gawilliams14 is a frequent writer for The Politicus and he asked me to re-post his work on DailyKos
Since the Supreme Court decided Hobby Lobby this past June there has been a flurry of commentary regarding women's health, the extent of federal power over matters of conscience with respect to RFRA, and a host of issued that, while important, have missed the target on what is the most significant issue in that decision. I say that the breadth of constitutional liberty that corporations purportedly have as a consequence of this decision is the issue that needs to be focused on. In this short article (which is by no means a scholarly treatment of the subject, only some observations) I hope to explain why I think that the Court has extended too much protection to corporations.
At its most basic level, a corporation is a sort of legal fiction. The corporation is a creation of the state, the incorporating entity defining the rights, duties, and responsibilities of the corporation. In the 1880's the Supreme Court, without argument or serious deliberation, established that corporations are persons under the Constitution by way of the 14th Amendment. Only one Justice, Hugo Black, has seriously challenged that position, doing so in a dissent in the 1938 case of Connecticut General Life Insurance Company v. Johnson, 303 US 77 (1938), when he said "I do not believe that the word 'person' in the Fourteenth Amendment includes corporations.... Neither the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection." (303 US 77, 85-86). It is generally accepted, despite Justice Black's dissenting views, that a corporation does indeed have some constitutional protection.
At what point, though, does a corporation stop being a "person" and lose the cloak of constitutional protections? A fair reading of Hobby Lobby would suggest that the boundaries are mush broader than previously thought. Naturally corporations need legal protections in order to fairly and competently deal on a level playing field with the myriad of legal issues that business brings about. Contract law is on area of significant importance. By giving the corporations legal status as a person, in a limited way, it would be able to take advantage of the prohibition of Article I of the Constitution in which Congress may not impair contracts. The legal status allows corporations to defend themselves in court. By allowing a corporation to have the status of a person, then it is possible to grant limited speech guarantees to effectively lobby and use the public forum to adequately inform the public of what it is doing, and would like to do. Those are only two examples of the logical reasons that corporations need at least some level of personhood from a constitutional perspective. Yet there needs to be limits. Hobby Lobby amply demonstrates why.
The issue is fairly basic in Hobby Lobby. A federal law was challenged by Hobby Lobby on the basis that it violated the Religious Freedom Restoration Act (hereinafter RFRA). In order to be able to successfully challenge the law in question it had to successfully argue that a for profit, closely held, corporation was protected by RFRA. Up until now it had been generally understood that RFRA was essentially limited to individuals that were harmed by otherwise neutral laws. It placed the law back where it was pre-Employment Division v. Smith, 494 US 872 (1990). Since then it was applied to laws that affected individuals who claimed a violation of their religious liberty. Hobby Lobby, though, was claiming that the religious beliefs (which no one was disputing) of the owners of the company were also protected by RFRA as it relates to their corporation. The Court, in a fairly lengthy opinion by Justice Alito, agrees with Hobby Lobby and extended the boundaries and reach of RFRA accordingly. To be fair it was narrow in the sense of limiting its holding to for profit closely held corporations like Hobby Lobby, but it stretched the credulity of many who felt, and still feel, that a profit corporation is not the same as a religious non-profit. Religious non-profits already have legitimate protections that are directly related to the very nature of the corporation. None of the reasons in those instances are applicable here.
My initial shock at the decision rendered was for a very basic reason. Free exercise and establishment clause protections are designed to protect individuals from government encroachment on matters of conscience. In the case of a non-profit religious corporation it makes perfect sense that laws that are deemed sensible in the general sense, do not work so well in the practical workaday situation. Message is tied inherently to the activities and personnel of a religious non-profit. That is not the case with a for profit. Employees do not have to profess one belief over another. Employees are not required to advertise a non-business message. In addition, a for profit, no matter if it is closely held or not, hires people of all faiths and points of view. By allowing that for profit to dictate what federal law it agrees with when it comes to an issue of religious significance and cloak it with the protection of the First Amendment, and by extension RFRA, then it is saying that a relative few can dictate to the many what protections (legal or otherwise) they may take advantage of. It also gives the power of deciding what is moral and immoral for its employees.
The expanding and contracting breadth of RFRA given by the Court can be remedied with legislation. Hence, while it is the main focal point of the opinion, it is not the most troubling issue. That is left for the idea that a for profit corporation has a religious liberty right under the constitution. Sadly, that has not been the main focus in the aftermath of Hobby Lobby. I hope that in the future a closer look at the issue of constitutional liberties for corporations will be had, taking into serious account that a corporation is out there in the public, which is a pluralistic society, and has a pluralistic employee makeup. That alone should augur badly if this decision is left to stand for a lengthy period of time.