# Reach of Sibelius v. Hobby Lobby? **URL:** \ **Category:** Great Debates\ **Created:** [March 21, 2014, 1:54am UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201 "2014-03-21T01:54:51Z")\ **Posts on this page:** 20\ **Page:** 12
**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:** [March 28, 2014, 2:18pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/221 "2014-03-28T14:18:45Z")
> [@Hamlet](#): > > Which is why I pointed out the context. I think there is an argument to be made that the “context” provided isn’t persuasive enough to overcome the stated definition (which illustrates the law school ready example of textualism overwhelming intent), which is how I think Scalia, Thomas, and Alito will rule in the case. I think the question is whether Breyer and Kennedy will join them. > > But the next step in the discussion is, if you do believe textualism is the only way, what is the nature of the free expression right that the corporation wants to assert and whether the mandate is an infringement upon that right. And that’s another 4 pages worth of discussion. I am increasingly convinced that Hobby Lobby is going to win, but I am more convinced that a Hobby Lobby win will create a Wild West of corporate religious objections. The Jehovah’s Witness thing is the least of it. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [March 28, 2014, 2:22pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/222 "2014-03-28T14:22:44Z")
> [@Hamlet](#): > > If I understand, you’re wondering why the distinction I draw is between religious organizations and for-profit corporations? Is that it? Do we know that Northwest Indian Cemetery Protective Association was previously considered a religious organization? I thought that they were simply an organization that was making a religious claim. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 28, 2014, 2:45pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/223 "2014-03-28T14:45:24Z")
> [@Nars\_Glinley](#): > > Do we know that Northwest Indian Cemetery Protective Association was previously considered a religious organization? I thought that they were simply an organization that was making a religious claim. The only thing I found in the opinion was this: “After exhausting their administrative remedies, respondents – an Indian organization, individual Indians, nature organizations and individual members of those organizations, and the State of California.” [Cite](http://supreme.justia.com/cases/federal/us/485/439/case.html) The entirety of the opinion is a discussion of individual rights to free expression, not free expression as a corporation, whether profit or non-profit. It certainly could be context for the RFRA’s burden test, but I’m not seeing any distinction between religious organizations and for profit corporations. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2014, 2:46pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/224 "2014-03-28T14:46:43Z")
> [@Hamlet](#): > > Unambigious? Wouldn’t that require the statute to define the term person? The very reason you go to the Dictionary Act is because the term is ambiguous. If it weren’t ambiguous in the first place, you wouldn’t have to do that. Of course it’s ambiguous. > > And Dictionary Acts that specifically say that the context needs to be considered when deciding definitions of undefined terms. Before they do, will you answer the questions I previously posted? Why you think that RFRA intended to extend the right to free expression of religion to non-profit corporations when they specifically aren’t mentioned with individuals and religious organizations as the beneficiaries of the act? Because the Dictionary Act existed when Congress passed the RFRA. And because I can point to other examples of legislation where Congress carved out non-profits for special treatment its legislation, leading me to conclude that Congress didn’t forget to do so with the RFRA, because Congress has remembered when it wanted to. > [@](#): > > Or if you believe, even without RFRA, the Constitution itself protects a for-profit corporation’s free exercise rights? I am not sure that’s a position I can strongly defend, but in this case, I rest my support for Hobby Lobby on the RFRA. For the moment, I take no position on the question of pure constitutional guarantees for for-profit corporations. > [@](#): > > And, if I may add another, do you believe that both of those apply to all corporations, regardless of ownership structure? Yes. I don’t believe they SHOULD. I think the wisest path would be to carve out exceptions for non-profits, and for-profits that explicitly adopt religious purposes in their charters. That’s what I’d vote for as a Congressman. But as a judge, I should limit my role to interpreting the law Congress passes, not writing in my own view of wise policy. ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [March 28, 2014, 3:13pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/225 "2014-03-28T15:13:32Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I am increasingly convinced that Hobby Lobby is going to win, but I am more convinced that a Hobby Lobby win will create a Wild West of corporate religious objections. The Jehovah’s Witness thing is the least of it. If Hobby Lobby’s convictions had remained true the whole time, then I’d concede a possiblity. But just two years ago this wasn’t a problem for them and now there’s Jesus? Bullshit. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2014, 3:20pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/226 "2014-03-28T15:20:45Z")
> [@Hamlet](#): > > Or if you believe, even without RFRA, the Constitution itself protects a for-profit corporation’s free exercise rights? > [@Bricker](#): > > I am not sure that’s a position I can strongly defend, but in this case, I rest my support for Hobby Lobby on the RFRA. For the moment, I take no position on the question of pure constitutional guarantees for for-profit corporations. “Except in rare and special instances, the due process of law clause contained in the fifth Amendment is not a limitation upon the taxing power conferred upon Congress by the Constitution.” _A. Magnano Co. v. Hamilton_, 292 US 40 (1934), quoting Brushaber v. Union Pacific R. Co., 240 US 1 (1916). So less tentatively than a moment ago: no. I don’t think the First Amendment helps Hobby Lobby against the ACA. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 28, 2014, 3:21pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/227 "2014-03-28T15:21:52Z")
> [@Bricker](#): > > Because the Dictionary Act existed when Congress passed the RFRA. And because I can point to other examples of legislation where Congress carved out non-profits for special treatment its legislation, leading me to conclude that Congress didn’t forget to do so with the RFRA, because Congress has remembered when it wanted to. But they just failed to mention it at all in the legislative history? Not one mention in the purpose section of the statute itself that they were extending free exercise to for-profit corporations? Just slipped everyone’s mind? How about in the discussions or debate? Was there anyone who pointed out this change was going to happen? Maybe list it as the actual purpose of the statute? Congress enacted RFRA to reset caselaw back to pre-Smith ruling, not to extend free expression to for-profit corporations. I am, however, impressed with your ability to read their minds absent their actually stating it. > [@Bricker](#): > > I am not sure that’s a position I can strongly defend, but in this case, I rest my support for Hobby Lobby on the RFRA. For the moment, I take no position on the question of pure constitutional guarantees for for-profit corporations. Why not? Surely you have an opinion on the matter. > [@Bricker](#): > > Yes. > > I don’t believe they SHOULD. I think the wisest path would be to carve out exceptions for non-profits, and for-profits that explicitly adopt religious purposes in their charters. That’s what I’d vote for as a Congressman. > > But as a judge, I should limit my role to interpreting the law Congress passes, not writing in my own view of wise policy. Would extending free-exercise protections to all corporations be a massive change in the law and court’s interpretation of the First Amendment? While I admire your ability to follow through on your belief to it’s absurd end, I find it absolutely insane to think that Congress intended to change 200 years of jurisprudence, create a whole new area of law covering religious for-profits, and to grant massive corporations the right to claim religious expression without mentioning in the purpose of the statute or in any of the legislative history. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2014, 3:28pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/228 "2014-03-28T15:28:32Z")
> [@stpauler](#): > > If Hobby Lobby’s convictions had remained true the whole time, then I’d concede a possiblity. But just two years ago this wasn’t a problem for them and now there’s Jesus? Bullshit. Can you explain this? Hobby Lobby objects to only four of the twenty covered drugs. This isn’t a new objection. They have always objected to the process those drugs use. When they became aware that two of the drugs that were permitted had abortion effects, they removed them. they did this before the ACA restrictions were published, and in fact, by doing so, lost the chance to claim they were “grandfathered.” What, specifically, do you mean? ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [March 28, 2014, 3:29pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/229 "2014-03-28T15:29:23Z")
> [@stpauler](#): > > If Hobby Lobby’s convictions had remained true the whole time, then I’d concede a possiblity. But just two years ago this wasn’t a problem for them and now there’s Jesus? Bullshit. Wait, what? Are you saying that two years ago, Hobby Lobby provided insurance to its employees that covered abortifacient drugs? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2014, 3:31pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/230 "2014-03-28T15:31:10Z")
> [@Hamlet](#): > > Would extending free-exercise protections to all corporations be a massive change in the law and court’s interpretation of the First Amendment? No. What case would be overturned as a result? > [@](#): > > While I admire your ability to follow through on your belief to it’s absurd end, I find it absolutely insane to think that Congress intended to change 200 years of jurisprudence, create a whole new area of law covering religious for-profits, and to grant massive corporations the right to claim religious expression without mentioning in the purpose of the statute or in any of the legislative history. 200 years? Really? What case from 200 years ago held differently? ---
**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:** [March 28, 2014, 3:53pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/231 "2014-03-28T15:53:14Z")
> [@Bricker](#): > > No. What case would be overturned as a result? What about the Civil Rights Act itself? Currently, the Act forbids companies from discriminating against its employees or customers on the basis of religion. Since the RFRA post-dates the Act, would a decision in favor of Hobby Lobby effectively repeal the Civil Rights Act? Could a for-profit corporation hire only employees of a certain faith? Could they allow only male customers and bar women from their stores? ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [March 28, 2014, 3:58pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/232 "2014-03-28T15:58:57Z")
> [@Nars\_Glinley](#): > > Wait, what? Are you saying that two years ago, Hobby Lobby provided insurance to its employees that covered abortifacient drugs? [http://www.reddirtreport.com/prairie-opinions/hobby-lobby-provided-emergency-contraceptives-they-opposed-them](http://www.reddirtreport.com/prairie-opinions/hobby-lobby-provided-emergency-contraceptives-they-opposed-them) > [@](#): > > It is quite hard to take the claims by Hobby Lobby seriously. The main drugs in question in the case brought before the Supreme Court are the emergency contraceptives Plan-B and Ella. One huge problem with this situation is that up until 2012, Hobby Lobby provided them as part of their insurance plan. Only when they realized that Obamacare was going to mandate this coverage did they suddenly become interested in not providing these drugs. > > In their initial complaint to the United States District Court for the Western District of Oklahoma, Hobby Lobby stated, “After learning about the current HHS mandate controversy…Hobby Lobby discovered that the formulary for its prescription drug policy included two drugs - Plan B and Ella - that could cause an abortion” (pg. 15, pt. #55). This is a huge indictment upon the Green family and Hobby Lobby. > > - See more at: [http://www.reddirtreport.com/prairie-opinions/hobby-lobby-provided-emergency-contraceptives-they-opposed-them#sthash.ToApBrmx.dpuf](http://www.reddirtreport.com/prairie-opinions/hobby-lobby-provided-emergency-contraceptives-they-opposed-them#sthash.ToApBrmx.dpuf) ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 28, 2014, 4:00pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/233 "2014-03-28T16:00:12Z")
> [@Bricker](#): > > No. What case would be overturned as a result? Were the SSM cases a change in the law? Goodridge didn’t overrule a case, ergo it wasn’t a massive change at all. That’s the logic you want to use? > [@Bricker](#): > > 200 years? Really? What case from 200 years ago held differently? In the past 200 years of jurisprudence, has any case held that all for-profit corporations has the rights to free exercise of religion? Wouldn’t recognizing that be a change in the law? Hell, you yourself said that the Free Exercise Clause doesn’t apply to Hobby Lobby, and RFRA was enacted in 1993, so prior to RFRA, for-profit corporations wouldn’t have the right to free exercise. To do so by statute would be a massive change in the law. One that, apparently, wasn’t important enough to mention. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [March 28, 2014, 4:04pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/234 "2014-03-28T16:04:49Z")
IMO, that’s not as sinister as it sounds. It seems that they were unwittingly providing drugs that they were opposed to. I think that it’s easier to blame incompetence than to say “because Jesus”. ETA. Dammit. Meant to quote stpauler. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2014, 4:06pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/235 "2014-03-28T16:06:31Z")
> [@Nars\_Glinley](#): > > IMO, that’s not as sinister as it sounds. It seems that they were unwittingly providing drugs that they were opposed to. I think that it’s easier to blame incompetence than to say “because Jesus”. Especially since the change only involved two drugs – they had always banned the other two. ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [March 28, 2014, 4:47pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/236 "2014-03-28T16:47:48Z")
> [@Bricker](#): > > Especially since the change only involved two drugs – they had always banned the other two. Cite please ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2014, 4:58pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/237 "2014-03-28T16:58:12Z")
> [@stpauler](#): > > Cite please You made the initial claim: > [@stpauler](#): > > If Hobby Lobby’s convictions had remained true the whole time, then I’d concede a possiblity. But just two years ago this wasn’t a problem for them and now there’s Jesus? Bullshit. But OK, I’m a fun guy: > [@](#): > > Respondents believe that human beings deserve protection from the moment of conception, and that providing insurance coverage for items that risk killing an embryo makes them complicit in abortion. Pet.App.50a-51a. Hobby Lobby’s health plan therefore excludes drugs that can terminate a pregnancy, such as RU-486. The plan likewise excludes four drugs or devices that can prevent an embryo from implanting in the womb—namely, Plan B, Ella, and two types of intrauterine devices. Indeed, when Respondents discovered that two of these drugshad been included—without their knowledge—in the plan formulary, they immediately removed them. > > Pet.App.174a. And: > [@](#): > > Despite their sincere religious objections to facilitating abortion, Respondents do not qualify for any exemption from the mandate. Having altered their plan terms before the mandate was promulgated, Hobby Lobby’s health plan is not “grandfathered,” Pet.App.14a; JA140, and with well over 50 employees, they must offer qualifying insurance. Both quoting the Brief for Respondents in the current Supreme Court case. ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [March 28, 2014, 5:02pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/238 "2014-03-28T17:02:07Z")
> [@Bricker](#): > > Especially since the change only involved two drugs – they had always banned the other two. > [@Bricker](#): > > You made the initial claim: > Both quoting the Brief for Respondents in the current Supreme Court case. Maybe I’m being dense, but I’m not seeing where they “always banned the other two”. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2014, 5:04pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/239 "2014-03-28T17:04:22Z")
> [@Hamlet](#): > > Were the SSM cases a change in the law? Goodridge didn’t overrule a case, ergo it wasn’t a massive change at all. Marriage existed 200 years ago. For-profit and non-profit corporate forms did not. > [@](#): > > In the past 200 years of jurisprudence, has any case held that all for-profit corporations has the rights to free exercise of religion? Wouldn’t recognizing that be a change in the law? Hell, you yourself said that the Free Exercise Clause doesn’t apply to Hobby Lobby, and RFRA was enacted in 1993, so prior to RFRA, for-profit corporations wouldn’t have the right to free exercise. To do so by statute would be a massive change in the law. One that, apparently, wasn’t important enough to mention. I didn’t quite say the Free Exercise Clause doesn’t apply to Hobby Lobby. I said that it doesn’t apply to Hobby Lobby’s ACA complaint. There were no such things as for-profit / non-profit corporations 200 years ago. But there were corporations, and those corporations were certainly able to exercise religious practices. “The legislature may enact laws more effectually to enable all sects to accomplish the great objects of religion by giving them corporate rights for the management of their property and the regulation of their temporal as well as spiritual concerns.” _Terrett v. Taylor_, 13 U.S. 9 Cranch 43 (1815). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2014, 5:07pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/240 "2014-03-28T17:07:31Z")
> [@stpauler](#): > > maybe i’m being dense, but i’m not seeing where they “always banned the other two”. > [@](#): > > four of the twenty approved methods—two types of intrauterine devices (iuds) and the emergency contraceptives commonly known as plan b and ella—can function by preventing the implantation of a fertilized egg. > . > . > . > Hobby lobby’s health plan therefore excludes drugs that can terminate a pregnancy, such as ru-486. The plan likewise excludes four drugs or devices that can prevent an embryo from implanting in the womb—namely, plan b, ella, and two types of intrauterine devices. Indeed, when respondents discovered that two of these drugs had been included—without their knowledge—in the > plan formulary, they immediately removed them. > > Pet.app.174a. 4 - 2 = 2 Can you now explain what you meant when you said: > [@stpauler](#): > > If Hobby Lobby’s convictions had remained true the whole time, then I’d concede a possiblity. But just two years ago this wasn’t a problem for them and now there’s Jesus? Bullshit. [Previous page](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201.md?page=11) [Next page](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201.md?page=13)