Monday, December 23, 2013

Corporations and religious beliefs

[I started this entry nearly a month ago, but have been struggling to express myself cogently on the subject. I'll try to ensure I've taken current events into account.]

It should surprise no one who has been paying attention that the Supreme Court will be addressing whether corporations can exempt themselves from the Affordable Care Act's rule that compliant insurance plans must provide coverage for contraception. (The rule wasn't part of the legislation per se; it was an operational detail determined by the enforcing agency, the Department of Health and Human Services.) The protesting company is Hobby Lobby, which is privately owned.

(I found "Hobby Lobby: Federal Agent" by Joey Fishkin at the Balkinization blog to be an informative, evenhanded look at the implications of the Hobby Lobby case. Fishkin specifically explains why the Affordable Care Act "changed the baseline" for what employer-provided health insurance means and why employers are less able to assert First Amendment freedoms than they were before the ACA. He reaches similar conclusions to mine, but I wrote the bulk of this entry long before I found Fishkin's piece.)

Attorneys for business owners objecting to the contraception-coverage rule welcomed the Court's decision to take up their challenge.

Kyle Duncan, a lawyer with the Becket Fund for Religious Liberty, which represents Hobby Lobby, said he was pleased that the justices had agreed to resolve the split among the federal appeals courts. “We hope the Supreme Court will vindicate the rights of family business owners,” he said.
The challenges to the contraception-coverage mandate are as absurd a distortion of what it means to be a "person" under the law as anything I've ever seen.

To claim "personhood" for a corporate entity — meaning any group of people, not just a corporation — is a travesty of logic. It's an error that the Supreme Court almost incidentally committed in 1886 in Santa Clara County v. Southern Pacific Railroad Company. Have you ever read what the Court actually wrote about corporate personhood in that landmark decision? Actually, it wrote nothing on the subject in the decision itself. Here's the sum total of the Court's reasoning on corporate personhood, and it is entirely within the syllabus:

One of the points made and discussed at length in the brief of counsel for defendants in error was that "corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States." Before argument, MR. CHIEF JUSTICE WAITE said:

"The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does. "

That's it. There's no explanation as to how the Court arrived at that blunt, unanimous conclusion.

Notice how I referred to the Court as if it had thoughts. That's a mere figure of speech (one I will use again and again in this little screed). "The Court" is an institution comprising human beings. Those human beings each have thoughts. The institution does not. No matter how many human beings comprise a group, that group doesn't think. Neither does it have a conscience, nor ethics, nor experience, nor any of the mental states a human being can experience.

That's the central, inescapable and fatal flaw with the Court's finding that corporate personhood is real.

"Can't the thoughts of the majority be the 'thoughts' of the group?" Sometimes, perhaps, but hardly always. When the thoughts in question touch on a flesh-and-blood person's deepest beliefs, how is it fair that the majority should rule? Just because everyone around me is Methodist doesn't mean I should have to be Methodist. And the patent unfairness of the situation is far worse if it's the sole owner of a business who wants to shape the company's "thoughts" on the subject.

It's astonishing and infuriating that this seemingly unconsidered, incidental remark that isn't even part of a decision has guided the Court's decisionmaking for more than a century. It's way, way past time the Court was required to show its work, so to speak — required to tackle the thorny (il)logic of corporate personhood and to decide what, if anything, that pernicious term means.

If the Citizens United majority had had an ounce of integrity, it would have confronted Santa Clara head-on and would have articulated a defensible standard for how corporate entities should be treated under the law, and along the way would have disavowed the very notion of corporate personhood. At the very least the Court should have explained how corporate entities like Citizens United should be regarded under the law, and should have done so in some way that didn't leave open the possibility — nay, the certainty — that lower courts would have to extend "personhood" to such groups in ways that pervert both the law and good sense. The Court's revisiting of the personhood of corporate entities was inevitable because of its asinine prior holdings. And the worst part of this giant waste of the Court's time? The right-wing Justices will waste even more time twisting the law to suit the ideological axes they're grinding.

Looking at the matter less ideologically, what does it mean for a group of people to exercise religion?

When we think of a group of people exercising religion, we think first and foremost of groups assembled to worship. The people are assembled for the express purpose of carrying out the rituals called for by their religious beliefs. Such a group can be thought to have a religious identity. However, as we saw above, that identity is an illusion, or rather, it is an illusion that "the group" has a fixed identity representing all of its members.

Adherents, in the United States anyway, are free to reject the consensus by leaving the group. Advocates of "religious freedom" for businesses make freedom of association a key defense of their position: if you, the employee, don't like the business' religious stance, you're free to leave. By contrast, the owners can't leave. Thus business owners must be free to run their businesses free from governmental rules that violate the owners' religious principles.

Should this be an acceptable argument?

Consider what the religious-freedom-for-businesses advocates are claiming: the right of a business owner to honor his religious beliefs is more important than the right of his employees to access legal goods and services.

Religious-freedom-for-businesses advocates insist that nobody is preventing employees from accessing those legal goods and services. Advocates simply object to paying for those goods and services out of the business owner's pocket.

Yet that's what happens no matter what if the employee seeks contraception!

Right now, if the employee wants contraceptive products or services, he or she pays for them out of pocket. Under the Affordable Care Act, the employee could purchase them using healthcare insurance. In both cases, the money to buy the contraceptives came from the employer. In neither case is the employer required to purchase the contraceptives directly. Once the employee has been paid — and healthcare insurance is part of the employee's compensation — the employer has no right to dictate how the employee should spend the money. To object to healthcare insurance premiums because the insurance might pay for contraception is as nonsensical as objecting to paying the employee at all because he might use his salary to pay for contraception at the drugstore.

How far can you exercise your right to practice your religious beliefs?

The answer had better stop short of, "where your beliefs affect my beliefs".

Your morality may not be mine. You may hate that. I might, too. Yet if we're to coexist in this wildly varied country — if we're to preserve the spirit and the letter of the social compact that is our constitutional republic — we have got to shape the law so as not to deprive each other of our rights.

To require you to purchase health insurance that covers contraception may seem to you like an intolerable infringement of your rights. I don't understand why: if you object to contraception, don't use it! However, fairness requires that as a business owner (or at least as the person in charge), you may not express your religious belief in a way that denies your employees legally permitted goods and services.

Yes, this is a balancing act. I don't see a way of satisfying the religious beliefs of the business owner and access by employees to a legal benefit without making someone unhappy — without infringing on someone's claimed right. I unhesitatingly come down on the side of the employees who are being deprived of a legal good because I think the employer's freedom to exercise his or her religious belief is afforded enough scope outside the context of his or her business. For this reason, I also think a business cannot be allowed to be a legally recognized venue in which to exercise your religious beliefs.

It may well be that you consciously run your business according to religious tenets. You may deserve kudos for bringing virtue to your vocation. However, your religious belief has to give way if it infringes on your employees' rights. The balance of power already favors the employer; the coercive effect of forcing employees to be subject to their (human) employer's religious freedom would be an intolerable burden on the employees' own First Amendment rights.

The bottom line:

  • Corporate entities are not natural persons.
  • Businesses cannot have First Amendment rights.

We may choose one day to grant businesses, corporate or otherwise, certain rights that resemble those under the First Amendment. However, the sweeping rights afforded to individual human beings cannot be extended in their entirety to businesses and groups. As Citizens United and the current cases arguing for religious rights for corporations attest, corporate personhood is a dangerous, destructive concept that the U.S. Supreme Court should never have indulged. The Roberts Court's integrity, and fidelity to the spirit of the Constitution, will be judged by whether they return our society to fairness by repudiating corporate personhood as logic and comity demand.

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