# 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:** 7
**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 26, 2014, 2:02pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/121 "2014-03-26T14:02:00Z")
> [@Bricker](#): > > And yes, absolutely the Fifth. “[W]e are of the opinion that there is a clear distinction . . . between an individual and a corporation, and . . . the latter has no right to refuse to submit its books and papers for an examination at the suit of the State.” The Court explained that the corporation “is a creature of the State,” ibid., with powers limited by the State. As such, the State may, in the exercise of its right to oversee the corporation, demand the production of corporate records. … **Although Hale settled that a corporation has no Fifth Amendment privilege,** the Court did not address whether a corporate officer could resist a subpoena for corporate records by invoking his personal privilege – Hale had been protected by immunity." Braswell v. US, 487 U.S. 99 (1988) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 26, 2014, 3:39pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/122 "2014-03-26T15:39:07Z")
> [@Hamlet](#): > > No. Because they aren’t asserting their own First Amendment claim, they’re asserting it on behalf of the customers. He specifically says: > > _"GENERAL VERRILLI: Well, I think in that circumstance, you would have, I think, an ability for customers to bring suit. I think you might recognize third party standing on behalf of the corporation on the corporations, on behalf of customers. So a suit like that could be brought._ > > Then, after that, is when he further clarifies and says, as I quoted above: > > _“GENERAL VERRILLI: Well, I think our response is what the Court said in Part 3 of the Lee opinion, which is that once you make a choice to go into the commercial sphere, which you certainly do when you incorporate as a for profit corporation, you are making a choice to live by the rules that govern you and your competitors in the commercial sphere.”_ > > So, no, your assertion that they somehow conceded that a corporation has its own religious exercise is patently false. He specifically says that they may be able to assert it on behalf of their customers, but very definitively says the for-profit corporation doesn’t have free exercise on its own. > > Want to try again? Nope. He conceded it. Then after Breyer tossed him a lifeline, he backed away from his concession. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 26, 2014, 3:48pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/123 "2014-03-26T15:48:38Z")
> [@Hamlet](#): > > “[W]e are of the opinion that there is a clear distinction . . . between an individual and a corporation, and . . . the latter has no right to refuse to submit its books and papers for an examination at the suit of the State.” The Court explained that the corporation “is a creature of the State,” ibid., with powers limited by the State. As such, the State may, in the exercise of its right to oversee the corporation, demand the production of corporate records. … > > **Although Hale settled that a corporation has no Fifth Amendment privilege,** the Court did not address whether a corporate officer could resist a subpoena for corporate records by invoking his personal privilege – Hale had been protected by immunity." > > Braswell v. US, 487 U.S. 99 (1988) Perhaps the word “absolutely,” was confusing. I meant that corporations absolutely had protections under the Fifth Amendment, not that “absolutely” all the protections of the amendment apply. It’s true that corporate books and records are not “private papers” protected by the Fifth Amendment. Hale stands for that proposition, not the sweeping generalization that no Fifth Amendment rights whatsoever inure to corporate entities. You can’t charge a corporation with a federal criminal act unless a grand jury indicts. You can’t re-try a corporation on a criminal charge subsequent to an acquittal. You can’t deprive a corporation of property without due process of law, nor take a corporation’s property for public use without just compensation. True? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 26, 2014, 4:00pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/124 "2014-03-26T16:00:08Z")
[Barbara Boxer asks: Why are there no similar complaints about Viagra?](http://www.politico.com/story/2014/03/barbara-boxer-obamacare-birth-control-viagra-104990.html) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 26, 2014, 4:06pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/125 "2014-03-26T16:06:23Z")
> [@BrainGlutton](#): > > [Barbara Boxer asks: Why are there no similar complaints about Viagra?](http://www.politico.com/story/2014/03/barbara-boxer-obamacare-birth-control-viagra-104990.html) Because Hobby Lobby does not view providing Viagra as sinful. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [March 26, 2014, 4:08pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/126 "2014-03-26T16:08:20Z")
> [@Bricker](#): > > Because Hobby Lobby does not view providing Viagra as sinful. Cite? Or are they simply unaware that the insurance they provide also pays for boner pills? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 26, 2014, 4:24pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/127 "2014-03-26T16:24:38Z")
> [@Fear\_Itself](#): > > Cite? Or are they simply unaware that the insurance they provide also pays for boner pills? How can I cite a negative claim? Do you imagine Hobby Lobby has published a list of all things it does NOT find sinful? Hobby Lobby affirmative states their religious beliefs concerning contraception: > [@Hobby Lobby SCOTUS brief](#): > > Respondents’ religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception. This is consistent with many varieties of Christian teaching. I am unaware of any Christian teaching that would find Viagra sinful. > [@brief](#): > > Hobby Lobby’s official statement of purpose commits the company to “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.” > [@brief](#): > > In the same way, Respondents’ faith affects the insurance offered in Hobby Lobby’s self-funded health plan. 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 26, 2014, 4:27pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/128 "2014-03-26T16:27:36Z")
(omitted) ---
**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 26, 2014, 4:50pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/129 "2014-03-26T16:50:07Z")
> [@Bricker](#): > > Nope. He conceded it. Then after Breyer tossed him a lifeline, he backed away from his concession. Swing and a miss. Maybe I should stop expecting more from you than snipping his entire quote and trying to pretend that something is conceded when the opposite is very clearly stated repeatedly both before and after your snipped response. [Look at the transcript.](http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf) (It starts at page 78). Alito asks his question, and before Verrilli can even finish the answer, he’s interrupted again by Alito, and then Kennedy. When he is given the opportunity to respond (after two more Alito interruptions), he says, yes, they could raise a first amendment claim **on behalf of the customers**. Now I suppose you would have liked Verrilli to continue to interrupt and talk over the justices to finish his sentence, but I’m told that’s not a great way to proceed before the Supreme Court. You take one part of his answer, pretend he didn’t continue his explanation, and then claim he somehow “conceded” something, despite the fact he very clearly denied that very thing not 20 seconds later. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [March 26, 2014, 4:52pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/130 "2014-03-26T16:52:36Z")
> [@Hamlet](#): > > Why not? If 50% of shareholders agree that it is immoral for Microsoft to pay for blood transfusions, why shouldn’t they be able to claim religious objections? Where is this line of yours drawn? Majority owners? S Corporations? 1,000,000 outstanding shares? Do you want the judiciary deciding which for profit companies are entitled to religious objections and which aren’t, and which of those religious objections are legitimate and which are not? How do you imagine this recognition of for-profit religious objections works from here on out? In the case of these small owner-operated companies, they were founded with the intent of being Christian businesses. Which is why they aren’t public. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [March 26, 2014, 4:53pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/131 "2014-03-26T16:53:11Z")
Another honest-to-God, I don’t know the answer but I would like to learn, question: Apart from RFRA, do other statutes direct courts on what standards of scrutiny they must apply in interpreting the Constitution? Is it controversial at all for the Legislative Branch to direct the Courts to make some type of hurdle or another in determining how the Constitution applies to a particular controversy? The gist of my question is this: let’s say libertarians took over Congress and the White House, and made a law which required all governmental actions to withstand strict scrutiny. The goal of such a law would be to end Medicare, the Department of Education, certain parts of the Civil Rights Act of 1964, or whathaveyou. Or, conversely, a group of authoritarians take power and direct that every law shall be interpreted under a rational basis, so that governmental power could take on as much as could possibly be allowed. Are the courts really bound to follow such laws in place of their own judgment on the meaning of constitutional principles? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 26, 2014, 4:56pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/132 "2014-03-26T16:56:05Z")
> [@Ravenman](#): > > Apart from RFRA, do other statutes direct courts on what standards of scrutiny they must apply in interpreting the Constitution? Is it controversial at all for the Legislative Branch to direct the Courts to make some type of hurdle or another in determining how the Constitution applies to a particular controversy? Answering this is too much typing without getting paid. There have been plenty of statutes over the years that have been passed in response to court rulings, with the evident intent of changing the result of that ruling. Some have been successful; some not. > [@](#): > > Are the courts really bound to follow such laws in place of their own judgment on the meaning of constitutional principles? In the case of the RFRA, it seems they are – it’s been upheld against the federal government. ---
**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 26, 2014, 4:57pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/133 "2014-03-26T16:57:26Z")
> [@Bricker](#): > > Perhaps the word “absolutely,” was confusing. I meant that corporations absolutely had protections under the Fifth Amendment, not that “absolutely” all the protections of the amendment apply. > > It’s true that corporate books and records are not “private papers” protected by the Fifth Amendment. Hale stands for that proposition, not the sweeping generalization that no Fifth Amendment rights whatsoever inure to corporate entities. > > You can’t charge a corporation with a federal criminal act unless a grand jury indicts. You can’t re-try a corporation on a criminal charge subsequent to an acquittal. You can’t deprive a corporation of property without due process of law, nor take a corporation’s property for public use without just compensation. > > True? As far as I’m aware, yes. I don’t think that there is any argument that the state of the law now recognizes some of the protections of the Bill of Rights extend to Corporations, and that some of them don’t. I’ll even concede that. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 26, 2014, 4:57pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/134 "2014-03-26T16:57:27Z")
> [@Hamlet](#): > > Swing and a miss. Maybe I should stop expecting more from you than snipping his entire quote and trying to pretend that something is conceded when the opposite is very clearly stated repeatedly both before and after your snipped response. > > [Look at the transcript.](http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf) (It starts at page 78). > > Alito asks his question, and before Verrilli can even finish the answer, he’s interrupted again by Alito, and then Kennedy. When he is given the opportunity to respond (after two more Alito interruptions), he says, yes, they could raise a first amendment claim **on behalf of the customers**. Now I suppose you would have liked Verrilli to continue to interrupt and talk over the justices to finish his sentence, but I’m told that’s not a great way to proceed before the Supreme Court. > > You take one part of his answer, pretend he didn’t continue his explanation, and then claim he somehow “conceded” something, despite the fact he very clearly denied that very thing not 20 seconds later. I don’t agree. In listening to the argument itself, his intent to concede the point seemed very clear, and his words did the same – until, as I said, Breyer rescued him. ---
**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 26, 2014, 5:00pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/135 "2014-03-26T17:00:01Z")
> [@adaher](#): > > In the case of these small owner-operated companies, they were founded with the intent of being Christian businesses. Which is why they aren’t public. So you draw the line at the public/private ownership difference? Privately owned for-profit corporations can have religious expression, but publicly owned ones can’t? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 26, 2014, 5:00pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/136 "2014-03-26T17:00:48Z")
> [@Hamlet](#): > > I’ll even concede that. Until Breyer joins the SDMB? 😃 ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [March 26, 2014, 5:02pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/137 "2014-03-26T17:02:18Z")
> [@Ravenman](#): > > Another honest-to-God, I don’t know the answer but I would like to learn, question: > > Apart from RFRA, do other statutes direct courts on what standards of scrutiny they must apply in interpreting the Constitution? Is it controversial at all for the Legislative Branch to direct the Courts to make some type of hurdle or another in determining how the Constitution applies to a particular controversy? > > The gist of my question is this: let’s say libertarians took over Congress and the White House, and made a law which required all governmental actions to withstand strict scrutiny. The goal of such a law would be to end Medicare, the Department of Education, certain parts of the Civil Rights Act of 1964, or whathaveyou. > > Or, conversely, a group of authoritarians take power and direct that every law shall be interpreted under a rational basis, so that governmental power could take on as much as could possibly be allowed. > > Are the courts really bound to follow such laws in place of their own judgment on the meaning of constitutional principles? The courts are a co-equal branch and can of course say that they will decide what standards apply themselves. I think the reason they respect Congress on the strict scrutiny standard is because the 1st amendment is already usually regarded as requiring a strict scrutiny justification to infringe. RFRA just makes this clear so justices who are soft on the 1st amendment have a harder time weaseling to justify government action. Now let’s say Congress decided to be too cute by half and pass a law stating that ALL laws, retroactively, had to satisfy strict scrutiny. I’ll leave aside that strict scrutiny can’t really apply to government programs because the government spending power is near absolute anyway, as is the government taxing power. That right there would make the law only useful when dealing with laws that carry criminal penalties that don’t have to do with Congress’ spending or taxing power. But if we assume it would lead to the striking down of Social Security and Medicare, the court wouldn’t hesitate for a second to say, "Yeah, I don’t think so. "And declare the law unconstitutional for infringing on the powers of the judicial branch. With a stern warning about trying to get out of political accountability by making the courts do their dirty work for them… ---
**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 26, 2014, 5:02pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/138 "2014-03-26T17:02:29Z")
> [@Bricker](#): > > I don’t agree. In listening to the argument itself, his intent to concede the point seemed very clear, and his words did the same – until, as I said, Breyer rescued him. I can’t control what you want to hear. I can only point out your conclusion is specifically denied by him both right before and right after the part you “hear” as being conceded. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [March 26, 2014, 5:05pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/139 "2014-03-26T17:05:04Z")
> [@Hamlet](#): > > So you draw the line at the public/private ownership difference? Privately owned for-profit corporations can have religious expression, but publicly owned ones can’t? I’m inclined to say the simple answer is yes, and even with owner-run corporations, I’d have to see a history of religion put into practice in the business. A company like Chik-Fil-A or Hobby Lobby are overtly religious and so I frankly see no reason why they can’t be overtly religious. The owners founded them to be so and so they are. But if you have a business owner who has always just run their business like any other business and all of a sudden doesn’t like something that will cost him money, I’d treat that with a lot more skepticism. But that’s just how I see the issue, the justices probably don’t agree. But I do think it’s important that Hobby Lobby was founded as an explicitly religious corporation, and I also think society not only has a place for such businesses, but needs such businesses. ---
**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 26, 2014, 5:07pm UTC](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201/140 "2014-03-26T17:07:44Z")
By the by, I was looking for live audio of the argument, but the Supreme Court doesn’t post the audio until a couple weeks after. Where did you hear the argument **Bricker** , because I want to hear live the arguments in Riley v. California. [Previous page](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201.md?page=6) [Next page](https://boards.straightdope.com/t/reach-of-sibelius-v-hobby-lobby/684201.md?page=8)