Tomorrow the US Supreme Court hears arguments on the Hobby
Lobby and Conestoga Woods cases, concerning whether corporations are exempt
from having religious rights.
Image from HobbyLobbyCase.com |
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
· www.HobbyLobbyCase.com
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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