Talk:Burwell v. Hobby Lobby Stores, Inc.

Needs to be flagged for neutrality

"The ruling could have widespread impact on the issue of whether companies can be religiously exempt from any federal law that protects the interests of other individuals."

Whether or not the HHS' contraceptive mandate "protects the interests of other individuals" is a matter of opinion that does not belong in this neutral article. — Preceding unsigned comment added by 99.164.161.151 (talk) 12:51, 2 July 2014 (UTC)

I agree that it needs to be flagged, however, I'm not sure that I understand your problem with the sentence (other than perhaps being poorly written). It's saying that companies may be exempt from laws that are supposed to protect individuals, in this case, contraceptives, which are supposed to be protected by law (i.e., the same law that Hobby Lobby is trying to be exempt from). There are too few opinions of those that oppose this decision as well. RobertLM78 (talk) — Preceding undated comment added 20:50, 2 July 2014 (UTC)

Correction to title

Shouldn't the name of this article be Burwell v. Hobby Lobby Stores, Inc. (with a comma after the word "Stores" and a period after the abbreviation "Inc")? I tried to make the change, but I received a warning that the title was invalid. Can anyone address this issue? Thanks. Joseph A. Spadaro (talk) 04:06, 1 July 2014 (UTC)

I think Burwell v. Hobby Lobby is better because it's consistent with the featured article Sega v. Accolade, which would otherwise be called Sega Enterprises Ltd. v. Accolade, Inc. Also, the full name is already in the infobox, so the article name and first sentence might as well be wp:concise, e.g. Rhode Island instead of State of Rhode Island and Providence Plantations. KinkyLipids (talk) 04:58, 1 July 2014 (UTC)

Thanks. I don't think that omission of two characters (the comma and the period) is due to a concern for being concise. I expect it was a typo or careless error. The abbreviation "Inc" is always followed by a period. Similarly, the abbreviation should be preceded by a comma. Joseph A. Spadaro (talk) 05:45, 1 July 2014 (UTC)

I'm inclined to agree (and I've moved the page back for now). The lack of comma and period was simply wrong, in my opinion. The common name standards seem to suggest that Burwell v. Hobby Lobby is best (compare with the Hobby Lobby article), but perhaps Burwell v. Hobby Lobby Stores or similar might be better. --MZMcBride (talk) 14:59, 1 July 2014 (UTC)

I think we should use the business's full name with "Inc.", as we do with so many other SCOTUS cases where the respondent is a business: Moses H. Cone Memorial Hospital v. Mercury Construction Corp., for instance (as opposed to Wal-Mart v. Dukes or AT&T Mobility v. Concepcion, to name two other similarly-named cases of recent years). Daniel Case (talk) 02:28, 3 July 2014 (UTC)

Definition of closely held

I added a link to closely held corporation in the article, but I think it needs to explicitly address the definition of the term and its implications. See for example [1] and its statistics that 90% of American businesses fall into that definition, and [2] which claims there are several possible definitions and it wasn't clear which one the decision referred to. --Waldir ^talk 21:53, 2 July 2014 (UTC)

I read the WSJ article earlier but now it's behind a paywall. The NPR source didn't give any other specific definition. I think we won't get a definitive answer until more lawsuits inevitably bring the issue back to the Supremes. Any new section in the article about the definition of closely held would probably just contain speculative definitions or commentary about the uncertainty created. KinkyLipids (talk) 22:44, 2 July 2014 (UTC)

The decision document from SCOTUS states that the closely held companies in the decision are "each owned and controlled by members of a single family." Bahooka (talk) 22:52, 2 July 2014 (UTC)

"The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs." That's only a description of the plaintiffs, which is made in contrast to publicly traded companies. The structure of the sentence sets single-family companies as a subset within the broader category of closely-held companies. Lower courts would be free to apply the decision's logic to more than just single-family companies. KinkyLipids (talk) 23:28, 2 July 2014 (UTC)

The IRS states that "A domestic corporation is closely held if a specified individual owns at least 80 percent of the corporation’s stock (by vote or value) on the last day of the corporation’s taxable year." Bahooka (talk) 23:37, 2 July 2014 (UTC)

I was able to access the WSJ article through Google, and it says "The Internal Revenue Service defines a closely held company as a corporation that has more than 50% of the value of its outstanding stock directly or indirectly owned by five or fewer individuals at any time during the last half of the tax year. It also cannot be a personal-service corporation." Using Google's search tools, your quote doesn't appear past Feb 21, 2012, and it's so strict that it probably wouldn't even apply to the plaintiffs. Anyways, the court didn't specify that it was using either one of the IRS's definitions, and it would be strange for a ruling against a federal agency to be based on how another federal agency defines a term. KinkyLipids (talk) 23:55, 2 July 2014 (UTC)

Two issues not addressed (and maybe it's better that way, but ...)

I personally have two questions about this case that I don't think are currently answered by the article. If an editor who's more of an expert on the subject matter agrees that these questions ought to be covered, I'd be glad to see the information included, and then I'd be a little less ignorant. The first is whether Hobby Lobby made an explicit First Amendment claim or not. The article is clear that the decision was based on a statute rather than the First Amendment; I'm only asking whether such an argument was offered or not. My second question, is: Does the "Religious Freedom Restoration Act" grant an unlimited freedom to interpret matters of fact as part of one's religion? I'm asking this here rather than in the article about that law, because my impression from news reports is that this case hinged on a claim that certain forms of birth control, generally accepted as such by the medical profession, actually cause abortions. Do such "non-faithy" beliefs, and practices based on them that affect other people, have the same legal protection as, say, the right of a person to pray peaceably X number of times per day if their religion commands it? Thanks! DSatz (talk) 10:41, 3 July 2014 (UTC)

The answer to your first question is yes, and I have added that information to the lower court section of the article. As for your second question, that will probably be the subject of future court cases, but the Supreme Court's ruling says in the first paragraph 'As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”'--agr (talk) 15:06, 3 July 2014 (UTC)

I know there are at least two sources saying the Greens believe that the 4 contraceptives cause abortion, but I don't think that matters because their argument hinged more on their belief that human life begins at conception (a translation of an ancient Hebrew concept that they equate to the modern definition of fertilization). The four contraceptives can prevent a fertilized embryo from implanting in the uterus, causing it to die in the next menstrual cycle, which the Greens believe is the death of a human being. Now it's a matter of fact that the contraceptives don't cause abortion, but it's a matter of faith that the Greens believe an embryo is a human being. So whether or not it's factually abortion, it's still factually the destruction of an embryo. About the question of whether beliefs that affect other people have legal protection—that's a question that the court just answered by protecting the beliefs of the owners (although Scalia also made a token acknowledgment of the rights of employees). So yes, your beliefs that affect other people are now legally protected, as long as you are an owner and not a worker. KinkyLipids (talk) 18:21, 3 July 2014 (UTC)

We'll see how this plays out in the coming years, but the court seems unanimous that providing contraceptive care is a compelling governmental interest, the question for the majority was what is the least restrictive way to achieve that. Kennedy's concurrence is particularly important since he was apparently the swing vote and he seems to be saying that he will be looking for ways to keep the lid on in future cases.--agr (talk) 19:26, 3 July 2014 (UTC)

The court found it "unnecessary to adjudicate" on whether it's compelling. Maybe the other four kept quiet to get Kennedy on board? KinkyLipids (talk) 20:42, 3 July 2014 (UTC)

Many thanks for these replies and the article updates, and for any others that may still follow. I'm still taking this decision in. It's obviously a huge one, but it's bounded by technicalities that (as a non-lawyer) I don't have a good "feel" for yet, and I suspect I'm not alone in that. DSatz (talk) 16:11, 4 July 2014 (UTC)

The second question is also an unequivocal yes. Both the majority opinion and the dissent agree that "(“Repeatedly and in many different contexts, we have warnedthat courts must not presume to determinethe plausibility of a religious claim" and "This argument dodges the question that RFRA presents(whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct businessin accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable)." - however, the "test" imposed by the law and the court is multi-prong. Only one of those prongs is a sincere religious belief. As both the majority and dissent also said, the calculus for other religious beliefs may come out differently, because the "least restrictive" method in other instances may legitimately involve disruption of the religious belief. @KiunkyLipids - The ruling protects owners, only because owners were being forced to take action against their belief. If employees were being forced to take action by law, they would certainly have equal protection. The case that initiated the RFRA was about two native americans fired from their job after smoking peyote in a religious ceremony. Gaijin42 (talk) 14:39, 7 July 2014 (UTC)

If Alito was being sincere when he said that a corporation is made up of both shareholders and employees, then why aren't the corporation's beliefs made up of the beliefs of both shareholders and employees? We are coming closer to Louis XIV's vision of the world when he said, "The state? I am the state," only this time it's the owner saying "The company? I am the company." The employees weren't given equal protection here because their representation as part of the corporation wasn't factored into the analysis of what Hobby Lobby's beliefs are. KinkyLipids (talk) 16:02, 7 July 2014 (UTC)

Humor intended : How Marxist of you :). If an individual starts a company, and wholly owns that company, yes, they are the company. In employee owned companies, or publicly held companies, obviously the "will" of the company is more diluted/spread out. Gaijin42 (talk) 16:10, 7 July 2014 (UTC)

But once the individual incorporates the company, then it's a new legal entity separate from the shareholder. If the owner is the corporation, what's to stop the owner from being fined if the corporation violates a safety regulation, for example? And if closely held is eventually defined by the court as a precise number of shareholders, it would seem unfair to the shareholders who were put on one side of that definition and prefer to be on the other side. To me, this ruling is bad for employees, shareholders, and those religious organizations who do not want corporations in their company. PS, I hate communism like a fascist. :) KinkyLipids (talk) 16:28, 7 July 2014 (UTC)

Creation of entirely new programs

User:ArnoldReinhold, the concurring opinion is not binding. It's only Kennedy's opinion. It's not the court's opinion, nor does it restrict the court's opinion. The majority opinion says that "[t]he most straightforward way of of doing this [(using the least restrictive means to achieve the compelling interest)] would be for the Government to assume the cost..." This is the main reasoning for why the mandate is not the least restrictive means. The court then responds to the government's argument:

HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used to require creation of entirely new programs.”...But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems.

In other words, the court supports the argument that creation of entirely new programs can be required. The court then points to the existing accommodation for nonprofits, but only as an extra reason, specific to this case, that the mandate is not the least restrictive means. KinkyLipids (talk) 21:19, 6 July 2014 (UTC)

Right, but the court goes on to say "In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs." and that is the basis for their ruling.

Kennedy explains this on p. 4 of his concurrence: "In discussing this alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program. Ante, at 41–43. The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints. In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place. Ante, at 43–44." First of all Kennedy is, by far, a better source for how the court did or did not rule than me or you. Secondly, he is the swing vote in this case, so as a practical matter how he choses to vote in the future will determine the real impact of this decision.--agr (talk) 22:17, 6 July 2014 (UTC)

"Need not rely" means that it's not the only reasoning. They're not sweeping it aside. And yes, Kennedy is by far and away a better source for explaining how the court ruled than I am. So is Ginsburg. It would be nice to believe that they're in agreement on how narrow or sweeping the ruling is. They're not. And if Kennedy's concurrence is a correct explanation for how the court ruled, then why isn't it in the majority opinion in the first place? Because the other four in the majority don't agree with it. Kennedy is alone. In other words, Ginsburg's explanation of how the court ruled, joined by three other justices, is even more authoritative than Kennedy's explanation. You do make a good point that his concurrence tells us how he will rule on any future case where there is no existing alternative means. He can then side with Ginsburg's gang to narrow Hobby Lobby. Until then, the most we can say about the Hobby Lobby ruling is that it has not yet been narrowed, and even that might be saying too much. KinkyLipids (talk) 22:49, 6 July 2014 (UTC)

The language I removed from the lede said "allowing closely held for-profit corporations that religiously object to a law to be exempt from it if the government can assume the cost through the creation of an entirely new program, which would be the least restrictive means of furthering the law's interest." None of the opinions, nor the syllabus say that. In particular Ginsberg does not say that. Here is what she says: (Dissent p.28) “Then let the government pay (rather than the employees who do not share their employer’s faith), the Court suggests.” (Suggests, not requires or holds.) Then on the next page “Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations." (my emphasis).

It's true that the majority did not rule out the possibility of requiring the government to pay, but the case was not decided on that argument, as Kennedy makes abundantly clear. And it's one thing for a member of the majority to express their differing views in a concurring opinion, quite another for that justice to explicitly state what the majority did or didn't hold, e.g. "Court does not address..." and "The Court properly does not resolve..." if the other members of the majority disagree.

Finally I would note that the syllabus says (p.4) "This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs." That would make no sense if the text I replace were the court's ruling, since the government clearly could set up a program to pay for vaccinations and blood transfusions. As you astutely pointed out earlier, the test is "viable least restrictive means of furthering the law's interest." Some cost to the government cannot be ruled out but the boundaries of "viable" remain to be decided in future cases. Our lede should not go beyond what the court ruled on.--agr (talk) 02:43, 7 July 2014 (UTC)

First of all, thank you for contributing to this article that I created. I'm surprised that no one had created it yet and that there haven't been more editors. A plane went missing four months ago and it still gets more interest than this got on decision day. Hardly anyone has visited this article. Maybe this subject just isn't very important to everyone else.

Your position is strong and well-argued, but since I'm stubborn, I still disagree, and I'm too impatient to fully and carefully read anything other than the binding majority opinion, which is already long enough. The dissent, the concurrence, and the syllabus, in that order, are not important to me (and if it weren't for you those sections would still be mostly blank). From what I bothered to read in the dissent, it sounds like Ginsburg did a lot of hand-wringing about whether the court allowed for a wide application of the ruling. This case reminds me a lot of Windsor. In that ruling, there was also a majority saying that it's limiting its ruling to the particulars of the case (yet suggesting otherwise). There was also a scathing dissent criticizing the majority for suggesting too much and warning of a wide application of the court's reasoning. There was also a lone justice trying (and failing) to assure everyone that the ruling is responsibly restrained. Based on that, I think there will also be lower court judges quoting the dissent as justification for applying the court's reasoning broadly.

It's important that the Reporter added "necessarily" into that sentence in the syllabus. Those mandates don't necessarily fall because of this ruling, but that doesn't mean they can't. At first I thought that viable was Alito's way of restricting the ruling away from cases where a new government program isn't politically practical. But my hopefulness made me read too much into that one word. I checked the reference he provided in that sentence, and it looks like he's just using viable as a synonym for least restrictive. Now it seems to me that Alito suggests any creation of a new government program, no matter how politically unlikely, is theoretically "viable", least restrictive, and enough reason to strike down a law.

While I disagree with your change, (and disagree with my previous hopefulness), I don't want to push away the few editors here by forcing my edits. But I do think the word viable in the lead is meaningless, misleading without context, and should be removed. KinkyLipids (talk) 05:38, 7 July 2014 (UTC)

The lede is incorrect currently. The mandate was not the least restrictive method- but not because the government can assume the cost (although that would also be true) - the majority opinion is quite clear - its not the least restrictive method, because there is already the certification process used by non-profits which causes the insurer to cover the contraceptives directly, rather than the employer. (page 49)

In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections.

ArnoldReinhold made the same argument, Gaijin42. I responded above. KinkyLipids (talk) 16:06, 7 July 2014 (UTC)

In any case, the core holding is that it wasn't the least restrictive means - what the alternative means available are in this case (or would be in a different case) is legally and precedentially unimportant. (Although it certainly may matter to the employees/govt in this particular suit). For future cases the govt programs may or may not be in play, and likewise for HHS alternatives - but the core logic will be - and thats where the encyclopedia should focus in the lede. Later in the body, we should probably list both alternatives as mentioned by the opinion tho. Gaijin42 (talk) 16:20, 7 July 2014 (UTC)

Since two minds are better than one, I'll consent. What do you think about removing the word viable from the lead? I gave my reasoning on that above. KinkyLipids (talk) 16:43, 7 July 2014 (UTC)

Yes, I think viable should be removed per your reasoning, as well as my understanding of the situation - neither the law nor the ruling require anything about how easy or likely it is for the government to actually implement the less restrictive alternative, just that they could. (Although in this case, as the alternative is already available for non-profits, it seems very likely the alternative will be implemented for these companies as well) Gaijin42 (talk) 17:59, 7 July 2014 (UTC)

I agree on removing viable. I also think the lede should stick to just what the court held, as Gaijin42 says. In particular we now say "However, the court noted that an established alternative complies with the RFRA for the purpose of the plaintiffs' claim but not necessarily for all religious claims." I don't believe the court said that. It said that the alternative HHS offered to non-profits is clearly less restrictive and that therefore HHS had failed to demonstrate it was using the least restrictive means. There was no need to decide whether that alternative meets RFRA muster. The Wheaton College (and Little Sisters of the Poor) temporary injunctions suggest some doubt at least as to the requirement to file Form 700 with ones insurance company. --agr (talk) 21:28, 7 July 2014 (UTC)

I have no problem with your edit. It's more general which is better for the lead, but I think either version is true. The court said:

"We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well."

It's true the court said there's no need to decide whether the alternative meets RFRA muster "for purposes of all religious claims". But it said pretty clearly that it doesn't "impinge on the plaintiffs' religious belief", i.e. it doesn't substantially burden their religious exercise and complies with RFRA for the purpose of this case. KinkyLipids (talk) 00:14, 8 July 2014 (UTC)

Matter of transfusions et al

The article makes one mention of the matter of life-saving medical treatments like transfusions regarding this ruling and it is only in the negative sense of companies supposedly now being able to deny such treatments. However, the ruling specifically addressed this matter at the very bottom of page 5 and into the top of page 6, stating that it was concerned only with the contraception mandate. I know the far-left sources cited are completely ignoring this fact, but it needs to be clearly stated in the article. 71.51.129.193 (talk) 03:37, 8 July 2014 (UTC)

"Implications" section potentially not neutral

Right from the get-go, the section smacks of bias. It starts off claiming: "The case's potential consequences could extend far beyond contraception." This seems like an attempt to predict the future, which is verboten on Wikipedia the last time I checked. Neutrality would dictate that the claim is the view of some with specific examples of it. 71.51.129.193 (talk) 03:41, 8 July 2014 (UTC)