“This case is an ominous sign.”
So reads the opening sentence in Justice Alito’s dissent from the Supreme Court’s refusal on Tuesday to hear a case central to this country’s debate over religious freedom.
A small, family-owned Washington state pharmacy, Ralph’s Thriftway, was staffed by three Christian pharmacists who refused to stock emergency contraception such as Plan B and Ella. The store always referred the small minority of customers who wanted these drugs to one of more than 30 other pharmacies within five miles.
Governor Jay Inslee of Washington, however, ordered the Board of Pharmacy to force all pharmacies to carry these drugs. Indeed, from the challenge to the board’s regulations brought in District Court, it is clear that referrals for secular reasons were permitted but not for religious ones.
The board even proposed that pharmacies with objections could close, apparently preferring that they have no pharmacy at all rather than one which asks a small minority of customers to travel a couple miles.
As Emma Green points out in her Atlantic article on the case, the Court’s refusal to take up the case —which effectively supports the Washington Pharmacy Board regulations—is quite different in tone from Hobby Lobby, another Supreme Court case which (only two years ago) permitted private companies to refuse to provide their employees emergency contraception.
The loss of Justice Antonin Scalia looms large here, as the Court almost certainly would have heard the case had he voted.
The refusal of the other five members of the Court may reflect a larger cultural shift with regard to how we think about religion.
In his dissent, Alito invokes the Court’s rulings on the U.S. Constitution’s “free exercise” clause which, as quoted by Alito, requires defending religious tolerance “upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices.”
But several trends are pushing the culture in a very different direction.
Consider, first, the secularization of our culture—particularly among coastal and urban elites. To such people, many religious claims increasingly seem like superstitious and often dangerous nonsense rather than views worthy of respect and tolerance.
Second, particularly with regard to the culture’s radical and rapid change with regard to LGBT rights, invoking “religious freedom” seems like little more than a cover for prejudice and discrimination.
Third, creating a different and more skeptical standard for certain religious claims allows those with power to marginalize views they don’t like.
Inslee, for instance, has a 100 percent voting record abortion rights groups and obviously feels little sympathy for the views of pro-life Christian pharmacists such as those who work at Ralph’s. In enacting regulations which permit “secular” reasons for referrals but disallowing “religious” ones, Inslee makes room for the people and views with which he is sympathetic, but marginalizes the people and views he finds objectionable.
Indeed, after the Court’s refusal to hear the case, the owners of the pharmacy, Kevin and Greg Stormans, will now either have to abandon their beliefs or shut down their means of livelihood.
But suppose a pharmacist, out of similar Christian conviction, refused to provide lethal drugs for the death penalty. In such a case, Inslee and the Pharmacy Board likely would have no objection because they have sympathy for his point of view. The fact that the pharmacist’s view was religious wouldn’t matter.
“Wait, wait,” you say. “There are rational, non-religious reasons for not wanting to participate in the death penalty. Nothing like this exists when it comes to sex-obsessed religious fanatics who don’t like contraception.”
But think about this more carefully. The Stormans and their pharmacists object to stocking these drugs on the basis of values which many non-religious people share: human rights and solidarity. They consistently apply the moral principle that fellow members of Homo sapiens—regardless of color, gender, social status, health, size or age—are equal in dignity and should be treated as fellow brothers and sisters.
Ella (there is controversy about the mechanism of action in Plan B) almost certainly can cause the youngest and most vulnerable members of the human family to essentially starve to death because the drug keeps embryos from implanting into the uterus.
The views of pharmacists who see things in these terms are marginalized, not because they are religious, but because people with power (like Inslee) don’t like them. If such pharmacists refuse to provide abortion-causing drugs, their views are deemed “religious” and rejected, but if they would refuse to provide drugs for lethal injections, their views would be encouraged and even celebrated.
We also find these kind of ideological power plays on the right. Some of the very same folks who favor religious freedom when Catholic bishops protect prenatal human beings also work to undermine religious freedom when Catholic bishops protect undocumented immigrants.
Lost in the public yelling over these issues is the fact that we don’t even really have a good explanation for what makes an idea “religious”—as opposed to “secular”—in the first place.
William Cavanaugh, in his fantastic book The Myth of Religious Violence, demonstrates that the religious/secular distinction in our public discourse ends up being about little more than those with power marginalizing the views of religious people with whom they disagree.
The Stormans are simply the latest victims of this kind of power play. Given current worrisome trends, they most certainly will not be the last.
Charles C. Camosy is Associate Professor of Theological and Social Ethics at Fordham University.