NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Monday, June 30th, 2014

Roberts Court’s logic: Corporations are people, so they’re entitled to religious liberty

The Roberts Court has done it again.

Deter­mined to make the ter­ri­ble impli­ca­tions of the Cor­po­ra­tions Unit­ed and McCutcheon deci­sions look tame by com­par­i­son, the Supreme Court ruled this morn­ing that because it believes cor­po­ra­tions to be peo­ple, an arti­fi­cial for-prof­it enti­ty like Hob­by Lob­by is enti­tled to reli­gious lib­er­ty, and so it does not have to fol­low laws that its own­er or own­ers find objec­tion­able.

Hob­by Lob­by’s right wing own­ers sued the Oba­ma admin­is­tra­tion after the pas­sage of the Patient Pro­tec­tion Act, want­i­ng the courts’ bless­ing to allow them to deny access to con­tra­cep­tives to their female employ­ees, even though the con­tra­cep­tives were being pro­vid­ed through the wom­en’s insur­ance plans.

Today, the Roberts Court grant­ed its bless­ing, in anoth­er 5–4 deci­sion, with Roberts, Kennedy, Scalia, Ali­to, and Thomas (all men!) form­ing the major­i­ty.

Gins­burg, Sotomay­or, Kagan, and Brey­er dis­sent­ed; Gins­burg authored the blis­ter­ing dis­sent, which effec­tive­ly assailed the major­i­ty’s log­ic:

In a deci­sion of star­tling breadth, the Court holds that com­mer­cial enter­pris­es, includ­ing cor­po­ra­tions, along with part­ner­ships and sole pro­pri­etor­ships, can opt out of any law (sav­ing only tax laws) they judge incom­pat­i­ble with their sin­cere­ly held reli­gious beliefs. Com­pelling gov­ern­men­tal inter­ests in uni­form com­pli­ance with the law, and dis­ad­van­tages that reli­gion-based opt — outs impose on oth­ers, hold no sway, the Court decides, at least when there is a “less restric­tive alter­na­tive.” And such an alter­na­tive, the Court sug­gests, there always will be when­ev­er, in lieu of tolling an enter­prise claim­ing a reli­gion-based exemp­tion, the gov­ern­ment, i.e., the gen­er­al pub­lic, can pick up the tab.

The Court does not pre­tend that the First Amendment’s Free Exer­cise Clause demands reli­gion-based accom­mo­da­tions so extreme, for our deci­sions leave no doubt on that score. Instead, the Court holds that Con­gress, in the Reli­gious Free­dom Restora­tion Act of 1993 (RFRA) dic­tat­ed the extra­or­di­nary reli­gion-based exemp­tions today’s deci­sion endors­es. In the Court’s view, RFRA demands accom­mo­da­tion of a for-prof­it corporation’s reli­gious beliefs no mat­ter the impact that accom­mo­da­tion may have on third par­ties who do not share the cor­po­ra­tion own­ers’ reli­gious faith — in these cas­es, thou­sands of women employed by Hob­by Lob­by and Con­esto­ga or depen­dents of per­sons those cor­po­ra­tions employ.

Lat­er on in her dis­sent, Gins­burg observed that the Court was mak­ing entire­ly new law by grant­i­ng the plain­tiff’s wish­es, and set­ting a very bad prece­dent to boot.

Until this lit­i­ga­tion, no deci­sion of this Court rec­og­nized a for-prof­it corporation’s qual­i­fi­ca­tion for a reli­gious exemp­tion from a gen­er­al­ly applic­a­ble law, whether under the Free Exer­cise Clause [of the U.S. Con­sti­tu­tion] or RFRA. The absence of such prece­dent is just what one would expect, for the exer­cise of reli­gion is char­ac­ter­is­tic of nat­ur­al per­sons, not arti­fi­cial legal enti­ties.

As Chief Jus­tice Mar­shall observed near­ly two cen­turies ago, a cor­po­ra­tion is “an arti­fi­cial being, invis­i­ble, intan­gi­ble, and exist­ing only in con­tem­pla­tion of law.” Trustees of Dart­mouth Col­lege v. Wood­ward , 4 Wheat. 518, 636 (1819).

Cor­po­ra­tions, Jus­tice Stevens more recent­ly remind­ed, “have no con­sciences, no beliefs, no feel­ings, no thoughts, no desires.” Cit­i­zens Unit­ed v. Fed­er­al Elec­tion Comm’n , 558 U. S. 310, 466 (2010) (opin­ion con­cur­ring in part and dis­sent­ing in part).

In a rejoin­der to Jus­tice Ali­to, the author of the major­i­ty opin­ion, Gins­burg point­ed out that a reli­gious com­mu­ni­ty and a for-prof­it cor­po­ra­tion are very dif­fer­ent:

The Court notes that for-prof­it cor­po­ra­tions may sup­port char­i­ta­ble caus­es and use their funds for reli­gious ends, and there­fore ques­tions the dis­tinc­tion between such cor­po­ra­tions and reli­gious non­prof­it orga­ni­za­tions… Again, the Court for­gets that reli­gious orga­ni­za­tions exist to serve a com­mu­ni­ty of believ­ers. For-prof­it cor­po­ra­tions do not fit that bill. More­over, his­to­ry is not on the Court’s side. Recog­ni­tion of the dis­crete char­ac­ters of “eccle­si­as­ti­cal and lay” cor­po­ra­tions dates back to Black­stone, see 1 W. Black­stone, Com­men­taries on the Laws of Eng­land 458 (1765), and was reit­er­at­ed by this Court cen­turies before the enact­ment of the Inter­nal Rev­enue Code.

The deci­sion also con­sti­tutes a slip­pery slope, Gins­burg said, imply­ing that, if giv­en the oppor­tu­ni­ty, Roberts, Kennedy, Ali­to, Thomas, and Scalia would allow pub­licly-trad­ed cor­po­ra­tions to use reli­gion as a pre­text for not hav­ing to fol­low U.S. law:

The Court’s deter­mi­na­tion that RFRA extends to for-prof­it cor­po­ra­tions is bound to have unto­ward effects. Although the Court attempts to cab­in its lan­guage to close­ly held cor­po­ra­tions, its log­ic extends to cor­po­ra­tions of any size, pub­lic or pri­vate. Lit­tle doubt that RFRA claims will pro­lif­er­ate, for the Court’s expan­sive notion of cor­po­rate personhood—combined with its oth­er errors in con­stru­ing RFRA—invites for-prof­it enti­ties to seek reli­gion-based exemp­tions from reg­u­la­tions they deem offen­sive to their faith.

In a foot­note, Gins­burg elab­o­rates:

The Court does not even begin to explain how one might go about ascer­tain­ing the reli­gious scru­ples of a cor­po­ra­tion where shares are sold to the pub­lic. No need to spec­u­late on that, the Court says, for “it seems unlike­ly” that large cor­po­ra­tions “will often assert RFRA claims.” Per­haps so, but as Hob­by Lobby’s case demon­strates, such claims are indeed pur­sued by large cor­po­ra­tions, employ­ing thou­sands of per­sons of dif­fer­ent faiths, whose own­er­ship is not dif­fuse.

“Close­ly held” is not syn­ony­mous with “small.” Hob­by Lob­by is hard­ly the only enter­prise of siz­able scale that is fam­i­ly owned or close­ly held. For exam­ple, the fam­i­ly-owned can­dy giant Mars, Inc., takes in $33 bil­lion in rev­enues and has some 72,000 employ­ees, and close­ly held Cargill, Inc., takes in more than $136 bil­lion in rev­enues and employs some 140,000 per­sons.

Today’s deci­sion by the Supreme Court is as sense­less as Plessy v. Fer­gu­son and Dred Scott v. Sand­ford. The for­mer deci­sion took fifty years to be over­turned by the War­ren Court in Brown v. Board of Edu­ca­tion.

We can­not afford to wait fifty years for Cor­po­ra­tions Unit­ed, McCutcheon, Hob­by Lob­by, and pre­vi­ous deci­sions equat­ing cor­po­ra­tions to peo­ple and mon­ey to speech to be over­turned. We need a con­sti­tu­tion­al amend­ment explic­it­ly stip­u­lat­ing that nat­ur­al per­sons are the only kind of per­son there is.

Cor­po­ra­tions have not, are not, and nev­er will be anal­o­gous to per­sons. They are, as Jus­tice Mar­shall said in the deci­sion excerpt­ed above by Jus­tice Gins­burg, arti­fi­cial enti­ties. They do not live, breathe, eat, sleep, get sick, laugh, cry, or die. A cor­po­ra­tion is more like a gov­ern­ment than a liv­ing, breath­ing per­son.

And, in fact, cor­po­ra­tions increas­ing­ly are behav­ing like gov­ern­ments… pri­vate­ly-owned gov­ern­ments that are the equiv­a­lent of oli­garchies.

Con­sid­er the impli­ca­tions of today’s deci­sion. Hob­by Lob­by’s own­ers can deny access to con­tra­cep­tives to their female employ­ees, mere­ly because they do not believe in preg­nan­cy pre­ven­tion. As far as they are con­cerned, they should be able to deter­mine what kind of health­care their employ­ees get, because they’re the own­ers of the com­pa­ny. The employ­ees have no say. Their only choice is to quit. That’s cor­po­rate servi­tude at its finest: Take it or leave it employ­ment.

U.S. Rep­re­sen­ta­tive Suzan Del­Bene, who rep­re­sents NPI’s home con­gres­sion­al dis­trict, issued a state­ment con­demn­ing the rul­ing and vow­ing to do what she could to pre­vent repro­duc­tive rights from being fur­ther cur­tailed.

I’m very dis­ap­point­ed by the Court’s deci­sion to allow close­ly held cor­po­ra­tions to deny access to basic health­care, such as con­tra­cep­tion, to their employ­ees. With this rul­ing, the Court has allowed employ­ers to impose their reli­gious beliefs on their work­ers. A woman’s boss should nev­er be the one to make health­care deci­sions for her – these deci­sions should be between her and her doc­tor.

Birth con­trol is a crit­i­cal com­po­nent of women’s health­care. Nine­ty-nine per­cent of women use birth con­trol at some point in their lives, and more than 600,000 women in Wash­ing­ton state have ben­e­fit­ed from the require­ment that insur­ance com­pa­nies pro­vide pre­ven­ta­tive health­care free of charge.

The Supreme Court’s deci­sion could also have seri­ous con­se­quences far beyond con­tra­cep­tion. While the Court’s deci­sion sug­gests that today’s rul­ing applies only to con­tra­cep­tive cov­er­age, I am trou­bled by the oppor­tu­ni­ty it cre­ates for employ­ers to poten­tial­ly object to fur­ther med­ical ser­vices on reli­gious grounds. In the com­ing weeks, I’ll be work­ing with my col­leagues in Con­gress to address this rul­ing and to ensure women’s access to birth con­trol is pro­tect­ed.

We need to do more than just mit­i­gate today’s deci­sion. If we don’t stop the Roberts Court from destroy­ing our free­doms, they will keep going until Amer­i­ca has turned into a mod­ern-day feu­dal soci­ety, run by cor­po­ra­tions and for cor­po­ra­tions instead of peo­ple. We can’t let that hap­pen.

We need to reclaim our democ­ra­cy from the Roberts Court with a con­sti­tu­tion­al amend­ment wip­ing out all of the bad case law that they’ve estab­lished. Until we do this, progress on a wide range of oth­er issues is going to be elu­sive. Look what the Court has just done to a key pro­vi­sion of the Patient Pro­tec­tion Act.

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One Comment

  1. Ter­ri­ble deci­sion. Thanks for the analy­sis.

    # by Shanna Minnette :: July 5th, 2014 at 11:03 PM