Davis Merritt: Is ‘corporate religion’ a constitutional right?

02/19/2013 8:56 AM

02/19/2013 8:56 AM

Are corporations people? Of course not. Corporations are just corporations and people are, well, people. And the U.S. Supreme Court has never definitively said they are the same.

So what’s behind the “We the People Amendment” and similar efforts to amend the Constitution to declare an obvious fact? Mostly semantics. We need a clearer context for the continuing debate about the appropriate legal standing of corporations, including what rights they should have.

We need a more precise, un-freighted language because the debate is headed for another crucial decision point: Do corporations have feelings? Can corporations have religious beliefs that warrant constitutional protection?

We cannot usefully discuss such issues so long as the debate begins with erroneous declarations, such as in the recent headline by the Atlantic, a distinguished and normally reliable magazine: “The Supreme Court Still Thinks Corporations Are People”; and by prominent political figures – in this case the formerly prominent Mitt Romney: “Of course corporations are people.”

The debate has proceeded under other misconceptions:

•  That corporations are fundamentally evil, a nonsensical position that ignores the fact that many other entities are corporations: labor unions, country clubs, merchants associations, Lions Clubs, the National Football League – almost any group of people who pool their interests and money to accomplish something.
•  That the rights recognized in the Constitution belong to individuals but those rights somehow disappear when they act collectively.
•  That it would be practical to declare that corporations are not covered by the Constitution. If that happened, what principles would guide our legal treatment of corporations?

The Constitution does not address the rights of nonhuman entities (nor cows, for that matter), but over the years federal courts have decided that corporations in some instances must be treated in ways that also apply to people: protection against warrantless searches, for instance, and access to the courts to sue and be sued, and being required to pay taxes and obey the law.

But that does not mean corporations are people, nor does it assure that the courts’ decisions make good public policy (Citizens United being the most glaring example of disastrous policy). It only means that some core constitutional principles may apply to corporations in specific ways.

The next bend in the road is particularly treacherous, because it raises the question of whether a corporation can have religious beliefs that must be constitutionally protected.

The devout family that solely owns Hobby Lobby Stores Inc. does not want to provide employees with emergency contraception services and drugs as required by the Affordable Care Act, believing they amount to abortion. The family members claim for the corporation, as an extension of themselves, First Amendment protection against government intrusion into their beliefs.

It’s a case full of large consequences. Outright refusal by Hobby Lobby could lead to crippling fines of up to $1.3 million a day. A decision wholly favorable to the company would come very close to finally declaring the personhood of corporations since it would erase the distinction between corporate activity and human beliefs. Corporations could then claim religion-based exemption from almost all other legal requirements: the minimum wage, safety laws – a list limited only by imagination and audacity.

Courts facing such pivotal decisions have often found ways to sidestep. We can only hope that happens in this case.

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