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My Horse Needs a New Hobby

Does corporate personhood include religious freedom?
hobby_lobby

Because I just don’t have much more to say on the whole religious freedom question and I’m tired of saying what I’ve already said.

On the subject of “are corporations people,” meanwhile, I feel like Jacob T. Levy makes a pretty interesting argument why, even if you believe corporations have a robust set of constitutional rights, that not only doesn’t imply supporting the result in Hobby Lobby but may well cut the other way:

The general doctrine of corporate personhood is right: corporations can enter into contracts, own property, and be held liable for wrongdoing or debts *as separate entities* from the various natural biological persons involved– and this is a necessary and valuable organizational innovation.

The particular doctrine of corporate persons as holders of constitutional rights is right: the corporation qua property owner has, for example, 4th Amendment rights against its property being unreasonably warrantlessly searched, and 5th Amendment rights against it being taken for public use without compensation, or against being deprived of it without due process of law. . . .

Hobby Lobby seems to me to stand for a very different proposition: “[P]rotecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.” . . .

The judgment today maintains that a closely-held corporation like Hobby Lobby is so close to the natural persons behind it that it’s not really a distinct corporate person at all; it’s just a costume that the Green family puts on and takes off as it suits them.

The decision has to pierce that veil because corporations qua corporations have no particular reason to hold religious views of any kind:

Notice that the right of a corporation to freedom of the press or to be secure in its property against searches or expropriation makes perfectly good sense in terms of the corporate person’s own interests, regardless of who its owners happen to be. Corporate religious liberty isn’t like that. The reason we have the emphasis here on “closely-held” corporations is because the corporate veil is being pierced in order to look directly at the natural persons behind it. . . .

[H]obby Lobby, a for-profit corporation like IBM, can’t be described as itself having a religious belief. Making sense of that idea requires making the corporate person disappear from the description and talking about the Green family, treating the “closely held” corporation as if it were a partnership or sole proprietorship that doesn’t have a corporate-style separateness from the natural persons. Try as I might, I can’t persuade myself that that’s right. Corporations are persons, or corporations are made out of people– the two thoughts lead to very different conclusions, and I think protecting the former requires rejecting this kind of easy recourse to the latter.

His view is basically congruent with Patrick Deneen’s view of the place of corporations in our collective life, but coming from the opposite end.

I’m not sure I agree with that view, because it presumes a radical dichotomy between for-profit entities, which can only have financial interests, and actual people, which can have a variety of interests and values. (Not-for-profit entities can, presumably, also have interests and values other than profit, by definition.) You can believe in the idea of corporate personhood without believing that private corporations must be profit-maximizing entities, but can have some characteristics of a community, albeit a hierarchical one rather than a democratically-organized one. But it’s still an interesting counter to the line that Hobby Lobby was yet another decision in favor of corporate power.

(Ok: I’ll talk about the religious freedom stuff briefly. I think it’s appropriate for the government to guarantee access to contraceptive services – I think it’s a positive good. I’d like that to be achieved in a way that doesn’t make religious believers feel they are directly providing a service they consider profoundly abhorrent, because I believe in a robust conception of freedom of religion. I see a clear distinction between that and the cakes-for-gay-weddings business, because there is nothing abhorrent about providing a cake – the abhorred (by the baker) act is the wedding, and the baker is not providing that; allowing her to refuse service is pretty plainly discrimination against people whose behavior she disapproves of, and the only question is whether we think it’s invidious and whether the class discriminated against deserves any protections. Whether we should be more or less vigilant about policing discrimination in general is another matter. I think my hypothetical Scientology school network is a tougher nut because Scientologists believe mental health services do active harm, and I really do tend to think that the reason the Court wouldn’t recognize a right to deny mental health services in such a case is that it simply wouldn’t treat the moral logic of the Church of Scientology with the dignity that it accords the views of the Catholic Church. Which is pretty much what the Court said in Hobby Lobby when it disclaimed any possible application of this decision to minority religions that object to transfusions, etc. And yes, that troubles me.)

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