Monday, March 24, 2014

Fractious Fractional Argument

Tomorrow the US Supreme Court hears arguments on the Hobby Lobby and Conestoga Woods cases, concerning whether corporations are exempt from having religious rights.
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I’ve written about this before. But in the past week I heard an argument I hadn’t heard before, which I’m calling the fractional argument. There are several places to go for more, some of which I’ll summarize here:
·        Underlying Hobby Lobby,” Philip Hamburger, National Review, 3-11-2014
·        Hugh Hewitt “The Smart Guys” interview, 3-19-2014 (available only in membership-required archive) between Erwin Chemerinsky, Dean of UC Irvine Law School, and John Eastman, Dean Emeritus of Fowler Law School of Chapman University
· for general and detailed information about the case, including briefs
My son Political Sphere brought the Philip Hamburger piece to my attention, which was the first I’d heard the fractional argument. Hamburger talks specialization affecting an organization as only fractionally allowed rights:  
Can government treat specialized organizations as having diminished constitutional rights outside their fields of specialization? Can it conclude, for example, that because Hobby Lobby is a business corporation, it has diminished interests in religion, and therefore in religious liberty? From this perspective, organizations devoted to some specialized paths have reduced interests in constitutional rights that the government associates with other paths. Churches, for example, have full religious rights, but not full speech rights, and businesses have complete speech rights, but not complete religious rights.
The effect of this kind of distinction is to curtail the constitutional rights (and associated statutory rights) of Americans when they associate with one another in organizations.
Corporations are made up of people, so that the organization combines the shared interests of multiple persons (at least three persons, in the states where I’ve looked at it personally). Do people lose rights, or get only a fraction of whole-person rights, when functioning within an organization?
In the Citizens United vs. FEC case, the Supreme Court ruled that a corporation does qualify for free speech rights as asserted in the First Amendment. In other words, a corporation qualifies for the same speech rights as an individual.
In the Hobby Lobby case, the same First Amendment is at issue. Does a corporation have religious freedom rights? Can a corporation be said to have religious beliefs?
Since the administration doesn’t like the Citizens United ruling, that corporations do have speech rights, but must abide by the ruling, it is attempting to limit other rights. The government is trying to say that a corporation exists only for a single purpose: maybe that is a religious purpose, like a church, so then it can have free religious rights but not free speech rights. Or maybe a corporation is for profit and ipso facto has no other mission than making money, so it can have speech rights (because SCOTUS said so), but not religious rights. In other words, corporations are fractional, depending on purpose as seen by the government, and therefore will be granted rights as government chooses to grant them.
We might not straighten out the government with this case alone, but government does not grant rights; God does. That’s in our founding document, the Declaration of Independence. The Constitution spells out some of them, just in case some tyrant tries to ignore our rights. But, back to the issue at hand.
Can a corporation have only one part of the First Amendment apply to it and not another, unless the Court’s simply making up rules as they go along?
In the Smart Guys interview, the second place I heard this fractional argument, the liberal side is represented by Erwin Chemerinsky, Dean of UC Irvine Law School. He asserts that a corporation can’t have religious beliefs:
A corporation is a fictional entity; it can’t have religious beliefs. There is an enormous difference between a corporation like Hobby Lobby and Conestoga Woods Specialty; those are corporations that exist to further the corporate mission of making profit. They’re not religious entities. And I don’t believe a fictional entity like a corporation can have religious beliefs.
Is a corporation a fictional entity? No, it is quite real. There’s a lot of paperwork and physical property showing its existence. It gets taxed and fined real money. It is not a fictional entity; it is a fictional “person.” It is a combination of individuals organized together as if one person.
In addition, corporations are frequently pressed to have good citizenship, and follow whatever moral values are being pressed upon them. As John Eastman said in the Smart Guys interview,
We have entire movements in this country calling on corporations to be good citizens, to have corporate civic values, and to support movements in South Africa and elsewhere around the world. The corporate responsibility, we demand that of them, even though it’s got nothing to do with their corporate profits and their bottom line. So why can’t included in that be the exercise of the fundamental religious beliefs of the closely held owners of those corporations?
One of Chemerinsky’s arguments is that people form corporations to avoid liability, in case the corporation gets into financial difficulty. Yes and no. The corporation is seen as financially a singular “person,” or entity, so financial default doesn’t take away all the personal belongings of one or several individuals in the organization. But if the corporation breaks the law, commits fraud, for example, the “fictional person” doesn’t do jail time; the actual human being(s) inside the company found responsible gets the indictment. So it’s not formed to protect oneself from the law; it’s simply one way of combining resources for a purpose.
Chemerinsky likes to refer to “secular corporations,” as opposed to “religious corporations,” such as churches and non-profits with a mainly religious purpose. This is a new phrase, however, not a legal distinction. A corporation forms as a non-profit, with a religious, educational, or even a political purpose. And forms as a for-profit corporation if it’s a business—but that doesn’t mean that is the only purpose; it just means that at least some of the corporation’s activities are expected to make a profit. You wouldn’t disqualify it as a for-profit corporation if it also donates time and resources to charities. Just as the rest of us humans, we might work a day job for profit, but that isn’t all we do, and that doesn’t determine whether or not we are religious.
There’s a point over which I most disagree with Chemerinsky, Looking at religious freedom issues, he refers to a case called First National Bank of Boston vs. Belotti, as well as the Citizens United case, concerning speech rights:
…corporations are given free speech rights because the more expression that’s out there, the better informed people will be. In other words, corporations are given free speech rights, because it instrumentally serves the goal of the First Amendment of a better informed electorate. That has no analog when we’re dealing with religion.
He thinks speech is valuable but religion is not, and that should be the deciding factor. He fails to notice that honesty, property rights, fairness, valuing life, and community commitment all come from religious beliefs. Can you picture a society full of corporations without any of those moral beliefs?
He is trying to come up with a rationale for the government to willingly grant speech rights, as required by the Court, without granting anything else. First, let me say there ought to be no distinction; if a person (or corporation made up of persons) has the inalienable right of free speech, the person (or corporation made up of persons) also has religious freedom. Not because the Constitution says so—but the Constitution says so to make it extra clear that government has no business doing anything to take those rights away. If there are other inalienable rights God has granted to people, the people do not have those rights alienated (taken away) whenever they associate with other people in an organization.
Hamburger says,
Why is this so troubling? Standing alone, individuals in an egalitarian society are weak in relation to government. But when they associate with one another, as Tocqueville observed, they acquire a shared strength, including the resources, capacity, and courage to develop public opinion independent of government and thereby to defend their freedom.
It would be very dangerous for the Supreme Court to accede to the government’s assumption that specialized organizations are often only specialized persons with only specialized constitutional rights — that is, only partial persons with only partial rights. If government can act on this vision of specialization, it can divide and undermine civil society.
The two cases at issue tomorrow are “closely held” corporations; they are fully owned by the founding families, and these families consist of people with religious beliefs—beliefs that carry over into the way they do business. Hobby Lobby, for example, closes on Sundays. They’ve been clear about their religious beliefs all along. Conestoga Woods is owned by a Mennonite family. So both have always been clear about the religious beliefs of the people heading the corporation and the influence that has on their companies. I’m concerned that there will be an additional parsing, eventually granting Obamacare religious exemption waivers to these particular companies because of their particular family structure, but refusing to grant such exemptions to larger, publicly held corporations, regardless of the beliefs of their boards of directors or other leadership.
I hope the Court hears truth with clarity tomorrow. I pray for them to be both wise and good.

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