Hobby Lobby v. Sebelius -- CU revisited

[kandrathe]

It's a group of papers that outline business transactions.

The legal fiction that corporations are treated as individuals dates back to Roman times. It is what allows them to own property, sue, and to be sued by others. To unravel it would be pretty much impossible. In US case law the question was decided in Dartmouth College v. Woodward, 17 U.S. 518 (1819). Also consider that from a legal framework, there is little difference between a collection of stock holders banding together and calling themselves incorporated and a collection of workers banding together and calling themselves a union. Union's certainly would advocate they have speech, and esp. political speech rights. While our experience of unions is more secular today, it has not always been the case (e.g. The Knights of Labor c. 1870).

"The decision settled the nature of public versus private charters and resulted in the rise of the American business corporation and the free American enterprise system." -- Newmyer, R. K. (2001). John Marshall and heroic age of the Supreme Court. Baton Rouge: Louisiana State University Press.

Consider also that in the Federal Dictionary Act; "the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals; "

If the decision is to gag corporations religious 1st amendment rights, would it be that much removed to gag corporations 1st amendment political speech rights? Isn't that exactly the finer mesh the SCOTUS refused to employ in CU? Kennedy wrote for the majority in that opinion, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." Wouldn't this argument extend to religious practice? Especially in light of the recent congressional action in Religious Freedom Restoration Act of 1993 which was very interdenominational, and an almost unanimous vote, and signed by Bill Clinton. We are not privy to how corporations develop their political positions, just as we are not privy to how corporations develop their religious positions. I would suggest if we are to maintain this legal fiction of corporate personhood as we do, we need to understand it in its full legal context.

Generally I agree with your #1 point, "The family running the business chose to operate a for profit craft business. In doing so, they are open to all laws that govern the rights of a for profit business, including those that may go against their personally held religious beliefs." Although, in law, this has only applied when it comes to service of the public, yes, their religious beliefs cannot discriminate against, or for any particular protected classes. But, in their internal operations, I believe they retain the rights to decide on things within their belief systems if those "beliefs" are generally lawful. At odds here is that the new ACA law determines which health insurance plans can be purchased, and they claim some of the mandates violate their beliefs. Also, they cannot opt out without harms, in that a "fine/tax" is imposed if they do not purchase these insurance policies to which they hold are against their conscience. In their minds, it is very much "damned if they do, and damned if they don't" -- they have two options that both violate their beliefs.

In #2, you bring up the alleged hypocrisy of Hobby Lobby exercising conscience in employee health insurance, but not the same scrutiny of employee retirement plans. And, I bet that a) they didn't realize, and b) they'll make some changes. But... This case isn't about that -- and it's just not about Hobby Lobby. What about Conestoga Wood Specialties, who are a Mennonite community who also object to being forced to violate their conscience? What about AutoCam? They are a deeply religious Catholic family that also feel the mandate violates their conscience. And... I guess most people don't understand how 401K plans work. The employee picks their investment, the employer contracts with a company that provides the choices. In fact, it is very likely that the reporters at Mother Jones are also hypocritically heavily invested in Defense Contractors, Big Pharma, and Big Oil. Unless you own a fund expressly limited to "conscience" investing, your fund manager has the latitude daily to invest your money with the most profitable investment regardless of who/what had to die in the process.

For #4, I would just ask you; Can a corporation have a "stance", or an "opinion" worthy of speech rights? Can that be a position they may need to speak about, either in advocacy or in opposition? Can a group like the Sierra Club have an opinion against building a pipeline from Canada to the Gulf of Mexico, and similarly can Keystone have the right to defend their plan against powerful political criticism? If corporations, unions or communities can have deeply held positions, or convictions, what makes that different from deeply held convictions that are religiously inspired? No, you are right, there is no single soul, but rather the participants who belong to the community, the union, or the corporation in which they participate at some level do so because they believe in the principles of the founders, or owners, top management, or even the board of directors. However the group formed its identify, and its convictions are probably foundational to how the entity was organized.

I don't know about you, but for me... My decisions on who to work for are deeply influenced by what impact my work would have on the people and the planet. I've variously chosen not to accept lucrative positions with companies that build weapons, government spy agencies, or junk food wrapper makers, and some who rip off poor people with easy high interest rate credit. I have built educational software, helped a railroad survive deregulation, helped various manufacturing companies better automate themselves, and lately, I'm working with helping a number of colleges and universities remain relevant and adapt to innovations the world wide web makes possible. If I didn't believe in the mission and the work, then I'd do something which is mentally easier and probably more lucrative.

Edit: Another wrinkle I've been mulling upon... Currently HHS has a REE (Religious Employer Exemption), but it only considers non-profits eligible. Some private companies, like those in this case are for-profit religiously oriented companies that have all the characteristics as the ones allowed in the REE. The only difference is the 401c3 status. Does the for-profit, versus the not-for-profit status of an organization make a difference? It is clear in the REE language that it is not made for financial reasons, but to side step issues of conscience with many religiously oriented not-for-profit organizations. If not-for-profit corporations can have a conscience, would it also be possible for for-profit corporations to have a conscience?