Examining four recent legal battles in which U.S. courts deemed the religious freedom of various individuals or groups as contingent or easily subordinated to other considerations, Mitchell Rocklin and Howard Slugh detect a worrying tendency “to view religious liberty as a privilege that the majority, at its discretion, may bestow upon the minority.” The first case involves a family-owned pharmacy in Washington state whose religious proprietors, contrary to state regulations, refrained from stocking or dispensing abortifacient drugs. When the Stormans, owners of the pharmacy, took the case to the Supreme Court, it declined to hear it. Rocklin and Slugh write:
[In arguing that the court should consider the case], Justice Samuel Alito concluded that it was particularly concerning because “there is much evidence that the impetus for the adoption of the [pharmacy] regulations was hostility” to the pharmacists’ religious beliefs. In other words, Washington’s regulations were not neutral requirements aimed at enhancing access to abortifacients. The burden the regulations imposed on religious pharmacists was not merely incidental. Rather, the regulations were a deliberate attempt to stamp out a religious objection that the [state’s legislative and executive branches]—supported by the courts—refused to tolerate.
Evidence in the . . . district-court record supports Justice Alito’s conclusion. That record indicates that none of the plaintiffs’ customers had ever been completely denied access to abortion-inducing drugs. The Stormans were willing to refer customers who requested such drugs to nearby pharmacies, and the evidence suggested that this commonsense compromise had been successful. Within five miles of the Stormans’s pharmacy, there were more than 30 pharmacies that stocked the drugs in question. . . . .
As Justice Alito noted in his dissent, . . . Washington State’s regulations included exemptions “for an almost unlimited variety of secular reasons.” For example, pharmacies may refuse to stock a drug that “requires additional paperwork or patient monitoring, has a short shelf life, may attract crime, requires simple compounding, . . . or falls outside the pharmacy’s niche.” The only exception not included on the list was one based on religious faith. . . .
Some European countries have already banned or discussed banning Jewish and Muslim ritual slaughter and circumcision. Most American Jews now see these bans as unthinkable in their own society. . . . If we do not succeed in protecting religious liberty as a fundamental right, there is no logical reason why such bans will not become quite thinkable in America.