Today's Jolt comes with our sincerest apologies to the Republican base and the Democratic base; both sides probably wish none of this was true.

With angry language about "would-be-theocrats," the office of Washington State Attorney General Rob McKenna, the Republican candidate for governor, filed a brief in federal district court this week that shreds religious pharmacists' arguments that state rules requiring pharmacies to dispense emergency contraception are discriminatory.[pullquote]"If this Court allows pharmacies to interpose their religious beliefs to deny health care to its patients, the Court would put the state in the role of endorsing ... religious beliefs ... This is not permissible under the First Amendment."[/pullquote]

Indeed, while there have been national headlines about emergency contraception lately, the Plan B case right here in Washington State went to trial in Federal District Court in Tacoma this month (arguments concluded yesterday) and the AG office's brief is a primer on the fundamental principle of separation of church and state.

Specifically, the case involves Washington State Board of Pharmacy rules that require pharmacies (not individual pharmacists) to fill Plan B scrips. Storman's Inc., which owns Ralph's Thriftway in Olympia, sued back in late 2007 claiming that the rules constituted religious discrimination because they forced pharmacists who believe it's morally wrong to use emergency contraception to forsake their religious views.

The rules are on hold until the court decides the matter. (Of course, whichever way the District Court's decision goes, it will be appealed to the US Court of Appeals and most likely all the way to the US Supreme Court.)

Kevin Stormans, owner of Ralph's, testified during the trial that, due to his genuinely held religious beliefs, he couldn’t in good conscience stock or dispense Plan B because he believes it takes a human life. His testimony represents the crux of the religious right's longstanding 180 degree interpretation of the constitution—that the establishment clause can be misinterpreted to discriminate against religion—and specifically in this case, that the rules to ensure that pharmacies provide emergency contraception to patients aren't neutral because they somehow single out and discriminate against a specific set of religious beliefs.

McKenna, who we'd actually initially believed was undermining the state's defense, doesn't buy the pharmacists' argument. At all. His office's brief argues that religious conservatives have it backwards. The AG's brief says if exceptions were made for religious beliefs, the would state would be establishing religion, in violation of the First Amendment.

The state's brief begins:

As Justice Kennedy discusses in his majority opinion in Lee v. Weisman, “[t]he principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause.”  Justice Kennedy explains that “the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce.”

While ... the Court was examining the issue of including prayers in the graduation ceremonies in the public schools, the following quote seems equally applicable when patients are unable to access health care due to imposition of religious beliefs by those entrusted with a state license to provide health care: "What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, . . . may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy."

More? The plaintiffs' complaint rests on their contention that the pharmacy board rules are not neutral—that is, they are tailor made to get around religious beliefs. McKenna's office rejects that idea. They write:

The Board‟s Pharmacists‟ Professional Responsibilities rule permits pharmacists to refuse to provide health care for any reason; however, the Board assured timely access to health care by requiring the pharmacy to deliver medications for its patients. If this Court allows pharmacies to interpose their religious beliefs to deny health care to its patients, the Court would put the state in the role of endorsing the religious beliefs which view life as commencing upon fertilization. This is not permissible under the First Amendment‟s Establishment Clause.

The Court also notes in McCreary ... "The Constitution mandates that the government remain secular, rather than affiliate itself with religious beliefs or institutions, precisely in order to avoid discriminating among citizens on the basis of their religious faiths. . . . To be sure, in a pluralistic society there may be some would-be theocrats, who wish that their religion were an established creed, and some of them perhaps may be audacious enough to claim that the lack of established religion discriminates against their preferences. But this claim gets no relief, for it contradicts the fundamental premise of the Establishment Clause itself.”].

Plaintiffs have not, and cannot, point to any authority requiring that neutral laws of general applicability include an exception for all religious beliefs. Nor, as illustrated by the cases cited above, can they demand an exception solely for the religious beliefs of the ... Plaintiffs.
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