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 PLAINTIFFS-

APPELLEES

_____________________________________________________________

CARRIE L. SEVERINO

AMMON SIMON

JUDICIAL EDUCATION PROJECT

722 12th St. NW, Fourth Floor

Washington, DC 20002 Washington, DC 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).

i

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

ii

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 Co-

Opted 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

iii

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

iv

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

1

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 world-

wide 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.

2

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.

3

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

4

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

5

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 religiously-

motivated 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

6

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

7

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.

8

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.

9

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

10

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.

11

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

12

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

13

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-CH-

000495 (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

14

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

15

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

16

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

17

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.

18

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

19

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.

20

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

21

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,

22

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, 1032-

36 (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

23

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-by-

case 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.

24

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 open-

ended mandate for a pharmacy to maintain at all times a representative

assortment of drugs to meet the needs of its patients, without bothering to

25

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

26

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

27

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 test-

shoppers, 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

28

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.

29

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

30

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

31

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

32

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

1 See discussion supra at II.a.

33

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.

34

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 52-

53.

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.

35

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

36

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.

37

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