# I Pit HOBBY LOBBY **URL:** \ **Category:** The BBQ Pit\ **Created:** [November 28, 2012, 2:45am UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335 "2012-11-28T02:45:24Z")\ **Posts on this page:** 20\ **Page:** 20
**Author:** ![ricksummon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ricksummon/32/3333_2.png) [@ricksummon](https://boards.straightdope.com/u/ricksummon)\ **Post date:** [December 10, 2013, 4:20am UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/381 "2013-12-10T04:20:17Z")
It’s been mentioned that Hobby Lobby could simply choose not to offer _any_ health insurance to its employees. Of course, if they did that, the Affordable Care Act would require them to pay a tax penalty. So, what if their response was to protest that they were being taxed for exercising their Deeply-Held™ religious beliefs? A tax on their _faith?_ Nay, a tax on their very **souls!** Nothing more un-American could scarcely be imagined! :eek: The government, in turn, would likely reply that they were simply being taxed for not providing health insurance, and that their _reasons_ for not providing it were irrelevant. I suspect _that_ argument would be one the government would win. All the judge would have to do is pick up a quarter and say, [“Whose image is this?”](http://www.biblegateway.com/passage/?search=Matthew%2022:19-21&version=NIV)😃 ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [December 10, 2013, 1:49pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/382 "2013-12-10T13:49:11Z")
> [@Bricker](#): > > Cite for the Scalia quote? [I’m guessing he’s referring to this:](http://www.law.cornell.edu/supremecourt/text/494/872) > [@](#): > > We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. “Laws,” we said, are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in\*\* effect to permit every citizen to become a law unto himself\*\*. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 10, 2013, 3:24pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/383 "2013-12-10T15:24:38Z")
> [@Damuri\_Ajashi](#): > > I just had a revelation and spoke to God the other day and he told me that I shouldn’t cover diabetes because it is God’s punishment for gluttony. I rather like this example. Having said that, I think it’s generally on the proponent of a slippery slope argument (which would include me, in this case) to provide an example of someone attempting to do whatever it is they’re warning people about. Abortion and contraception, it seems to me, might be _sui generis_ in this instance. We know, of course, that Jehovah’s Witnesses reject certain types of medical care but I’m not aware of any JW businesses that refuse to cover it for others. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 10, 2013, 4:55pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/384 "2013-12-10T16:55:38Z")
> [@stpauler](#): > > [I’m guessing he’s referring to this:](http://www.law.cornell.edu/supremecourt/text/494/872) That’s a decision from 1990. The claim at issue current is based on the RFRA, which was passed after 1990. So I doubt he’s referring to that, because he’s not nearly stupid enough to try to claim Scalia is somehow a hypocrite for deciding a 1990 case on 1990 law and deciding a 2013 case on law that exists in 2013. Try again. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 10, 2013, 5:08pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/385 "2013-12-10T17:08:17Z")
> [@Falchion](#): > > What a weird world it would be to live in if freedom of political speech was actually limited to entities defined (I presume by the government?) as “press.” Well, yes I suppose the judiciary is part of the government. > [@](#): > > I have a request for you. When the opinion comes out (either way), I want you to make a serious effort to distinguish between RFRA and the First Amendment. Failing to draw a distinction between what the First Amendment requires and what RFRA instructs lends itself to charges of hypocrisy that are best suited to partisans, journalists, and other extraordinarily stupid people. But you don’t strike me as any of those things. > > This sort of result-based view of these cases does real violence to basic legal analysis. Before you pass judgment on the Court’s opinion (or the particular boogeyman justice _de jour_), consider Scalia’s opinion in _Smith_ and the unanimous opinion in _O Centro_, which dealt with fundamentally the same question, but one from the standpoint of the First Amendment and the other from the standpoint of RFRA. And then understand that the HL case takes place in the _O Centro_ world, not the _Smith_ world. I keep forgetting that this is about the RFRA, everyone keeps talking about the issue in broader terms. So in the absence of the RFRA, Hobby Lobby would have to go pound sand, right? > [@](#): > > I don’t know. I’m neither a theologian nor a pharmacologist. I could imagine that either dosage or frequency could cause the drug to perform differently when taken in routine monthly birth control form versus single-dose emergency contraceptive form. > > But, I have no idea. My question was a result of the claim that the emergency contraceptives have substantial non-contraceptive therapeutic uses. > [@Really\_Not\_All\_That\_Bright](#): > > I rather like this example. Having said that, I think it’s generally on the proponent of a slippery slope argument (which would include me, in this case) to provide an example of someone attempting to do whatever it is they’re warning people about. Abortion and contraception, it seems to me, might be _sui generis_ in this instance. We know, of course, that Jehovah’s Witnesses reject certain types of medical care but I’m not aware of any JW businesses that refuse to cover it for others. I think abortion and contraception is sui generis from the perspective of the young lady who wants to have an abortion or use contraception. There is no other issue that is quite like being told you have to carry a baby you don’t want for 9 months and then either keep it and potentially derail your life or give it up for adoption and feel like you abandoned your child instead of just taking a pill that will prevent a microscopic combination of your egg and some guy’s spunk implant itself on your uterus. From the religious fanatic’s perspective there are all sorts of things that people think god commands of us that are pari passu with the command not to use contraception. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 10, 2013, 5:09pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/386 "2013-12-10T17:09:36Z")
> [@Bricker](#): > > That’s a decision from 1990. The claim at issue current is based on the RFRA, which was passed after 1990. > > So I doubt he’s referring to that, because he’s not nearly stupid enough to try to claim Scalia is somehow a hypocrite for deciding a 1990 case on 1990 law and deciding a 2013 case on law that exists in 2013. Try again. No, I’m that stupid. And frequently so. I keep forgetting about the RFRA because people keep talking about this issue as a religious freedom issue. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 10, 2013, 5:39pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/387 "2013-12-10T17:39:27Z")
> [@Damuri\_Ajashi](#): > > Well, yes I suppose the judiciary is part of the government. That doesn’t seem like a workable standard. “Free speech for press only” “Am I press?” “I don’t know, say something, we’ll prosecute you, and see what the court says.” > [@](#): > > I keep forgetting that this is about the RFRA, everyone keeps talking about the issue in broader terms. So in the absence of the RFRA, Hobby Lobby would have to go pound sand, right? Probably. The First Amendment argument would go something like: \*\* This isn’t actually a neutral and generally applicable law since it is full of exemptions for favored religious groups (e.g. the Amish), small employers, and so forth. _Smith_ distinguished (rather than overruled) \*Sherbert \*(and others) on the basis that those also had exemptions built into them. Therefore, when a law isn’t “generally applicable,” it’s governed by the pre-Smith strict scrutiny test. \*\* If you want to read a good discussion of how this would work, I would commend Alito’s Third Circuit opinion on Muslim police officers and beards (I think it’s _FOP v. Newark_). That being said, I’m not sure that it’s a winning argument in this context because the ACA has categorical exemptions (under 50 employees) and not individualized exemptions, so I think it it’s probably a losing argument. ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [December 10, 2013, 7:10pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/388 "2013-12-10T19:10:31Z")
> [@Damuri\_Ajashi](#): > > No, I’m that stupid. And frequently so. I keep forgetting about the RFRA because people keep talking about this issue as a religious freedom issue. In all fairness, Scalia’s textualism (cough constructionism cough) is centuries before the matter at hand anyways. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 10, 2013, 7:24pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/389 "2013-12-10T19:24:40Z")
> [@stpauler](#): > > In all fairness, Scalia’s textualism (cough constructionism cough) is centuries before the matter at hand anyways. I don’t even understand what this means. ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [December 10, 2013, 7:26pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/390 "2013-12-10T19:26:01Z")
> [@Falchion](#): > > I don’t even understand what this means. Scalia’s opinions are constructionist (even if he claims that they’re textualist). Meaning that his opinions are based more on laws that are centuries old than _stare decesis._ ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 10, 2013, 7:34pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/391 "2013-12-10T19:34:13Z")
> [@stpauler](#): > > Scalia’s opinions are constructionist (even if he claims that they’re textualist). Meaning that his opinions are based more on laws that are centuries old than _stare decesis._ How do you define constructionist and textualist? It would seem to me that basis the opinions on the laws instead of stare decisis is a rough approximation of the definition of textualism (although, Smith doesn’t really purport to be textualist at all, it’s more of a common law style application of general principles). ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [December 10, 2013, 8:08pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/392 "2013-12-10T20:08:06Z")
> [@Falchion](#): > > How do you define constructionist and textualist? It would seem to me that basis the opinions on the laws instead of stare decisis is a rough approximation of the definition of textualism (although, Smith doesn’t really purport to be textualist at all, it’s more of a common law style application of general principles). Looking at Scalia’s rulings in items like human rights and his opinions come from the constructionist side. He claims that the constitution does not address these at all. (_United States v. Virginia_ for instance where he said “The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law”). He can clamour all he wants but the textualist argument fails when it comes to his opinions on 14th amendment matters and he’s looking at the exact text there. (Thus bringing me back to the difference between constructionist, someone reading the law as being exactly what it says it is vs textualist being a person who understands that using a cane can mean walking with a cane). ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 10, 2013, 8:25pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/393 "2013-12-10T20:25:15Z")
> [@stpauler](#): > > Looking at Scalia’s rulings in items like human rights and his opinions come from the constructionist side. He claims that the constitution does not address these at all. (_United States v. Virginia_ for instance where he said “The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law”). He can clamour all he wants but the textualist argument fails when it comes to his opinions on 14th amendment matters and he’s looking at the exact text there. (Thus bringing me back to the difference between constructionist, someone reading the law as being exactly what it says it is vs textualist being a person who understands that using a cane can mean walking with a cane). I think I need some more examples to follow you. I think you’re saying that constructionism is more literal (think Hugo Black’s “Congress shall make no law” means “make no law”) while textualism allows for a broader interpretation (but, of course, not intentionalism). I mean, there are a number of ways to read “use a cane” that would be textualist (and I don’t know what the “constructionist” reading would be). ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [December 10, 2013, 8:45pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/394 "2013-12-10T20:45:08Z")
> [@Falchion](#): > > I think I need some more examples to follow you. I think you’re saying that constructionism is more literal (think Hugo Black’s “Congress shall make no law” means “make no law”) while textualism allows for a broader interpretation (but, of course, not intentionalism). I mean, there are a number of ways to read “use a cane” that would be textualist (and I don’t know what the “constructionist” reading would be). I’ll cheat and cite wikipedia first: > [@](#): > > **Strict construction** requires a judge to apply the text only as it is spoken. Once the court has a clear meaning of the text, no further investigation is required. Judges - in this view - **should avoid drawing inferences from a statute or constitution and focus only on the text itself**.[1] Justice Hugo Black (1886-1971) argued that the First Amendment’s injunction, that Congress shall make no law (against certain civil rights), should be construed strictly: no law, thought Black, admits no exceptions. (Ironically, Black has a reputation as a judicial activist.[2]) However, “strict construction” is not a synonym for textualism or originalism, and many adherents of the latter two philosophies are thus misidentified as “strict constructionists”. > > \*\*The textualist will “look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words.”[\*\*1] The textualist thus does not give weight to legislative history materials when attempting to ascertain the meaning of a text. Textualism is often erroneously conflated with originalism, and is advocated by Supreme Court Justices such as Hugo Black and Antonin Scalia, who staked out his claim in his 1997 Tanner Lecture: “[it] is the law that governs, not the intent of the lawgiver.” Oliver Wendell Holmes, Jr., although not a textualist himself, well-captured the philosophy, and its rejection of intentionalism: “We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used … We do not inquire what the legislature meant; we ask only what the statutes mean.”[2] > > Strict constructionism is often misused by laypersons and critics as a synonym for textualism. Nevertheless, although a textualist can be a strict constructionist, they are separate views: Justice Scalia, for example, warns that “[t]extualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be… A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”[3] Similarly, textualism should not be confused with the “plain meaning” approach, a simpler theory used prominently by the Burger Court in cases such as Tennessee Valley Authority v. Hill, which looked to the dictionary definitions of words, without reference to common public understanding or context. And then it goes on to use quotes from Scalia where he claims to be a textualist: [QUOTE=Scalia] The phrase “uses a gun” fairly connoted use of a gun for what guns are normally used for, that is, as a weapon. As I put the point in my dissent, when you ask someone, “Do you use a cane?” you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway.[4] The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated-a compatibility which, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest. Green v Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) Scalia, J., concurring. Even if we were to assume, however, contrary to all reason, that every constitutional claim is ipso facto more worthy, and every statutory claim less worthy, of judicial review, there would be no basis for writing that preference into a statute that makes no distinction between the two. We have rejected such judicial rewriting of legislation even in the more appealing situation where particular applications of a statute are not merely less desirable but in fact raise “grave constitutional doubts.” That, we have said, only permits us to adopt one rather than another permissible reading of the statute, but not, by altering its terms, “to ignore the legislative will in order to avoid constitutional adjudication.” [/QUOTE] The problem is, Scalia is a bit of a textualist when it behooves his personal opinion but for the most part on human rights, he falls along the constructionist pattern. ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [December 10, 2013, 9:06pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/395 "2013-12-10T21:06:55Z")
> [@Bricker](#): > > From that link: > > Neither of these cases supports what you’re saying. > > It’s not a lack of Google-fu. It’s a lack of Truthful-fu. In this post, we see Bricker use his patented “lawyer-speak” to split a hair approximately the size of two atoms and try to make a point based on that. Look, you assshitter, barring time travelers from the future or a miracle from god, that fetus was _dead_. There was no way given modern technology to save the life of that fetus. What’s next, wanna split hairs over Terry Sciavo? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 10, 2013, 10:18pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/396 "2013-12-10T22:18:25Z")
> [@stpauler](#): > > I’ll cheat and cite wikipedia first: > > And then it goes on to use quotes from Scalia where he claims to be a textualist: > > The problem is, Scalia is a bit of a textualist when it behooves his personal opinion but for the most part on human rights, he falls along the constructionist pattern. I understand (and am sympathetic to) Scalia’s “original public meaning” style textual argument. What are some examples of being “constructionist” in human rights cases? (it seems to me that a constructionist is always a textualist, even if the reverse isn’t so; so I don’t know how being a constructionist makes you not a textualist in some situations.). ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 11, 2013, 1:13am UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/397 "2013-12-11T01:13:27Z")
> [@Falchion](#): > > That doesn’t seem like a workable standard. “Free speech for press only” “Am I press?” “I don’t know, say something, we’ll prosecute you, and see what the court says.” Freedom of the press for the press. Other commercial enterprises can have commercial speech. A corporation does not have natural rights the same way that people do. > [@Budget\_Player\_Cadet](#): > > In this post, we see Bricker use his patented “lawyer-speak” to split a hair approximately the size of two atoms and try to make a point based on that. Look, you assshitter, barring time travelers from the future or **a miracle from god** , that fetus was _dead_. There was no way given modern technology to save the life of that fetus. What’s next, wanna split hairs over Terry Sciavo? God’s will dude. To these people, there is a difference between a fetus that is doomed to die and a dead fetus. To them, you can no more kill a doomed fetus than you can shoot an AIDS patient in the 1980’s, even if doing so would save some other life. ---
**Author:** ![ricksummon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ricksummon/32/3333_2.png) [@ricksummon](https://boards.straightdope.com/u/ricksummon)\ **Post date:** [December 11, 2013, 1:33am UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/398 "2013-12-11T01:33:39Z")
Hang on, now. If this isn’t a Constitutional issue, but is solely based on the Religious Freedom Restoration Act, then how does that work? How can an act of Congress restrict _Congress’s_ power to pass other acts? Does the Supreme Court declare Obamacare… uncongressional? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 11, 2013, 3:34pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/399 "2013-12-11T15:34:14Z")
> [@Budget\_Player\_Cadet](#): > > In this post, we see Bricker use his patented “lawyer-speak” to split a hair approximately the size of two atoms and try to make a point based on that. Look, you assshitter, barring time travelers from the future or a miracle from god, that fetus was _dead_. There was no way given modern technology to save the life of that fetus. What’s next, wanna split hairs over Terry Sciavo? Can I shoot a terminally ill cancer patient and be charged only with “discharging a firearm within city limits?” No. Because someone who is definitely going to die is not spoken of the same way as someone who is dead. Nor are they treated the same way under the law. “The Roman Catholic church does refuse to abort an already dead fetus…” was the claim made. No amount of hopeful twisting, or handwaving claims of hair splitting, transforms that into a claim about live but doomed fetuses. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 11, 2013, 3:36pm UTC](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335/400 "2013-12-11T15:36:38Z")
> [@ricksummon](#): > > Hang on, now. If this isn’t a Constitutional issue, but is solely based on the Religious Freedom Restoration Act, then how does that work? How can an act of Congress restrict _Congress’s_ power to pass other acts? Does the Supreme Court declare Obamacare… uncongressional? I take it you’re asking this question without actually reading either law. Who can blame you? In simple terms, the RFRA says, “Any future law must either explicitly note that the RFRA doesn’t apply to it, or it’s applied with strict scrutiny.” The ACA does not explicitly note that it’s an exception to that RFRA rule. [Previous page](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335.md?page=19) [Next page](https://boards.straightdope.com/t/i-pit-hobby-lobby/642335.md?page=21)