Advancing Coporate Personhood

By Dennis Riley

By now I presume that you are aware that at the end of its 2013-14 term, the U.S. Supreme Court struck another blow for corporate personhood. Now corporations are not only protected from government interference in their right to speak freely, but in their right to worship freely. Can protection from cruel and unusual punishment – you know, taxes, regulation and the like – be far behind? Wherever the march to full corporate personhood goes next, the reasoning that led the Supreme Court to its decision about the religious rights of corporations contained in Justice Samuel Alito’s opinion for the Court seems at times to enter that twilight zone where disingenuousness meets dishonesty.
To begin with, Justice Alito tells us that the Hobby Lobby case did not revolve around the first amendment guarantee of the right to “free exercise” of religion, but rather around the Religious Freedom Restoration Act (RFRA). In effect, the Court was just telling the administration that it must obey the RFRA law as it executes another law, namely the Affordable Care Act. But a quick tutorial on RFRA reveals the disingenuousness of the Court majority.
Start with the fact that RFRA exists because in 1990 the Supreme Court fundamentally changed the rules surrounding the exercise of religious freedom. In 1963 the Court had held that if a citizen were to challenge an action of government as an interference with the free exercise of his or her religion, that that government action would have to meet a two-part test. First, the government would have to prove that the policy it was pursuing served a compelling state interest. The protection of public health and/or safety was generally the interest to be served. Second, the government would have to show that there was no other, less intrusive way to protect that public interest. But in 1990, following the lead of Justice Antonin Scalia, the Court struck down that two-part test and replaced it with another. Now the government had to prove only that the action in question had a clear secular purpose and was applied to all citizens. In 1993, Congress restored the 1963 compelling-state-interest, least-intrusive-means standard. The Court majority that gleefully used RFRA to expand corporate personhood rights into the realm of religious freedom, of course, included the man who wrote the opinion that sparked the law – a law, by the way, whose reach he helped to narrow in the late 1990s.
Even more important, any case in which an individual asserts that his or her free exercise rights have been threatened by some government action is a first amendment case. Religious freedom rights exist because of the first amendment. What the Court does is to say, in effect, “In this case the action taken by the government does (or does not) violate this person’s religious freedom rights.” What RFRA did was give the Court some instructions about how to strike the proper balance between government’s legitimate authority to work on behalf of the general public with the individual’s right to exercise his or her first amendment rights. One can understand Justice Alito’s motivation to stay away from the first amendment. As an original intent person, he was going to be searching a while for James Madison’s assertion that corporations were included in his idea of the religious freedom language of that amendment. One can also understand why he didn’t want to throw a fellow Justice under the bus by revealing the history of RFRA and Antonin Scalia. But in the end, the opinion is less than candid.
Justice Alito misleads us in a much more significant way, however, when he insists the opinion is narrow in its scope and provides the administration with a pretty easy path to a less intrusive way of accomplishing its goal of guaranteeing contraceptive coverage to all women through their employers. Just use the path used for non-profit organizations with the same religious freedom claims. The path might have looked easy enough in the Hobby Lobby opinion, but within a few days the Court had told Wheaton College – a small Christian college in Illinois – that it might have a very strong case for impingement on its religious freedom in the requirement that it fill out a form indicating its decision not to provide the coverage for its employees. If filling out the form would violate the rights of the non-profits, why would it be OK for the profit-making “persons” of corporate America?
But most of all, Justice Alito misleads us when he says that, “It is not for us [the Court] to say that their religious beliefs are mistaken or unsubstantial.” In a literal sense, of course, it is not for the Court to say to someone that his or her religious beliefs are stupid, don’t count for much in our society, etc. But it very much is for the Court to say that a person’s religious beliefs do not, in this case, trump the judgment of the government as to how to serve and protect the majority of citizens. Or it is very much for the Court to say that a person’s religious beliefs do trump the government’s judgment about how to serve and protect the public. In fact, that is precisely the role of the Court whenever an individual challenges the government based on a right guaranteed in the Bill of Rights.

If the Court is not going to decide that some individual views of religious freedom are trumped by the government representing a general public interest, then how is it going to respond in the soon-to-arrive Eden Foods case? The owner of Eden Foods, it seems, has said that his religious rights are violated if the government tells him to buy anything for his employees, “Be it Jack Daniels or contraception.” Or how would they have handled the request from a Racine bar owner to receive the religious organization property and sales tax exemptions? The bar owner was an ordained minister and had the mail-order credentials to prove it. Every Saturday his congregation met to worship the female body. He said he honestly believed he qualified. The Wisconsin Department of Revenue did not agree.
Enough out of me.

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