in whole or in part; no party or

partys counsel contributed money that was intended to fund preparing or
submitting the Brief; and no person other than Amicus Curiae or their counsel
contributed money that was intended to fund preparing or submitting the Brief.
FRAP 29(c)(5).

TABLE OF CONTENTS

INTEREST OF AMICI ................................................................................ 1

ARGUMENT ................................................................................................. 3
I. Selective Enforcement of an Otherwise Neutral and Generally
applicable Law on the Basis of Religion Violates the Free Exercise
Clause.......................................................................................................... 3
a. Disproportionate Enforcement of a Law Against Religious
Individuals Supports a Finding of Discriminatory Intent and
Triggers Strict Scrutiny ......................................................................... 4
b. Defendants Have Misconstrued the Case Law on this Issue ......... 9
i. A Selective Enforcement Claim, in the Free Exercise Context, Does
Not Require Proving Both Discriminatory Effect and Discriminatory
Purpose. ................................................................................................ 9
ii. Exemptions Trigger First Amendment Scrutiny If the Secular
Conduct Substantially Undermines the Governmental Interest ......... 11
iii. Allowing Religious Individuals to Invoke the Secular Exemptions
is Irrelevant. ........................................................................................ 14
II. The Board Has Selectively Enforced the Regulations Against
Religion ..................................................................................................... 15
a. The Board Has Enforced the Regulations Only Against Plaintiffs
and Only in the Context of Religious Objections .............................. 15
b. The Exemptions to the Delivery Rule Grant the Government
Excessive Discretion and Provide a Fig Leaf to Mask Selective
Enforcement ......................................................................................... 19
i. Individualized Exemptions and Broad Discretion Invite
Discriminatory Enforcement. ............................................................. 19
i

ii. The Regulations Are Overly Broad and Designed to Lead to

Selective Enforcement Against Religious Objectors. ........................ 23
iii. Exemptions to the Delivery Rule Impermissibly Privilege Certain
Religious Beliefs over Others............................................................. 25
c. The Boards Claim of Complaint-Only Enforcement Does Not
Render the Regulations Generally Applicable .................................. 25
i. The Boards Justification of Its Enforcement Policy Cannot Be
Credited. ............................................................................................. 26
ii. The Boards Enforcement Has Not Been Based on Complaints
Alone. ................................................................................................. 26
iii. Even a Rigorous Complaint-Only Enforcement Policy Provides an
Avenue for Selective Enforcement..................................................... 27
1. A Complaint-Based Enforcement Policy Can be Readily CoOpted by Special Interest Groups. .................................................. 27
2. A Complaint-Based Enforcement Process Tends to Target
Minority Groups. ............................................................................. 28
3. A Complaint-Based Enforcement Process Impermissibly
Delegates Government Enforcement Decisions. ............................ 31
d. The Governors Manipulation of the Boards Rulemaking
Process Supports a Finding of a Religious Discrimination even
Under the State Defendants Erroneous Test. .................................. 32
CONCLUSION ........................................................................................... 34
CERTIFICATE OF COMPLIANCE ....................................................... 36
CERTIFICATE OF SERVICE ................................................................. 37

ii

TABLE OF AUTHORITIES

Cases
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.
252 (1977) ............................................................................................. 7, 16
Blackhawk v. Commonwealth of Pennsylvania, 381 F.3d 202 (3d Cir. 2004)
............................................................................................................. 20, 21
Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009) ................................. 6, 7, 8
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520
(1993) ................................................................................................. passim
Desert Outdoor Advertising, Inc. v. The City of Moreno Valley, 103 F.3d 814
(9th Cir. 1996) ........................................................................................... 22
Employment Division v. Smith, 494 U.S. 872 (1990) ............................... 3, 20
Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999) . 5,
12, 15, 20
Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978 (9th
Cir. 2006)............................................................................................. 23, 31
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct.
694 (2012) ................................................................................................... 9
Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982)............................... 33, 34
Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th
Cir. 2009)................................................................................................... 23
Morr-Fitz, Inc. v. Blagojevich, 2011 WL 1338081, No. 2005-CH-000495
(Ill. Cir. Ct. 7th Jud. Cir. Apr. 5th, 2011)............................................ 13, 14
Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) ......................... 22
Stormans, Inc. v. Selecky, 854 F. Supp. 2d 925 (W.D. Wash. 2012) .... passim
iii

Tenafly Eruv Assn v. Tenafly, 309 F.3d 144 (3d Cir. 2002) ................ passim
Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707
(1981) ........................................................................................................ 15
Statutes
U.S. CONST. amend. I. ..................................................................................... 3
WASH. ADMIN. CODE 246-869-010(1) (2007) ........................................... 23
WASH. REV. CODE 70.245.190(1)(d) ......................................................... 24
WASH. REV. CODE 9.02.150 ....................................................................... 24
Other Authorities
146 Cong. Rec. S774-01 (daily ed. July 27, 2000)................................. 21, 28
Douglas Laycock and Luke W. Goodrich, RLUIPA: Necessary, Modest, and
Underenforced, 39 FORDHAM URB. L.J. 1021 (May 2012)....................... 21
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW (3d ed. 2000) ......... 9
Letter from Thomas Jefferson to the Methodist Episcopal Church at New
London, Connecticut (Feb. 4, 1809) ......................................................... 12

iv

INTEREST OF AMICI

Agudath Israel of America (Agudath Israel) is a national grassroots

Orthodox Jewish movement with tens of thousands of members across the
United States. It was founded in 1922 as the American arm of the worldwide Agudath Israel movement, for the purpose of uniting the American
Orthodox Jewish community under its organizational banner. The movement
is led, and its policies determined, by a group of prominent senior Orthodox
rabbinical figures respected broadly as outstanding scholars of Jewish law
and decisors of Jewish policy.
Agudath Israel regularly intervenes at all levels of government
federal, state and local; legislative, administrative and judicial (including
through the submission of or participation in amicus curiae briefs) to
advocate and protect the interests of the Orthodox Jewish community in the
United States. Agudath Israel is particularly assiduous in seeking to prevent
any government action that, inadvertently or otherwise, might restrict the
ability of Orthodox Jews to practice its religion freely, or to participate fully
and equally in the public life of our country.

The National Council of Young Israel (NCYI) is the umbrella

organization for over 300 Young Israel branch synagogues with over 25,000
families within its membership throughout North America and Israel. It is
one of the premier organizations representing the Orthodox Jewish
community, its challenges and needs, and is involved in issues that face the
greater Jewish community in North America and Israel. NCYI assists its
branches in programming and planning through its Departments of
Synagogue Services, Rabbinic Services, Womens Programming, Jewish
Education, Youth Services, Publications and Political Action. It is
represented in Israel through its office in Jerusalem.
Amicus Curiae the Judicial Education Project (JEP) is dedicated to
strengthening liberty and justice in America through defending the
Constitution as envisioned by its Framers: creating a federal government of
defined and limited powers, dedicated to the rule of law and supported by a
fair and impartial judiciary. JEP educates citizens about these constitutional
principles, and focuses on issues such as judges role in our democracy, how
they construe the Constitution, and the impact of the judiciary on our
society. JEPs educational efforts are conducted through various outlets,
including print, broadcast, and internet media.
2

ARGUMENT
I. Selective Enforcement of an Otherwise Neutral and Generally
applicable Law on the Basis of Religion Violates the Free Exercise
Clause
The Free Exercise Clause of the First Amendment provides that Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof . . . . U.S. CONST. amend. I. The Supreme Court has
interpreted this to mean that laws that burden religious exercise must be
neutral and generally applicable towards religion or withstand strict scrutiny,
which requires a narrow tailoring to advance a compelling government
interest. See Employment Division v. Smith, 494 U.S. 872, 879 (1990);
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
531 (1993). While the contours of neutrality and general applicability are
not always clear, at a minimum, strict scrutiny is triggered if a law regulates
or prohibits conduct because it is undertaken for religious reasons. Lukumi,
508 U.S. at 532 (citations omitted). But even where a law is facially neutral,
[f]acial neutrality is not determinative because otherwise neutral laws may
still constitute covert suppression of particular religious beliefs and subtle
departures from neutrality in contravention of the Constitution, as in the
3

case of selective enforcement of a law based on religious identity or practice.

Id. at 534 (citations and internal quotation marks omitted); see also id.
(Official action that targets religious conduct for distinctive treatment
cannot be shielded by mere compliance with the requirement of facial
neutrality.).

a. Disproportionate Enforcement of a Law Against Religious

Individuals Supports a Finding of Discriminatory Intent
and Triggers Strict Scrutiny
Selective enforcement of a law to disproportionately affect certain
religious believers or practices converts an otherwise neutral and generally
applicable law into an impermissibly discriminatory one, because, [a]part
from the text, the effect of a law in its real operation is strong evidence of its
object. Lukumi, 508 U.S. at 535 (emphasis added); see also id. at 557
(Scalia, J., concurring) (strict scrutiny must be given to laws that, though
neutral in their terms, through their design, construction, or enforcement
target the practices of a particular religion for discriminatory treatment.).
Accordingly, a governments discretion in law enforcement cannot exempt
some secularly motivated conduct but not comparable religiously motivated
conduct. Tenafly Eruv Assn v. Tenafly, 309 F.3d 144, 166 (3d Cir. 2002)
(citations omitted). This would create the impermissible judgment that
4

secular motivations are more important than religious motivations.

Fraternal Order of Police v. City of Newark, 170 F.3d 359, 365 (3d Cir.
1999) (Alito, J.).
Tenafly Eruv Assn v. Tenafly, describes the basic mechanism of
selective enforcement: that enforcement of a law against religiouslymotivated violations while failing to enforce similar secularly-motivated
violations signals discriminatory intent and triggers strict scrutiny. Tenafly
involved a city ordinance that prohibited objects on utility poles and other
public places with no exemptions. The law was rarely enforced, as the city
failed to remove from utility poles and property objects ranging from house
numbers to orange ribbons used to express a political statement. Despite the
numerous secular exemptions in practice, the city did not provide similar
leeway for Orthodox Jews who had violated the ordinance by affixing small,
virtually imperceptible pieces of black plastic called lechis to public utility
poles. These lechis carry religious significance for Orthodox Jews and assist
them in discharging their Sabbath obligations.
The strict application of the law against religiously-motivated
violations contrasted sharply with the failure to enforce the law against
secularly-motivated violations and constituted an impermissible judgment
5

that religious objections to the law were of a lesser import than

nonreligious reasons, singling out religiously motivated conduct for
discriminatory treatment. Tenafly, 309 F.3d at 168 (citations and internal
quotation marks omitted). The citys behavior was sufficiently suggestive
of discriminatory intent, to support a conclusion that the law was not
neutral and generally applicable, triggering strict scrutiny. Id. at 168
(citation and internal quotation marks omitted).
Similar to Tenafly, Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009)
(en banc), demonstrates how an otherwise neutral and generally applicable
rule that is interpreted and enforced to target a particular religious practice is
thereby rendered impermissibly discriminatory. While Bloch takes place in
the context of the Fair Housing Act and relies in large part on equal
protection analysis, the Supreme Court has explained that Free Exercise
analysis of discriminatory laws draws on the same principles at work in such
cases, including the use of direct and circumstantial evidence to determine
discriminatory intent. Lukumi, 508 U.S. at 540 (citing Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977)).
Bloch involved a condo associations facially neutral rule, which
prohibited the presence of objects of any sort outside a units door. 587
6

F.3d 771, 773 (7th Cir. 2009). The rule, originally used to maintain clear
hallways, was expanded to also keep doorposts free of various objects, even
those that did not interfere with hallway movement. Swept away in the
enforcement of this newly expanded interpretation of the rule were mezuzot,
small, unobtrusive rectangular casings, which observant Jews are religiously
obligated to affix on their external doorposts. While enforcing the rule
strictly against the Jewish residents, the condominium association
simultaneously ignored other, more intrusive, placements of objects in the
hallway including a coat rack and a table. Bloch, 587 F.3d at 786.
An en-banc panel of the Seventh Circuit reversed a grant of summary
judgment that had upheld the rule. The panel held that a fact-finder could
conclude that the condominium associations interpretation and enforcement
of its otherwise neutral and generally applicable rule intentionally targeted
religion. See Bloch, 587 F.3d at 786-87. Although the association could
have indifferently created a rule to address a neutral problem, then refused to
exempt religious individuals for the sake of consistency, re-interpreting the
rule with Jews in mind to attack their religious practice would merit strict
scrutiny. See id. at 785.

Thus, where an otherwise neutral and generally applicable law is

applied disproportionately against particular religious groupswhether by
judging secular motivations as superior to religious ones or in a way
suggesting the targeting of a religious group for disfavorthe law is subject
to strict scrutiny.

b. Defendants Have Misconstrued the Case Law on this Issue

i. A Selective Enforcement Claim, in the Free Exercise
Context, Does Not Require Proving Both
Discriminatory Effect and Discriminatory Purpose.
The State Defendants argue that selective enforcement claims in the
Free Exercise context require proving both a discriminatory effect and
discriminatory purpose as under the Equal Protection Clause. State Br. at
49. But this would make the Free Exercise Clause superfluous. Cf.
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct.
694, 706 (2012) (explaining that the Free Exercise Clause must add uniquely
religious protections not already guaranteed by the rest of the First
Amendment). The test for discrimination under the Free Exercise Clause is
actually either/or not both/and with regard to the elements of selective
enforcement. See Tenafly, 309 F.3d at 168 n. 30 (We note that, in
determining the appropriate standard to apply, we do not believe it necessary
to consider the subjective motivations of the Council members who voted to
remove the eruv. . . . [T]he objective effects of the Borough's enforcement
of Ordinance 691 are sufficient for us to conclude that it is not being applied
neutrally against the eruv.); see also LAURENCE H. TRIBE, AMERICAN
CONSTITUTIONAL LAW 5-16, at 956 (3d ed. 2000) (Under Smith, a law
9

that is not neutral or that is not generally applicable can violate the Free
Exercise Clause without regard to the motives of those who enacted the
measure.)).
Indeed, in Tenafly, it was sufficient to examine the objective effects
of the Boroughs enforcement of [the] Ordinance . . . to conclude that it is
not being applied neutrally against the eruv. Tenafly, 309 F.3d at 168 n. 30.
Separately proving subjective discriminatory intent was unnecessary, as a
court can infer a discriminatory purpose from the the effect of a law in its
real operation . . . [as] strong evidence of its object. Lukumi, 508 U.S. at
535. So, in the Free Exercise context, the Supreme Court has endorsed
determining a laws real operation as a legitimate mechanism for
evaluating a laws discriminatory purpose.

10

ii. Exemptions Trigger First Amendment Scrutiny If

the Secular Conduct Substantially Undermines the
Governmental Interest
The State Defendants offer a cramped reading of Lukumi, where
religious exemptions are required by the First Amendment only when
secular exemptions are permitted based upon personal biases, dislikes, or
prejudices. State Br. at 47. Thus, the State contends that as long as the
Stocking and Delivery Rules (Regulations) do not permit exemptions for
secular prejudices, they are generally applicable. Id. This is not what
Lukumi teaches. Instead, Lukumi asks whether the government fail[s] to
prohibit non-religious conduct that endangers [the governmental] interests in
a similar or greater degree than the prohibited religious conduct. Lukumi,
508 U.S. at 543. The question is not whether the secular and religious
conduct has a similar motivation, but whether the conduct has a similar
affect on the governmental interest.
In Lukumi, the citys enforcement of an anti-slaughter ordinance
implicitly granted exemptions for hunting, slaughtering animals for food,
and even using live rabbits to train greyhounds. Tenafly, 309 F.3d at 166
(citing Lukumi, 508 U.S. at 537). These exempted activities were very
different from the Santeria practitioners ritual sacrifice of goats and
11

chickens, but the latter activity was nevertheless considered comparable, and
therefore protected, under Lukumi. If the State Defendants were correct, on
the other hand, the only exemption that would have required extension to
Santeria practitioners would be one for secular ritual slaughter (if such a
thing exists). Of course, the Supreme Court did not look for identical
secular and religious motivations before concluding that ruling out religious
exemptions singled out religious practice . . . for discriminatory treatment.
Lukumi, 508 U.S. at 538.
Fraternal Order of Police v. City of Newark also involved First
Amendment scrutiny for secular exemptions where the motivation for the
conduct was much different from the proposed religious exemptions. There,
a police departments employee dress code banned beards, including those
worn for religious purposes, except when they were necessary for medical
conditions. This too showed that the government had decid[ed] that secular
motivations are more important than religious motivations. Fraternal Order
of Police, 170 F.3d at 365 (3rd Cir. 1999). By any standard, a medical
condition is not merely a personal bia[s], dislik[e], or prejudic[e]. See
State Br. at 47. An employee with a medical condition has no choice but to
attend to it. But what the State fails to consider, and what the Free Exercise
12

Clause requires it to consider, is that religious conscience is just as

demanding and deserving of respect. Letter from Thomas Jefferson to the
Methodist Episcopal Church at New London, Connecticut (Feb. 4, 1809)
(No provision in our Constitution ought to be dearer to man than that which
protects the rights of conscience against the enterprises of the civil
authority.). Thus, the court still ruled the secular motivation of medical
care was on par with a religious objection to shaving, and ruled that the law
merited strict scrutiny.
Morr-Fitz, Inc. v. Blagojevich, 2011 WL 1338081, No. 2005-CH000495 (Ill. Cir. Ct. 7th Jud. Cir. Apr. 5th, 2011), is also instructive. It
involved a parallel law to the Regulations, which required pharmacists and
pharmacies to dispense emergency contraceptives. It was subject to a host
of exceptions for what the government called common sense business
realities, including (1) lack of specialized equipment and expertise, (2) if
the pharmacist has a medical or legal concern, (3) inability to pay, or (4) a
pharmacys business niche. Morr-Fitz, 2010 WL 1338081 at *5. There were
no exemptions for religious objectors. None of the secular exemptionsall
of which resembled those in the Regulationslooked like personal biases,
but instead had similar economic justifications to the Boards regulatory
13

exemptions. Despite this, the court found that the presence of common
sense business [exemptions], without a corollary religious exemption, made
the law fall under strict scrutiny. Id. at *6.

iii. Allowing Religious Individuals to Invoke the Secular

Exemptions is Irrelevant.
The State Defendants also suggest that the First Amendment only
requires that legal exemptions be identical for licensees with religious
objections as for licensees without religious objections. State Br. at 48.
This argument suggests that the State can fulfill its duties under the Free
Exercise Clause so long as it does not impose religious tests on pharmacists
and pharmacies seeking secular regulatory exemptions otherwise available
to all. But the Free Exercise Clause also bars covert suppression of
particular religious beliefs and subtle departures from neutrality. Lukumi,
at 534.
Thus, contrary to the State Defendants suggestion, a rule need not bar
religious individuals from a specific secular exemption they otherwise
qualify for to violate the First Amendment. For example, Quakers who
object to war also enjoy the secular exemption from the draft for college
students. But they need not enroll in school to avoid military service rather
14

than relying on a distinct religious exemption. Thomas v. Review Bd. of

Indiana Employment Sec. Div., 450 U.S. 707 (1981), involving a facially
neutral statute that provided for government unemployment benefits,
demonstrates this. There, Indiana denied unemployment benefits to the
plaintiff, a Jehovah's Witness who left his job for conscience reasons rather
than being forced to manufacture weapons. Even though the plaintiff could
have received benefits if he also found a good cause to leave his job, the
denial still violated his First Amendment rights. See Thomas, 450 U.S. at
709.
Similarly, Fraternal Order of Police involved a police departments
ordinance that required officers to shave their beards. The law fell under
strict scrutinyit was sufficiently suggestive of discriminatory intent that
the law failed to provide an exemption for religious purposes, but provided
one for medical purposes. Fraternal Order of Police, 170 F.3d at 365. Like
Thomas, it was irrelevant that religious objectors to beards could have
avoided wearing one by invoking medical reasons.

II. The Board Has Selectively Enforced the Regulations Against

Religion
a. The Board Has Enforced the Regulations Only Against
Plaintiffs and Only in the Context of Religious Objections
15

The governments enforcement practice can provide evidence of

discriminatory intent for a law that burdens religious exercise. Lukumi, 508
U.S. at 540 (citing Arlington Heights, 429 U.S. at 266). It is hard to imagine
a more obvious example of selective enforcement than in the instant case.
Over the course of 40 years, pharmacies have never been cited for
violating the Stocking Rule, except for a failure to stock Plan B. Stormans,
Inc. v. Selecky, 854 F. Supp. 2d 925, 934 19 (W.D. Wash. 2012). This is
striking given that the Board of Pharmacy (Board) and the pharmacy
community have acknowledged that Stocking Rule violations are
widespread, and occur for a host of business, economic, and convenience
reasons. See id. at 953 107 (identifying 16 common reasons for which
pharmacies routinely decline to stock certain drugs). The Board inspects all
Washington pharmacies bi-annually, investigating compliance with every
other relevant regulation but the Stocking Rule. Id. at 956, 960 114, 133.
Despite the Boards refusal to investigate widespread Stocking Rule
violations, it invoked the Rule to initiate a complaint against Plaintiff
Ralphs, the first instance of such a complaint since the Rules adoption in
1967. This occurred during an orchestrated test-shopping campaign by
Planned Parenthood and allied groups, where complaints were filed not only
16

against Ralphs, but against three other pharmacy chains. Id. at 979-80
232, 238. The complaints were all for failure to carry Plan B. Id. at 980
238. Despite this, the Board still managed to focus exclusively on religious
objections to Plan B. It dismissed the complaints against the other
pharmacies, claiming that their Stocking Rule violations were for temporary
business reasons. Id. at 963 152. At the same time, it refused to dismiss
the complaint against Ralphs for violating the Stocking Rule for religious
reasons.
Since the passage of the Delivery Rule in 2007, the Boards
enforcement has been single-mindedly focused on religious objectors to
emergency contraception, despite the Rules alleged neutrality. The District
Court found that the only conduct that has been actively investigated and
treated as a violation of the Regulations is Plaintiffs conscientious
objections to Plan B. Id. at 956 114. The numbers bear this out. From
2006-08, around the time of the passage of the Delivery Rule and the
campaign by Plan B advocates to target conscientious objectors, 46% of
refusal complaints filed involved Plan B. Id. at 961 140. One-third of
these complaints were against Plaintiff Ralphs. Id.

17

Even the numbers given in the States Brief, which include data from
before 1999, when Plan B was first approved for prescription use by the
FDA, show a differential treatment of Plan B complaints compared to other
drugs. Of the complaints filed during the period 1995-2008 for failure to
stock or dispense a drug, or for untimely filling a prescription, Plan B
complaints were investigated 42% of the time, compared to only 30% of the
time for all other drugs. State Br. at 54.
The State Defendants make much of the fact that the investigations
against Plaintiff Ralphs have not been concluded, and argue that because
there has not yet been any official enforcement action against Plaintiffs or
any other pharmacy under the Regulations, it is impossible to demonstrate a
pattern of religious animus. But Defendants overlook several key facts.
First, the Boards failure to conclude the investigations against Plaintiffs is
entirely due to the courts stay of those enforcement actions, not any
determination that the complaints lacked merit. In fact, the Board received
contemporaneous complaints against three other pharmacies during the
period when Plan B advocates were test-shopping pharmacies. The Board
has already dropped all the other investigations after finding the failure to
stock Plan B was for temporary business issues, not a persistent religious
18

objection. This occurred even though a temporary failure to stock the drug
implicates the same State concerns in providing timely access to women in
need of emergency contraception.
Additionally, even if the investigations against Plaintiffs have not
been concluded, Plaintiffs have still been disproportionately subject to
investigations and potential disciplinary action. The state in trial repeatedly
referred to Ralphs as acting in outright defiance of the Stocking and
Delivery Rules, and several Board members similarly testified. Stormans,
854 F. Supp. 2d at 956 115.
As the District Court explained, Ralph's likely faces eventual
revocation of its pharmacy license if the investigations against it are
permitted to proceed. Id. at 964 158.
The threat of enforcement of the Delivery Rule has also already
resulted in Plaintiff Thelens constructive discharge and Plaintiff Meslers
planned discharge if the Regulations are upheld. Id. at 964 162.

b. The Exemptions to the Delivery Rule Grant the Government

Excessive Discretion and Provide a Fig Leaf to Mask
Selective Enforcement
i. Individualized Exemptions and Broad Discretion
Invite Discriminatory Enforcement.
19

A law is not neutral and generally applicable under the First

Amendment if it permits individualized, discretionary exemptions,
because it could be appliedin a way that discriminates against religiously
motivated conduct. Blackhawk v. Commonwealth of Pennsylvania, 381
F.3d 202, 209 (3d Cir. 2004) (citing Lukumi, 508 U.S. at 537; Smith, 494
U.S. at 884; Fraternal Order of Police, 170 F.3d at 364-65). Blackhawk
involved a permitting system for individuals who kept wildlife in captivity.
Although acquiring a permit required paying a fee, the Game Commission
could waive it where hardship or extraordinary circumstance warrants, so
long as the waiver is consistent with sound game or wildlife management
activities or the intent of the Game and Wildlife Code Blackhawk, 381 F.3d
at 205 (internal quotation marks removed). Here, the consistent with
provision was sufficiently open-ended to allow for individualized,
discretionary exemptions. Blackhawk, 381 F.3d at 209-10. Thus, while the
unequal application of the law would not be evident from its text, the
breadth of the individualized exemptions facilitated that laws unequal
enforcement.
Lukumi also involved a law that was not neutral and generally
applicable. There, the Court ruled that an ordinance banning the
20

unnecessar[y] killing of animals granted the city too much individualized

discretion to evaluate each killing. 508 U.S. at 537. In practice, the city
allowed for secular exemptions to the ordinance, such as hunting, slaughter
for food, pest control, and euthanasia, but not comparable religious
exemptions, such as religiously motivated animal sacrifices. Id. This
devalued religious reasons for killing by judging them to be of lesser
import than nonreligious reasons. Id. at 537-38. Yet again, the existence of
a broad, poorly-defined exemption enabled the unequal application of the
law.
The courts have recognized this tendency in the context of First
Amendment free speech as well. In the licensing context, government
cannot enjoy unbridled discretion to restrict First Amendment protected
rights. Desert Outdoor Advertising, Inc. v. The City of Moreno Valley, 103
F.3d 814, 818 (9th Cir. 1996). Instead there must be narrow, objective, and
definite standards to guide the licensing authority. . . . Id. (citing
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969)). In
Desert, this Court held that it was unconstitutional to vest officials with
unbridled discretion in determining whether a particular structure or sign
will be harmful to the community's health, welfare, or aesthetic quality,
21

and not require them to provide evidentiary support for their reasoning. 103
F.3d at 819. This Court has also explained that granting government
unbridled regulatory power could intimidate parties into self-censorship
and make it difficult to distinguish between legitimate regulations and
abuses of power. Long Beach Area Peace Network v. City of Long Beach,
574 F.3d 1011, 1019-20 (9th Cir. 2009).
As this Court has further recognized, individualized and discretionary
determinations often provide a means to mask discrimination against
religious groups, and new, small or unfamiliar churches in particular. . . .
Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978,
987 n.9 (9th Cir. 2006) (quoting 146 Cong. Rec. S774-01 (daily ed. July 27,
2000); See also Douglas Laycock and Luke W. Goodrich, RLUIPA:
Necessary, Modest, and Underenforced, 39 FORDHAM URB. L.J. 1021, 103236 (May 2012) (cataloguing cases in which deference to complaints about
neutrally but broadly-worded impacts of proposed religious land use often
serve as a pretext for hostile and unequal treatment of minority religions). In
this case, although Plaintiffs are a member of a majority religious group
Protestant Christianstheir theological approach to this issue falls outside
of the Protestant mainstream. If discrimination against such minority beliefs
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is permitted, other minority religions will be put at greater risk of

discrimination from facially neutral but effectively discriminatory laws.

ii. The Regulations Are Overly Broad and Designed to

Lead to Selective Enforcement Against Religious
Objectors.
The Delivery Rule, in addition to listing four exemptions for failure to
dispense a drug based on national emergency, fear of fraud or error, and lack
of proper equipment or training, includes two exemptions that present the
very problem of overly-broad discretion addressed in Lukumi and
Blackhawk.
First, there is an exemption for cases where the pharmacy is out of
stock despite good faith compliance with the Stocking Rule. This case-bycase adjudication of good faith compliance is equivalent to the
governments flexibility in Lukumi to determine which animal killings were
truly necessary. In practice the open-ended definition became a vehicle
for discrimination, because the local government considered religious
killings per se unnecessary. Applying a similar broad exemption in
Blackhawk, the government never recognized hardship for religious users
of wild animals, despite their empathy for similarly-situated secular users.

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Analogously, the Board has determined that a conscientious objectors

non-compliance with the Stocking Rule is in bad faith. At the same time,
other explicit choices not to stock a drugsay, in order to focus on a
different market or even because the pharmacy doesnt like the drugs
clientelehave never been challenged as violations of the Stocking Rule.
This clearly judg[es religious reasons for behavior] to be of lesser import
than nonreligious reasons. Lukumi, 508 U.S. at 537-38.
The Delivery Rules catch-all provision also is broad enough to allow
for selective enforcement of the law, and in fact encourages it. That
provision allows for exemptions due to substantially similar circumstances
to the first five exemptions. WASH. ADMIN. CODE 246-869-010(1) (2007).
But because each of those articulates a secular reason for failing to dispense
a drug, the only constraint on the Boards application of the catch-all
operates to encourage further secular exemptions while disfavoring religious
ones. Thus, to the extent that provision has any limits at all, its limits
contribute to the selective enforcement problem rather than alleviate it.
The Stocking Rule also suffers from imprecision, providing the openended mandate for a pharmacy to maintain at all times a representative
assortment of drugs to meet the needs of its patients, without bothering to
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define those important terms. Stormans, 854 F. Supp. 2d at 977 225. This
allows the Board to selectively enforce the Rule on a case-by-case basis
against religious individuals and businesses, but not businesses without such
motivations.

iii. Exemptions to the Delivery Rule Impermissibly

Privilege Certain Religious Beliefs over Others
Beyond the Regulations numerous secular exemptions, State
Defendants also recognize conscientious objections for certain religious
beliefs, but not others, making an impermissible distinction among religions.
Washington pharmacies and pharmacists may conscientiously object to
dispensing both lethal drugs for an assisted suicide and drugs used to cause
an abortion. See WASH. REV. CODE 70.245.190(1)(d); WASH. REV. CODE
9.02.150. Accordingly, religious objectors who oppose abortion or assisted
suicide but not emergency contraceptives are protected, while those whose
religious beliefs also dictate opposition to emergency contraceptives are not.

c. The Boards Claim of Complaint-Only Enforcement Does

Not Render the Regulations Generally Applicable

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i. The Boards Justification of Its Enforcement Policy

Cannot Be Credited.
The State Defendants claim that enforcement proceedings initiated
outside the complaint process are unnecessary because the Board brings
pharmacies into compliance during their regular inspections. State Br. at 15.
These inspections cover a wide range of issues from the safety and
cleanliness of the physical space to checking the medications on the shelf for
proper labeling, outdated medications, and proper storage conditions. State
Br. at 15. Despite the inspections expansive reach, there is no evidence that
the inspections have ever policed the Stocking Rule or the Delivery Rule.
See Stormans 854 F. Supp. 2d at 960 134, 135. This despite the
testimony of four witnesses that it would not be difficult to enforce the
Regulations during the bi-annual inspections. Id. at 134.
ii. The Boards Enforcement Has Not Been Based on
Complaints Alone.
Despite the States claims to the contrary, the Board does not follow a
complaints-only enforcement policy; the District Court found the Board
members claims to the contrary to be implausible and not credible.
Stormans 854 F. Supp. 2d at 959 130. The District Court explained that
enforcement of the Regulations is not exclusively complaint-driven, and
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is not even primarily complaint-driven. Id. at 979 236 . This is a

factual finding, which must be credited because it is not clearly erroneous.
The District Court provided ample support for its factual finding,
elaborating that the Board has a multitude of alternative enforcement
mechanisms to enforce the Stocking Rule or Delivery Rule. The Board
inspects pharmacies every two years, initiates complaints, sends out testshoppers, issues newsletters, and works with the State Pharmacy
Association to raise compliance issues with individual pharmacists. Id. at
959 131. The Board may also file its own complaint, as it has done
against Plaintiffs. Id. at 960 135.

iii. Even a Rigorous Complaint-Only Enforcement

Policy Provides an Avenue for Selective Enforcement.
1. A Complaint-Based Enforcement Policy Can be
Readily Co-Opted by Special Interest Groups.
Even if the Board actually followed a strict complaint-only
enforcement policy, this would still not address concerns about the
Regulations neutrality and general applicability. A complaints-only
enforcement system converts the rule of law into a tool of special interest
groups, leaving groups free to capture the process and selectively enforce a
law. In practice, campaigns by Planned Parenthood and its allies with
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hostility to religious objectors lead to those objectors being

disproportionately targeted. Here, those organizations solicited emergency
contraception rejection stories, asked women to call pharmacies to request
Plan B, sent out test-shoppers, and notified the Washington Department of
Health of their pending complaints. Stormans 854 F. Supp. 2d at 950-51,
963 99, 151.

2. A Complaint-Based Enforcement Process Tends

to Target Minority Groups.
Many cases have arisen in which the surrounding community had
unique complaints about a specific group or practice. This does not excuse
the government entity from scrutiny under the First Amendment. On the
contrary, it heightens First Amendment concerns because animus against
disfavored groups and ideas is precisely what those constitutional
protections were designed to address. For example, the City of Hialeah
could likely have achieved the same discriminatory result struck down in
Lukumi by simply following a policy of enforcing such a slaughter ban only
when residents filed complaints. In practice, it was the Santeria
practitioners, not the more publicly-accepted hunters or kosher butchers who
were likely to offend residents of the city and trigger complaints.
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This tendency of individuals to react negatively to unfamiliar or

minority religious groups was the rationale behind the passage of the
Religious Land Use and Institutionalized Persons Act, which was based on
extensive Congressional findings of use of apparently-neutral land-use laws
to discriminate against disfavored religious groups. Senators Hatch and
Kennedy, sponsors of RLUIPA, explained that churches are frequently
discriminated in the highly individualized and discretionary processes of
land use regulation . . . . [O]ften, discrimination lurks behind such vague
and universally applicable reasons as traffic, aesthetics, or not consistent
with the city's land use plan. 146 Cong. Rec. S774-01 (daily ed. July 27,
2000) (emphasis added) (quoted in Guru Nanak, 456 F.3d at 987 n.9).
The same tendency identified by Congress in the land-use context is
evident in this case. Ceding enforcement decisions to the public risks
turning the process into a popularity contest, invites discrimination, and
masks the uneven treatment of religious groups who have otherwise
identically violated the law. This is most apparent in the Boards treatment
of Catholic hospitals, which service areas with demand for emergency
contraceptives. Stormans, 854 F. Supp. 2d at 964-65 163, 166. Despite
the common knowledge that Catholic hospitals will not dispense emergency
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contraceptives except in certain cases of sexual assault, the Board has

initiated no enforcement efforts, and issued no warning to hospitals about
their failure to dispense emergency contraceptives, including Plan B. Id. at
965 164-166.
Indeed, the District Court concluded that the relative prestige of the
Catholic hospital system was the reason it had thus far escaped investigation
despite being in clear violation of the Regulations. See id. at 988 284. The
court suggested that the Board recognizes that shutting down Catholic
pharmacies would have a devastating impact on access to health care. Id.
Treating Catholic institutions as too-big-to-fail would have left the state free
to focus upon only those religious institutions that were not large enough to
be a political threat. As the District Court pointed out, there was not
significant downside for the Board when it enforced the Regulations against
a small, independent pharmacy lacking in a constituency, and already
subject to boycotts and picketing. Id. The Board ignored, on the other hand,
identical conduct by well-established churches that are a pillar of health
care within the state, and which likely carried much more political clout.
Id. If the Board were merely concerned with remedying the alleged issues
of timely access to Plan B, it should have first proceeded against the major
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players who undoubtedly have a larger influence on the overall availability

of the drug than a single pharmacy. The fact that it did not do so suggests
that its primary motivation was yielding to interest-group pressure rather
than increasing drug access or treating identical religious objections equally.

3. A Complaint-Based Enforcement Process

Impermissibly Delegates Government
Enforcement Decisions.
The Supreme Court has held that enforcement decisions are proper to
the government, not private citizens. In Larkin v. Grendel's Den, Inc., 459
U.S. 116 (1982), the Supreme Court struck down a statute which essentially
granted veto-power over liquor licenses to nearby churches and schools.
Grendels Den explained that Government cannot delegate or share
important, discretionary government powers with religious institutions.
Grendels Den, 459 U.S. at 127. This would undermine the reasoned
decisionmaking of a public legislative body acting on evidence and guided
by standards, on issues with significant economic and political
implications. Id.
This case implicates the same risks identified by the Supreme Court in
Grendels Den. The Board has attempted to avoid responsibility for its own
enforcement process by disclaiming control of its actions, undermining the
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accountability of the government on an issu[e] with significant economic

and political implications. Grendels Den, 459 U.S., at 127. Its failure to
follow up on known widespread violations of the Discovery Rule by
Catholic hospitals and pharmacies while investigating a small independent
pharmacy undermines its ability to ac[t] on evidence and be guided by
standards. Id.
d. The Governors Manipulation of the Boards Rulemaking
Process Supports a Finding of a Religious Discrimination
even Under the State Defendants Erroneous Test.

Even if proving an explicit discriminatory intent was needed to prove

a selective enforcement claim, the instant case provides a clear example of
an impermissible attempt to target religion under the guise of a facially
neutral and generally applicable law. See Lukumi, 508 U.S. at 535. In
Lukumi, the targeted religious conduct was almost the only conduct subject
to the laws at issuea feature also present in this case.1 See id. at 535. As
in Lukumi, the evidence clearly shows intentional drafting of the Regulations
to produce that effect. See id. at 535, 536 (The texts show that they were

See discussion supra at II.a.

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drafted in tandem to achieve this [discriminatory] result . . . Santeria alone

was the exclusive legislative concern.).
Under Governor Christine Gregoire and Planned Parenthood's
direction, the Board designed the Regulations with religious objections in
mind. Governor Gregoire, for her part, stated that she opposed referral for
personal or conscience reasons. Stormans, 854 F. Supp. 2d at 937 35. She
coordinated her appointments to the Board with Planned Parenthood, and
considered either removing dissenting Board members or subverting the
Board altogether. Id. 937-39, 35, 37, 44. Then-Board Executive Director
Steven Saxe explained that the moral issue IS the basis of the [Governors]
concern. Id. at 939 47. Elsewhere, Saxe suggested that the rules could
incorporate the Governors concerns by explicitly disallowing the right to
refuse for moral or religious judgment, while keeping intact other
supposedly more legitimate exemptions, such as business examples. Id. at
939 48. Even Governor Gregoires task force convened prior to the
Delivery Rules passage to craft a compromise rule was designed to
produce a compromise only on secular exemptions. It therefore failed to
include conscientious objectors, faith-based health care providers, or any
other outside organizations besides . . . women's reproductive rights groups.
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Id. at 940-41 49, 52. Not surprisingly, the task force recommended
allowing exemptions to facilitate business-related referrals, but not religious
ones, except with respect to lethal assisted-suicide drugs. Id. at 941 5253.
The Boards official guidance for the 2007 Delivery Rule confirms
this single-minded focus on religious objections to emergency
contraceptionit only refers to conscientious objections to Plan B. Id. at
943 68. Similarly, a 2010 Board rulemaking process on the same topic
was halted rather than modify the Delivery Rule to allow for conscientious
objectors. The Boards chair, Gary Harris, explained that he would never
[support allowing] . . . religion as a valid reason for a facilitated referral.
Id. at 945 76.
These facts are only a sample of those considered by the District
Court and which supported its conclusion that the Regulations were
adopted because of conscientious objections to Plan B, not merely in spite
of them. Id. at 987 277 (quoting Lukumi, 508 U.S. at 540).
CONCLUSION
The judgment of the district court should be affirmed.

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Dated November 21, 2012.

Respectfully submitted,

/s/ Carrie L. Severino

CARRIE L. SEVERINO
District of Columbia Bar No. 982084
Chief Counsel and Policy Director
Judicial Education Project
722 12th St. NW
Washington, DC 20005
Telephone (616) 915-8180
Facsimile (703) 396-7817
Email: carrie@judicialnetwork.com
Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitations set
forth in FRAP 29(d) and 32(a)(7)(B) as well as the typeface requirements set
forth in FRAP 32(a)(5) and 32(a)(6). This brief contains 6,402 words,
excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
It is printed in a proportionately-spaced typeface: 14-point Times New
Roman.

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CERTIFICATE OF SERVICE

I hereby certify that on this 21st day of November, 2012, a copy of the
foregoing brief was served on counsel of record for all counsel of record in this
case through the Courts Notice of Electronic Filing system.

/s/ Carrie L. Severino

Carrie L. Severino
Chief Counsel
Judicial Education Project
Counsel for Amici Curiae

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