# Remedy for Hobby Lobby decision? **URL:** \ **Category:** Great Debates\ **Created:** [July 1, 2014, 2:26am UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060 "2014-07-01T02:26:41Z")\ **Posts on this page:** 20\ **Page:** 9
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 3, 2014, 5:02pm UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/161 "2014-07-03T17:02:34Z")
> [@Don\_t\_Call\_Me\_Shirley](#): > > (Although if the RFRA were to be amended, I would expect Hobby Lobby to re-file on 1st amendment grounds, and this court would probably find for them.) Unlikely. The precedent in First Amendment cases of this type is Employment Division v. Smith, which if applied cuts against Hobby Lobby. In fact, the RFRA was passed specifically to reverse the Court’s action in Employment Division. And Scalia wrote it. Kennedy joined it. What made you reach your conclusion, given those facts? ---
**Author:** ![Don\_t\_Call\_Me\_Shirley](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@Don\_t\_Call\_Me\_Shirley](https://boards.straightdope.com/u/Don_t_Call_Me_Shirley)\ **Post date:** [July 3, 2014, 6:14pm UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/162 "2014-07-03T18:14:25Z")
> [@Bricker](#): > > Unlikely. The precedent in First Amendment cases of this type is Employment Division v. Smith, which if applied cuts against Hobby Lobby. In fact, the RFRA was passed specifically to reverse the Court’s action in Employment Division. > > And Scalia wrote it. Kennedy joined it. > > What made you reach your conclusion, given those facts? Smith was 25 years ago. Times have changed. The facts of the cases are sufficiently different, and these five justices are sufficiently partisan and/or ideological, that I’ll bet they could figure out a way to find for Hobby Lobby. Alito says in his HL decision that it only applies to contraception, not other religious beliefs such as vaccinations, so I’m guessing he could find a way to distinguish contraception coverage, which of course he opposes as a good Catholic, from illegal drug use. Never underestimate the power of Alito to find a justification to rule in favor of a big business. Smith was one guy (or maybe two, I think there was someone else on the case with him). Hobby Lobby is a business. Alito is absolutely not going to rule against a business, and Scalia probably isn’t either. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [July 3, 2014, 6:48pm UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/163 "2014-07-03T18:48:38Z")
> [@Ambrosio\_Spinola](#): > > If the Court _doesn’t_ expand this ruling, then what it really stands for is that Reasonable Religious Beliefs - which coincidentally and conveniently happen to be shared by the five members of the Court in the majority - will be afforded extraordinary protection. Whereas silly religious beliefs, such as objecting to vaccinations - which strangely enough aren’t held by members of the Court - are not. The Court shouldn’t be in the business of granting religious privileges to particular sorts who believe the right things \ I agree with this last sentiment. But I don’t see what limit they’d apply that doesn’t make this logic equally applicable to Jehovah’s Witness’ companies that don’t want to pay for blood transfusions. Congress opened that door with the plain text, they can close it. But I don’t see how SCOTUS can force this to be the narrow decision they describe it as. As I said, I think it was just a bit of political cowardice. > [@](#): > > For what it’s worth, I agree with the dissent that this result is unintentional, and further that it’s a bad idea, but while I wouldn’t go so far as to call it “absolutely correct” the majority decision is textually justified. Yes, even if one finds a different argument more persuasive (I don’t), I don’t see how this decision could be described as “out of left field” or crazy or whatever. The legislation says what it says, not what some of us wished it did. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [July 3, 2014, 6:53pm UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/164 "2014-07-03T18:53:28Z")
> [@Bricker](#): > > The four that disagree are four lawyers who follow the “BigT” school of thought: judges should help make new law according to their moral beliefs. What does “BigT” refer to? ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [July 3, 2014, 6:53pm UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/165 "2014-07-03T18:53:24Z")
> [@Don\_t\_Call\_Me\_Shirley](#): > > Smith was 25 years ago. Times have changed. The facts of the cases are sufficiently different, and these five justices are sufficiently partisan and/or ideological, that I’ll bet they could figure out a way to find for Hobby Lobby. Alito says in his HL decision that it only applies to contraception, not other religious beliefs such as vaccinations, so I’m guessing he could find a way to distinguish contraception coverage, which of course he opposes as a good Catholic, from illegal drug use. > > Never underestimate the power of Alito to find a justification to rule in favor of a big business. Smith was one guy (or maybe two, I think there was someone else on the case with him). Hobby Lobby is a business. Alito is absolutely not going to rule against a business, and Scalia probably isn’t either. Well corporations are people, and people are people, and people have equality under the law, but clearly, some people are more equal than others – the corporate people. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 3, 2014, 8:37pm UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/166 "2014-07-03T20:37:54Z")
> [@Don\_t\_Call\_Me\_Shirley](#): > > Smith was 25 years ago. Times have changed. The facts of the cases are sufficiently different, and these five justices are sufficiently partisan and/or ideological, that I’ll bet they could figure out a way to find for Hobby Lobby. Alito says in his HL decision that it only applies to contraception, not other religious beliefs such as vaccinations, so I’m guessing he could find a way to distinguish contraception coverage, which of course he opposes as a good Catholic, from illegal drug use. > > Never underestimate the power of Alito to find a justification to rule in favor of a big business. Smith was one guy (or maybe two, I think there was someone else on the case with him). Hobby Lobby is a business. Alito is absolutely not going to rule against a business, and Scalia probably isn’t either. Scalia DID rule against a business when he authored Employment Division. So in your view, Scalia, the author of Employment Division, would reverse it? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 3, 2014, 8:39pm UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/167 "2014-07-03T20:39:05Z")
> [@tim314](#): > > What does “BigT” refer to? A poster here. ---
**Author:** ![ITR\_champion](https://avatars.discourse-cdn.com/v4/letter/i/c67d28/32.png) [@ITR\_champion](https://boards.straightdope.com/u/ITR_champion)\ **Post date:** [July 3, 2014, 9:33pm UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/168 "2014-07-03T21:33:18Z")
> [@standingwave](#): > > [Hobby Lobby Decision Likely to Open a Legal Floodgate](http://www.newsweek.com/hobby-lobby-decision-likely-open-legal-floodgate-256990) If it opened a “legal floodgate” I’d be happy as a clam. The federal government is in a rush to ram its dirty fingers into every aspect of our lives while tossing our freedoms out the window. Almost anything which helps the American people fight back against that tendency is good thing in my book. That said, the article you link to doesn’t really justify its title. In fact there’s absolutely no evidence to justify **Evil Captor’s** prediction that the Hobby Lobby decision will lead to any further lawsuits beyond the 70-odd ones already filed. Hence it’s not surprising that **Evil Captor** , as usual, provided no citation to back up his claims. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [July 3, 2014, 11:02pm UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/169 "2014-07-03T23:02:51Z")
> [@Chihuahua](#): > > For a large segment of the population, this is not an option. > > The grotesque tragedy of the Supreme Court’s decision is that the people who need subsidized health care the most are almost by definition the same people who don’t have the luxury of choosing their employer and are also the least capable of absorbing the expenses of an unplanned pregnancy. Are you under the impression that full-time salaried workers at closely-held companies are especially indigent? The truly poor – those for whom the ~$25 a month for generic birth control is a real hardship – are 1) mostly hourly employees, and thus don’t have insurance to begin with, and 2) are covered by Medicaid. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [July 3, 2014, 11:35pm UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/170 "2014-07-03T23:35:49Z")
> [@Bricker](#): > > Do you have a prediction about what kind of trend Hobby Lobby will see in terms of sales? . . . I expect a brief spike in sales, because of the immense publicity. But people will become bored in time, and pretty soon the levels will revert to normalcy. As opposed to, say, handguns, household hobbies are not meaningfully correlated with strong political opinions. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [July 4, 2014, 2:48am UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/171 "2014-07-04T02:48:59Z")
> [@Stratocaster](#): > > I agree with this last sentiment. But I don’t see what limit they’d apply that doesn’t make this logic equally applicable to Jehovah’s Witness’ companies that don’t want to pay for blood transfusions. Congress opened that door with the plain text, they can close it. But I don’t see how SCOTUS can force this to be the narrow decision they describe it as. As I said, I think it was just a bit of political cowardice.Yes, even if one finds a different argument more persuasive (I don’t), I don’t see how this decision could be described as “out of left field” or crazy or whatever. The legislation says what it says, not what some of us wished it did. The parade of horribles seems to ignore a key part of the HL ruling… the specific rationale as to why the employer mandate to provide contraceptives is not the least restrictive means available. There is not a pre-existing alternative system of providing blood transfusions as there is for contraception. A court could reasonably say that even though a requirement to pay for insurance including blood transfusions is an intrusion on a Jehovah’s Witness’ owned for-profit corporations sincerely held religious exercise, that the mandate stands as there is no less restrictive alternative. The fact that the PPACA already created an exemption to the contraceptive mandate for certain corporations made it easy for SCOTUS to point to that as a less intrusive means. Now, a future case might argue that the various government funded immunization programs at public health clinics might be a reasonable less-intrusive means of providing such services if an employer objects to such a mandate on religious grounds. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [July 4, 2014, 3:45am UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/172 "2014-07-04T03:45:36Z")
> [@standingwave](#): > > Except that Hobby Lobby believes that these four forms of contraception do, in fact, cause abortions. I personally don’t agree but it’s it’s sincerely held religious belief so what are you going to do? It isn’t a religious belief, it is a fact, at least sometimes. Anything that prevents a fertilized egg/zygote from implanting, as these contraceptives sometimes do, is causing an abortion. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 4, 2014, 4:15am UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/173 "2014-07-04T04:15:53Z")
> [@Stoid](#): > > It isn’t a religious belief, it is a fact, at least sometimes. Anything that prevents a fertilized egg/zygote from implanting, as these contraceptives sometimes do, is causing an abortion. Well, yes and no. The OB/Gyn definition of an abortion is (generally) any treatment which causes an implanted embryo or fetus to be terminated. The pro-life Christian definition is any treatment that causes a fertilized embryo to fail to implant, OR any treatment which causes an implanted embryo or fetus to be terminated. This is an issue of semantics – whatever you choose to call preventing a fertilized egg from implanting is what they object to. The word “abortion” might confuse things when it’s used in slightly different ways. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [July 4, 2014, 4:56am UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/174 "2014-07-04T04:56:07Z")
> [@Bricker](#): > > Well, yes and no. > > The OB/Gyn definition of an abortion is (generally) any treatment which causes an implanted embryo or fetus to be terminated. > > The pro-life Christian definition is any treatment that causes a fertilized embryo to fail to implant, OR any treatment which causes an implanted embryo or fetus to be terminated. > > This is an issue of semantics – whatever you choose to call preventing a fertilized egg from implanting is what they object to. The word “abortion” might confuse things when it’s used in slightly different ways. Yup. The issue here is the HL (or its owners) had a religious objection to causing a a fertilised embryo to fail to implant, and objected to being compelled to provide for this. Whether “this” falls in or outside whatever definition of “abortion” you care to adopt doesn’t affect the position much, one way or the other. ---
**Author:** ![standingwave](https://avatars.discourse-cdn.com/v4/letter/s/9de0a6/32.png) [@standingwave](https://boards.straightdope.com/u/standingwave)\ **Post date:** [July 4, 2014, 7:01am UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/175 "2014-07-04T07:01:59Z")
> [@UDS](#): > > Yup. The issue here is the HL (or its owners) had a religious objection to causing a a fertilised embryo to fail to implant, and objected to being compelled to provide for this. Whether “this” falls in or outside whatever definition of “abortion” you care to adopt doesn’t affect the position much, one way or the other. I guess it doesn’t really matter now given that the court has since [expanded its decision](http://www.latimes.com/business/hiltzik/la-fi-mh-expanded-hobby-lobby-20140702-column.html#page=1) to include any and all forms of birth control. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [July 4, 2014, 7:09am UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/176 "2014-07-04T07:09:03Z")
> [@standingwave](#): > > I guess it doesn’t really matter now given that the court has since [expanded its decision](http://www.latimes.com/business/hiltzik/la-fi-mh-expanded-hobby-lobby-20140702-column.html#page=1) to include any and all forms of birth control. Well, yes. There’s nothing in the Bill of Rights or the RFRA to say that free exercise applies to religious beliefs only about abortion, or only about birth control, or only about something else. The question for the SC is not “do we classify this as abortion, or birth control, or something else?”. It’s “is there a compelling public interest here which justifies Congress in requiring people to act in a way contrary to their religious convictions?” The only reason HL are involved in this loop at all is to gratify the vested interests of health insurance companies whose financial well-being would be threatened by a more rational and effective system of healthcare provision. I don’t find that very compelling, myself. And neither, it seems, did the Supreme Court. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [July 4, 2014, 9:24am UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/177 "2014-07-04T09:24:54Z")
> [@Iggy](#): > > The parade of horribles seems to ignore a key part of the HL ruling… the specific rationale as to why the employer mandate to provide contraceptives is not the least restrictive means available. > > There is not a pre-existing alternative system of providing blood transfusions as there is for contraception. A court could reasonably say that even though a requirement to pay for insurance including blood transfusions is an intrusion on a Jehovah’s Witness’ owned for-profit corporations sincerely held religious exercise, that the mandate stands as there is no less restrictive alternative. > > The fact that the PPACA already created an exemption to the contraceptive mandate for certain corporations made it easy for SCOTUS to point to that as a less intrusive means. > > Now, a future case might argue that the various government funded immunization programs at public health clinics might be a reasonable less-intrusive means of providing such services if an employer objects to such a mandate on religious grounds. A pre-existing alternative certainly makes it less hypothetical, but it’s not required, right? So long as there is a practical, less-restrictive alternative we can contemplate–something reasonable and possible–then ISTM the parade continues. You’re right, though, that the sky is not the limit. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [July 4, 2014, 10:19am UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/178 "2014-07-04T10:19:52Z")
> [@Stratocaster](#): > > A pre-existing alternative certainly makes it less hypothetical, but it’s not required, right? So long as there is a practical, less-restrictive alternative we can contemplate–something reasonable and possible–then ISTM the parade continues. > > You’re right, though, that the sky is not the limit. It has certainly been said that in the United States you can sue for any reason at all. Whether you can win is a different matter entirely. But no, the sky is not completely falling. For the RFRA to justify any sort of exemption it takes more that just someone’s religious claim. As \*\*Bricker \*\*has repeatedly noted in various threads, that claim must show (my paraphrasing here): - the claimant’s religious belief is sincerely held; - the government is placing a substantial burden on the religious exercise; and if those criteria are met then the government has a burden to: - show it is acting in furtherance of a compelling state interest - it is using the least restrictive, or least burdensome, manner to achieve those aims. The courts have indeed turned down such claims for exemptions when they fail the test. I, for one, believe that they will continue to do so. Certainly where the federal government already operates some sort of alternate program it will be difficult for them to demonstrate that forcing a person or corporation to do substantially the same thing in violation of a sincerely held belief is the least restrictive way of meeting the compelling state interest. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [July 4, 2014, 1:59pm UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/179 "2014-07-04T13:59:05Z")
> [@Iggy](#): > > The courts have indeed turned down such claims for exemptions when they fail the test. I, for one, believe that they will continue to do so. I agree. My main point was that I believe Alito’s assurances, that the decision really only applies to contraceptives, are not logical. Of course all such claims will have to overcome the same challenges. But I don’t see anything that would limit such claims to religious concerns over contraceptives. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [July 4, 2014, 2:57pm UTC](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060/180 "2014-07-04T14:57:07Z")
I will believe this is not a bunch of Catholic men using the law to enable other Catholics to impose their religious values on the rest of us the day when a Muslim claim is upheld under RFRA. [Previous page](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060.md?page=8) [Next page](https://boards.straightdope.com/t/remedy-for-hobby-lobby-decision/692060.md?page=10)