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.

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.

Corporate Religious Freedom

In light of our last post, on heroically standing up to tyranny, I would like to recognize the heroes at Hobby Lobby who are standing up against the HHS mandate infringing on their religious beliefs.

The Hobby Lobby case is one of two 2014 Supreme Court cases relating to the mandate for providing insurance to employees that includes contraception—including abortifacients. (The other is Conestoga Wood Specialties, Mennonite cabinetmakers in Pennsylvania.) The misnamed Affordable Care Act details what must be included in various health insurance policies, and birth control is among the requirements—for everyone, of every gender, age, and circumstance. Under pressure, exceptions were carved out for religious institutions, dithering over a fair amount of minutia deciding things like whether a parochial school run by a church could be exempted, or if only employees of the actual church could be exempted.

A Hobby Lobby store front
photo from here

The government’s knee-jerk response is based on its perceived interests first and foremost, regardless of the effect on individuals and their beliefs. The first attempt at appeasement to church employment was, “You don’t have to pay for contraceptives, if that is against your beliefs; you simply have to pay for policies that will offer it.” Um. That’s still paying for it.

We think the decision is more or less settled for churches, which have a declared religious purpose. But religious institutions aren’t the only places you find religious people. And where you find religious people, you may encounter those opposed to paying for someone else’s pregnancy avoidance. And you’re especially going to find opposition if the pregnancy “avoidance” products include after-fertilization-of-the-egg types, which can be considered abortion.

Such people are among the founders and leadership of Hobby Lobby, the large, national craft store chain out of Oklahoma. They are self-declared religious people. Their stores are always closed on Sundays, in honor of their belief in keeping the Sabbath day holy. (The Hobby Lobby story is recounted in founder David Green’s book More than a Hobby.)

So the question arises: Do persons lose their right to religious freedom when they enter into commerce? Since pretty much everyone does enter into commerce, we probably need to narrow that down to those who do business as an entity, rather than as they themselves individually—which is still pretty wide reaching: DBAs, limited partnerships, nonprofit organizations, companies, firms, privately held corporations, and publicly traded (stock selling) corporations. Plus probably other business structures I’m not thinking of.

The opposition chooses to word this question a little differently: How can a corporation have religious beliefs? It’s not a person. They’re just trying to dodge their responsibility to pay for full health care coverage. (And LA Times editorial titled it “The Hobby Lobby Dodge.”)

So I’m looking at my personal experience, which is very small scale, to see if it translates. Several decades ago I had a writing and editing business that, for various reasons, worked better if I incorporated, had clients pay the corporation, then had the corporation pay me as a contractor. The corporation required three principals: that was me, my husband, and my dad. We met the requirements of the law to be a corporation, but in every respect that was important, I was the corporation: I was the one doing the work, making the decisions, and earning the money that passed through the corporation to me as a contractor. Was the corporation something other than me? On paper, but not in reality. If the corporation had been required to write things I wasn’t willing to write, like porno scripts for example, the corporation would have turned down such work, because I was unwilling to do it.

Suppose there were a government requirement to take on work I found morally objectionable. There isn’t; it seems ridiculous to contemplate—but then having government tell any business what it must buy for its employees seemed ludicrous just a few years ago. So, let’s suppose there were such a requirement of my little corporation. Would I have to do it? My religious beliefs and personal moral code prohibit me from doing so. Under government coercion, I still couldn’t do it. Having government say, “You don’t have to do the work that goes against your beliefs; it’s only required of the corporation, which doesn’t have religious views,” doesn’t help me.

Hiring some other contract writer to do the work wouldn’t even solve the issue for me; I couldn’t have such work produced by the corporation that I control.

When government coerces a commercial entity, the people with controlling interest in that commercial entity have two options: comply, or shut down. Hobby Lobby has already said that, if there is no other recourse, they will shut down rather than comply.

First, of course, comes the question of whether the government can coerce. It (which is supposed to be “We the People,” but sure seems to have become some other monstrous entity) can and does coerce—unless prevented. Government is power. Our Constitution places limits on the federal government, delineating the specifically allowed powers—but those limits have been stretched beyond the point of elasticity. We are left to rely on a hope that unelected judges will say, “No, you can’t do that.”

The Supreme Court is the last resort for Hobby Lobby. They already won in federal appeals court, but the Obama administration isn’t satisfied with the result, so Hobby Lobby must fight on. I appreciate their heroic willingness to do so. Personally, I see Hobby Lobby as my favorite “toy” store; I adore using the 40% off coupon I can make appear on my phone every time I shop there. Having them shut down would be tragic for me, but more so for the thousands of employees, and the additional thousands making products sold there.

In the case of Conestoga Wood, they lost in appeals court on grounds very similar to Hobby Lobby. So the Supreme Court was looking at split decisions, as well as additional dozens of similar challenges to the mandate, when they decided to take on the role of final arbiter.

Back in January 2012 the SCOTUS ruled unanimously in favor of religious freedom in the Hosanna-Tabor case.  But the ruling included recognition that it was a church making its hiring decisions. It’s less certain this time. There is the question of whether a commercial enterprise is comprised of people with religious and other guaranteed rights.

Remember back during the last presidential campaign, in 2011, when media had a jolly time laughing at Romney for stating that a corporation was its people? The Supreme Court had already agreed with him concerning political donations in the Citizens United case, in 2010, which has left the tyrannists gnashing their teeth ever since.

So the Supreme Court has found that businesses have political speech rights. If they find that businesses also have religious rights, then the government can only supersede those rights with a compelling reason. (An example of a compelling reason might be that, if a religion believed in punishing rape victims with death for allowing themselves to be made “unclean,” the government would see that as a violation of murder laws and punish accordingly, regardless of the religion’s beliefs.) That seems to me a high burden in this case. They must convince, not only that there is a compelling interest in the government’s protecting all rights to the use of all contraceptives, including abortifacients; they must convince that there is a right to have such products paid for by whomever the government burdens with the assignment. If we didn’t find ourselves in this parallel Obama-verse, we would shrug off such arguments as piffle.

The Court will hear arguments in spring 2014 and make their ruling probably in June. Let us all pray that the justices have the wisdom to recognize that entering into commerce is not a forfeiture of our God-given right to make moral choices.