Sel

We must decide whether the district court abused its discretion by preliminarily enjoining the enforcement of new rules promulgated by the Washington State Board of Pharmacy (“Board”) that require pharmacies to deliver lawfully prescribed Federal Drug Administration (“FDA”)-approved medications and prohibit discrimination against patients, on the ground that the rules violate pharmacies’ or their licensed pharmacists’ free exercise rights under the First Amendment to the U.S. Constitution. We have jurisdiction pursuant to 28 U.S.C. § 1292 . Because we conclude that the district court incorrectly applied a heightened level of scrutiny to a neutral law of general applicability, and because the injunction is overbroad, we vacate, reverse, and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

The practice of pharmacy in the state of Washington is regulated by the Washington State Board of Pharmacy pursuant to a comprehensive regulatory scheme which directs the Board to “[rjegulate the practice of pharmacy and enforce all laws placed under its jurisdiction,” “[establish the qualifications for licensure,” conduct disciplinary proceedings, and “[promulgate rules for the dispensing,…

concurring:

I concur in the judgment and join all but one small part of the majority opinion, in which the opinion declares that “in deciding whether a law is neutral and generally applicable under the Free Exercise Clause, we do not consider the legislative history of the law.” Majority op. at 982.

The majority opinion bases this conclusion on its observation that in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 , 113 S.Ct. 2217 , 124 L.Ed.2d 472 (1993), a majority of the Court did not join the portion of Justice Kennedy’s opinion that considered legislative history. But neither did a majority of the Court declare in Lukumi that legislative history should not be considered. As the majority opinion correctly notes, at 982 n. 13: “We may discern with certainty only that Chief Justice Rehnquist and Justices Scalia and Thomas did not” sanction the use of legislative history. The view of those three justices is not a holding of the Court.

The majority opinion does not offer any other basis for excluding legislative history, as a category, as material that may be considered in evaluating the neutrality of a regulation. Legislative history is too well…

I. FACTUAL AND PROCEDURAL BACKGROUND

The practice of pharmacy in the state of Washington is reg- ulated by the Washington State Board of Pharmacy pursuant to a comprehensive regulatory scheme which directs the Board to “[r]egulate the practice of pharmacy and enforce all laws placed under its jurisdiction,” “[e]stablish the qualifica- tions for licensure,” conduct disciplinary proceedings, and “[p]romulgate rules for the dispensing, distribution, wholesal- ing, and manufacturing of drugs and devices and the practice of pharmacy for the protection and promotion of the public health, safety, and welfare.” Wash. Rev. Code Ann. § 18.64.005. Under the Code, a license is required for “any person to practice pharmacy or to institute or operate any pharmacy.” Id. at § 18.64.020. A “pharmacist” is defined as “a person duly licensed by the Washington state board of pharmacy to engage in the practice of pharmacy,” id. at § 18.64.011(10), and a “pharmacy” is defined as “every place properly licensed by the board of pharmacy where the prac- tice of pharmacy is conducted,” id. at § 18.64.011(12). The “practice of pharmacy” “includes the practice of and responsi- bility for: [i]nterpreting…