Reach of Sibelius v. Hobby Lobby?

[Really_Not_All_That_Bright]

They are self insured and their claims are handled by a third party administrator.

[Whack-a-Mole]

@Bricker

And you understand the fund is not theirs, right? They have a 401K fund. That fund buys mutual funds. Those mutual funds, in turns, by thousands of companies shares. You get that, yes?

Just came across this:

You may be thinking that it must have been beyond Hobby Lobby’s reasonable abilities to know what companies were being invested in by the mutual funds purchased for the Hobby Lobby 401(k) plans—but I am afraid you would be wrong.

Not only does Hobby Lobby have an obligation to know what their sponsored 401(k) is investing in for the benefit of their employees, it turns out that there are ample opportunities for the retirement fund to invest in mutual funds that are specifically screened to avoid any religiously offensive products.

*"To avoid supporting companies that manufacture abortion drugs—or products such as alcohol or pornography—religious investors can turn to a cottage industry of mutual funds that screen out stocks that religious people might consider morally objectionable. The Timothy Plan and the Ave Maria Fund, for example, screen for companies that manufacture abortion drugs, support Planned Parenthood, or engage in embryonic stem cell research."

Apparently, Hobby Lobby was either not aware that these options existed (kind of hard to believe for a company willing to take a case to the Supreme Court over their religious beliefs) or simply didn’t care.

SOURCE: Hobby Lobby Invested In Numerous Abortion And Contraception Products While Claiming Religious Objection

[furt]

@Whack-a-Mole

What they are doing however is being a party to a fund that between them and employee contributions and growth of the fund has $73 million invested in, partly, companies they claim to have a “sincere” opposition to.

Do you have a 401k?

If so, could you defend your own personal investment in tobacco, fossil fuels, unhealthy foods marketed to minors, genetically modified organisms, and sweatshop labor. Surely you don’t claim to have a “sincere” opposition to these things, right?

[Whack-a-Mole]

@furt

Do you have a 401k?

If so, could you defend your own personal investment in tobacco, fossil fuels, unhealthy foods marketed to minors, genetically modified organisms, and sweatshop labor. Surely you don’t claim to have a “sincere” opposition to these things, right?

I did not go to the Supreme Court asking for an exception to a federal law based on “sincerely” held beliefs that I oppose such things yet simultaneously profiting from them.

[Really_Not_All_That_Bright]

He’s kind of got you there.

[Little_Nemo]

@Whack-a-Mole

I did not go to the Supreme Court asking for an exception to a federal law based on “sincerely” held beliefs that I oppose such things yet simultaneously profiting from them.

See, that’s the key factor you missed. The Green family doesn’t object to getting money from abortionists. They object to paying money to abortionists.

[Ambrosio_Spinola]

It appears that the Court considers this decision applicable to all forms of contraception provided that the employer is a closely held corporation and alleges a religious objection to contraception generally.

[rsa]

@Bricker

[snip]
Do you understand the RFRA’s analysis steps?

Do you mean these?:

a) Can a corporation be a “person” within the meaning of RFRA?
b) Does the birth control mandate place a “substantial burden” on Hobby Lobby’s religious beliefs?
c) Does the birth control mandate meet the two-pronged strict scrutiny test (compelling interest + least restrictive means)?

WRT a), That can be argued but is clearly at odds with the “original intent” and the “original meaning”. I thought that was very importatant for the conservative Justices.

WRT b), Well, I am not a lawyer, but I hope that I am a reasonable person. As such, it is clear to me that the answer to b) is NO.

The Hobby Lobby Decision: A Summary & Explanation:

…the majority says that the birth control mandate does place a “substantial burden” on Hobby Lobby’s religious beliefs. And this sentence is crucial: “The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.”

Note how carefully Alito worded that sentence, “according to their religious beliefs” these items are abortifacients. He had to word it this carefully because the four contraceptives at issue (Mirena, Paragard, Plan B, and Ella) are NOT, in fact, abortifacients according to the FDA. This is really crucial. The majority allowed Hobby Lobby to define for itself what in fact causes an abortion. There is a difference, you see, between saying “my religious belief is that abortion is immoral” [the religious belief Hobby Lobby has really pushed hard in all its filings] and saying “my religious belief is that Mirena causes abortion.” The first cannot and should not be challenged by a court, if that’s your belief, that’s your belief. The second is a question of fact, which can be proved or disproved via science. Individuals should not be able to declare that anything they dislike causes abortion and therefore avoid any laws relating to that item. Because there is no steady, safe line to draw between those who think IUDs cause abortions and those who think Tylenol causes abortion. Both are scientifically incorrect statements. For a court to accept the first and throw out the second because it’s “ludicrous” is picking and choosing favorites among religious beliefs, an extremely dangerous path.

And summarizing:

Substantial burden analysis is empty. Just claim that something burdens your religion, and the Court is fine with you relying on blatantly false statements (x pill is an abortifacient) and does not care if you rely on illogical leaps (an employee using an insurance card I gave them to purchase birth control affects my religious beliefs but an employee using the paycheck I gave them to purchase birth control does not) or attenuated connections (even if I never know whether an employee ever uses their health insurance to use this particular contraceptive, my religious beliefs are still burdened).

WRT c), That’s above my pay grade.

[furt]

@Whack-a-Mole

I did not go to the Supreme Court asking for an exception to a federal law based on “sincerely” held beliefs that I oppose such things yet simultaneously profiting from them.

So unless you are involved in a legal case, you don’t have any moral convictions?

You have questioned the sincerity of their claimed belief based on the fact that they have, highly indirectly, invested in companies which make the products they find objectionable. Why they would do this, other than conviction, is unclear (it’s not like opposing these four specific kinds of birth control is going to save them money or anything), but let’s go with that. You’re claiming that their attenuated investments mean they are feigning their moral claims.

Is that a moral standard you’d apply to yourself?

[Buck_Godot]

The difference is that Hobby Lobby has said that following the law like everyone else is too morally burdensome for them because of their religious beliefs. However they don’t see that the moral burden of owning stock is so onerous that they are willing to shift their assets away from companies that supply abortions.

If they are unwilling to make any sacrifice for their own religious beliefs why should others be made to make sacrifices to accommodate them. I may be morally opposed to certain things that end up in my investment portfolio but the only one who is directly affected by my possibly hypocritical claims is myself.

[Damuri_Ajashi]

@Really_Not_All_That_Bright

Bricker: let’s leave aside the role of judges for a moment (and thus the issue of whose job it is to fix this). In your view, does the RFRA allow an adherent of religion X to require male employees to wear beards if it is his sincerely held belief that is is sinful for men to be clean shaven?

I think I could make it a condition of employment that you wear a burka in some states. IIRC, Hooters can make you wear tight tops and shorts to work there.

[Damuri_Ajashi]

@Whack-a-Mole

Just came across this:

I think hobby lobby is using the cross as a political cudgel. There is a cold place in hell for people that do this. YMMV.

[furt]

@Buck_Godot

The difference is that Hobby Lobby has said that following the law like everyone else is too morally burdensome for them because of their religious beliefs. However they don’t see that the moral burden of owning stock is so onerous that they are willing to shift their assets away from companies that supply abortions.

If they are unwilling to make any sacrifice for their own religious beliefs why should others be made to make sacrifices to accommodate them.

1. HL does in fact make many sacrifices for their religious beliefs; a hobby shop that’s closed half the weekend is giving up a shitload of profit.

2. What sacrifices are others being made to make for them? HL is only asking not to be forced into taking an action, not forcing anyone else into doing or not doing anything.

As a matter of law, HL is so far over the legal bar for proving sincerity of belief that even the government made no effort to argue otherwise. There was no serious legal challenge on that point.

As a matter of morality, you are obviously free to see their position as hypocrisy; my question is what the fundamental distinction is between HL’s moral stance and someone who says they’re opposed child labor, while still putting money into a 401k that invests in child-labor-profiting companies.

[Don_t_Call_Me_Shirley]

@Ambrosio_Spinola

It appears that the Court considers this decision applicable to all forms of contraception provided that the employer is a closely held corporation and alleges a religious objection to contraception generally.

Five Catholic men gut access to contraception. Film at 11.

And people were worried that JFK would govern the way the Pope told him to.

[rsa]

@furt

1. HL does in fact make many sacrifices for their religious beliefs; a hobby shop that’s closed half the weekend is giving up a shitload of profit.

This argument is so full of bullshit. How much extra do they make by having customers who shop them exclusively for hobby supplies due to Hobby Lobby wearing its religion on its sleeve? If JesusLand was raking in more money than Disney resorts you’d be crying for the great sacrifice in giving up beer profits.

2. What sacrifices are others being made to make for them? HL is only asking not to be forced into taking an action, not forcing anyone else into doing or not doing anything.

Huh? Having to pay for medical coverage that is provided to employees of most other companies is not a sacrifice?

As a matter of law, HL is so far over the legal bar for proving sincerity of belief that even the government made no effort to argue otherwise. There was no serious legal challenge on that point.

As a matter of law, HL is so far short of the legal bar for proving sincerity of belief that it is not even open to debate.

Anyone who believes this is anything other than a thinly veiled partisan attack on the ACA is either fooling himself or worse.

[Really_Not_All_That_Bright]

@rsa

As a matter of law, HL is so far short of the legal bar for proving sincerity of belief that it is not even open to debate.

Anyone who believes this is anything other than a thinly veiled partisan attack on the ACA is either fooling himself or worse.

… by who? I am no fan of Hobby Lobby or this decision but the sincerity of their belief is simply not at issue. The other side stipulated that their beliefs were sincere. In any event, a determination that they were insincere would have helped nobody. There is certainly a corporation somewhere (if not Conestoga, whose similar case was consolidated with this one by SCOTUS) that sincerely holds the same beliefs.

[rsa]

@Really_Not_All_That_Bright

… by who? I am no fan of Hobby Lobby or this decision but the sincerity of their belief is simply not at issue. The other side stipulated that their beliefs were sincere. In any event, a determination that they were insincere would have helped nobody. There is certainly a corporation somewhere (if not Conestoga, whose similar case was consolidated with this one by SCOTUS) that sincerely holds the same beliefs.

Sorry, I did not mean to imply that they do not hold sincere Christian beliefs and sincere personal beliefs about abortion. What I am saying is insincere is their claim that the contraceptive coverage is an affront to those beliefs. In addition to the discussion of their retirement fund investments above, see also the GQ thread Did Hobby Lobby insurance cover Plan B & Ella until 2012?

[Really_Not_All_That_Bright]

That’s not relevant. Yes, it makes them look like hypocrites, but they are hardly unique in that regard. More likely, they didn’t bother to check what they were paying for (as they claim). In any event, what matters is that HHS didn’t want to argue the issue. No civil court is going to ignore a stipulated fact unless the facts are completely at variance with it.

[Hamlet]

@Hamlet

However, I am, thanks to another wager, ahead one bottle of adult beverage of my choice. I have no problem accepting your “Hobby Lobby wins, you win” bet for that. If we move it to $100 to charity, I’d prefer the case by case determination that Hobby Lobby is different than say Exxon, would be a push.

furt, pay the man.

Congrats on the win, Bricker. I didn’t think Kennedy would buy into the fictions, but he did, and you won. I think I was spot on being concerned about the likelihood of the majority going with a case by case determination that covered Hobby Lobby and the like rather than actually finding for-profits can exercise religion. If you like, however, I can throw “From Bricker” on the memo line of my next donation to St. Peters.

I do think Ginsburg’s opinion is much more based in reality and precedent, especially when she cuts through the baloney of Alito’s attempt to pretend his opinion isn’t a major shift in the law and a rewriting of the intent of RFRA. My faves were:

“Until this litigation, no decision of this court recognized a for-profit corporation’s qualification for a religious exception from a generally applicable law. … The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities.”

“The text of RFRA makes no such statement and the legislative history does not so much as mention for-profit corporations.”

I think the most telling comment was this one, though: “Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.”

That was the biggest laugher I got from Alito’s opinion. He spends paragraphs of his opinion dismissing the difference between non-profit and for-profit corporations, only to fully embrace the difference between “closely held” and “public” corporations. His attempt to portray the majority opinion as somehow limited when the very logic and reasoning he uses shows there is no basis to make the distinction he tries to claim he is making.

Alito’s opinion is very well written (his style and rationality is 1000 times better than anything Scalia has written in a decade), but I just can’t get over his belief that somehow, in some unexplained way, the very logic he uses to find for-profit corporations can further their owner’s religious beliefs will only covers “closely held corporations” and not other for-profits. For all his haranguing of the dissent about the distinctions between for and non-profits, he’s incredibly hypocritical.

But I thought Kennedy would see through all that. But since he didn’t, I’ll send a PM to furt to pay off my debt.

[furt]

@rsa

This argument is so full of bullshit. How much extra do they make by having customers who shop them exclusively for hobby supplies due to Hobby Lobby wearing its religion on its sleeve?

I don’t know. Can you tell me?

If JesusLand was raking in more money than Disney resorts you’d be crying for the great sacrifice in giving up beer profits.

Unlikely, ISTM beer would not sell well at JesusLand.

Huh? Having to pay for medical coverage that is provided to employees of most other companies is not a sacrifice?

Prior to the ACA, the medical coverage HL offered their employees did not include these drugs. It still doesn’t. Nobody is “sacrificing” (“the act of giving up something that you want to keep”) anything, because they never had it.

As a matter of law, HL is so far short of the legal bar for proving sincerity of belief that it is not even open to debate.

Then you need to hastily apply for a job with the Solicitor General’s office, because you’re obviously better at this understanding the law than the government’s lawyers are.

If HHS thought there was a 1% chance that “hypocrisy” was a winning legal argument, they’d have included it.