The Supreme Court has continued along its “corporations are people that are more important than you” march with its recent ruling about the right of corporations to impose religious values on its employees. Beyond condemning the ruling, I have nothing new to say, but will re-post two posts I wrote earlier about the matter:
In the case of Hobby Lobby, CEO David Green and his family claimed that their and Hobby Lobby’s freedom of religion is being “substantially burdened” by being compelled to provide insurance that would cover “morning-after pills” and IUDs for employees who wanted such them. The Greens claim that these specific types of contraception prevent implantation of fertilized eggs and are thus equivalent to abortion, which they regard as being against their religious beliefs. There are also those who oppose contraception regardless of the type on religious grounds.
The legal foundation for this challenge is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.
From a moral standpoint, this exemption does seem acceptable if it is assumed that freedom of religion is a moral right. After all, there should be a presumption in favor of freedom and the state would need to warrant such an intrusion. However, if it can do so properly, then the imposition would be morally acceptable. The stock example here is, of course, limitations on the right of free speech.
From both a moral and legal standpoint, there seem to be two main points of concern. The first is whether or not a for-profit corporation is an entity that can be justly ascribed a right to freedom of religion. The second is whether or not such the contraceptive coverage imposes a substantial burden on the free exercise of religion. Obviously, if a corporation cannot be justly ascribed this right, then the second concern becomes irrelevant in this context. However, since it is a simpler matter, I will address the second concern first and then move on to the main point of interest regarding corporations and religious freedom.
For the sake of the discussion, I will assume that those bringing the lawsuit are sincere in their claim that contraception is against their religion and that this is not merely cover for an attack on Obamacare. I will also assume that their religious belief is about the use of contraception.
On the face of it, being compelled to follow the law would seem to not impose any substantial burden in regards to such a belief. After all, those impacted by the law are not required to use contraception. This would, of course, be a clear imposition on their freedom (religious and otherwise). They are also not required to directly give their employees contraception. This could be seen as an imposition by giving them a somewhat direct role in the use of contraception. However, they are merely required to provide a health plan that covers contraception for those who are exercising their freedom to choose to use said contraception. As such, the burden seems minimal—if it exists at all.
It might be objected that to be forced to have any connection to a means by which employees could get contraceptives would be a significant imposition on the corporation. The rather obvious reply to this is that the corporations pay employees with money that can be used to buy contraceptives. So, if an employee would use contraception, then she would most likely just purchase it if it were not covered by her insurance. In cases where the contraceptive medicine is being used for medical reasons (as opposed to being used as contraception) the employee would probably be even more likely to purchase it (which raises the question of whether such use counts as using contraception in a way that would violate these religious beliefs).
As such, if a corporation can insist that health care plans not cover contraception on the grounds that they would be forced to play a role in situation in which an employee might get contraception by means connected to the corporation, it would seem that they could make the same claim in regards to the paychecks they issue. After all, paychecks might be used to acquire all manner of things that are against the religious views of the corporation’s owner(s). This is, of course, absurd and would be a clear violation of the rights and freedoms of the employees.
As such, the second issue is easily settled: being compelled to offer insurance that covers contraception is not a substantial burden on the religious beliefs of corporations.
As noted above, the corporations that are challenging Obamacare on the matter of contraception are doing so on the legal basis of the is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.
Since the act applies to person who hold religious beliefs, it is tempting to simply assert that corporations are not people and hence not covered by the act. However, in the United States corporations are taken to be people in regards to the law.
In fact, the status of corporations as people was critical in the Citizens United ruling that banned restrictions on corporate spending in politics. The general idea is that since a corporation is a person and a person has a right to free speech, then a corporation has the right to free speech.
Given this precedent (and argument), it would certainly seem to follow that a corporation has the right to freedom of religion: Since a corporation is a person and a person has a right to freedom of religion, then a corporation has the right to freedom of religion. This would thus seem to settle the legal matter.
There is an easy and obvious way to reduce this sort of “corporations are people” reasoning to absurdity:
Premise 1: A corporation is a person (assumed).
Premise 2: Slavery is the ownership of one person by another.
Premise 3: The 13th Amendment to the United States Constitution forbids slavery.
Conclusion: The ownership of a corporation is forbidden by the constitution.
This seems completely airtight. After all, if corporations get the right to free speech and the right to religious freedom because they are persons, then they also get the right not to be owned because they are persons. Naturally, this will seem silly or absurd to the very people who easily embrace the notion of corporation personhood in the case of unlimited campaign spending. However, this absurdity is exactly the point: it is okay to own corporations because they are not, in fact, people. They also do not get the right to free speech or religious freedom because they are not, in fact, people.
It could be countered that corporations are very special sorts of people that get certain rights but can be denied other rights in a principled way. Obviously enough, those who own corporations and their defenders might be inclined to hold that corporations get the rights that are useful to the owners (like the right to free speech) but do not get a right that would be a serious problem—like the right not to be owned. However, there is a serious challenge in regards to doing this in a principled manner (and the principle of what is good for me is not a principled principle). That is, the problem is to show that corporations are entities that can justly be ascribed freedom of speech and freedom of religion, but not freedom from ownership. Ironically, as I will endeavor to argue, claiming that corporations are such that they can be justly ascribed the qualities needed to ground a right to freedom of religion would also seem to involve claiming that they have the qualities that would forbid ownership.
In order to exercise religion and thus be entitled to freedom of religion, an entity would seem to require the capacity for religious belief. Belief is, of course, an intentional mental state—a belief is about something and it is mental in nature (although the mental might be grounded in the physical, such as in a nervous system). Being legal fictions, corporations have no mental states and no intentional states. That is, a corporation has no beliefs—religious or otherwise. As such, a corporation is not entitled to freedom of religion—since it has no capacity for religious belief.
This could be countered by claiming that the owner of the corporation provides the intentional states of the corporation. In the case of religion, the religious beliefs of the owner are the religious beliefs of the corporation. Thus, the personhood of the corporation rests on the personhood of the owner. However, if the corporation has the identical mental states as the owner, then it is the owner and vice-versa. While this would handle the freedom of religion matter, it would entail that the corporation is not a separate person in regards to freedom of speech and that ownership of the corporation would be ownership of the owner. If the owner is the sole owner, this would be fine (a person can self-own)—but if the corporation is owned by stockholders, then there would be a problem here since owning people is unconstitutional.
It could be replied that the above is mere philosophical cleverness (as opposed to the legal cleverness that makes a corporation a person) and that the beliefs of a corporation are simply those of the owner.
The obvious problem is that this would entail that the corporation does not have a religious belief that it can exercise. To use an analogy, if the Supreme Court ruled that my left running shoe is a person that I own like a corporation and that thus has my religious beliefs as its own, this would obviously be madness. My shoe, like a corporation, does not itself have any beliefs—religious or otherwise. The mere fact that I own it and it is legally a person does not grant it the capabilities needed to actually possess the foundation for the right to religious freedom. Or speech, for that matter—thus also showing that the idea that corporations have the capability to engage in free speech is absurd. What they do is, in effect, serve as legal puppet “people” manipulated by the hands of actual people. Obviously, if I put an actual puppet on my hand, it is not a person. Likewise, if I create a legal entity as my puppet, it is still not an actual person—its beliefs are just my beliefs and its words are just my words.
The actual person who owns a corporation has the rights of a person—because she is a person. Thus, the owner of a corporation can contend that her religious freedom has been violated. But it is absurd to claim that a for-profit, secular corporation can have its religious freedom violated—it is simply not an entity that can have its own religious beliefs. This distinction between the owner and the corporation certainly seems fair. First, the owner still has all her rights. Second, having a distinction between the owner and the corporation is exactly the point of many of the laws government corporations (such as finances).
If someone insists on claiming that the corporation is not a legal puppet and that it has the capabilities that provide a foundation for these freedoms, then they would run afoul of the argument regarding the ownership of persons. After all, an entity that can hold religious beliefs would thus seem to be a person in a meaningful sense that would forbid ownership.
Thus, the dilemma seems to be this: if a corporation is a person and thus gains the rights of being a person, then it is unconstitutional to own a corporation. If a corporation is not really a person, then it is legal to own it but it is not entitled to the rights of a person, such as freedom of speech and freedom of religion.