fidesquaerens (marta_bee) wrote,

An interesting piece re: corporations being (legal) persons, why we have corporations at all, and why this idea actually makes messes like the whole Hobby Lobby case much simpler to solve. The ninety-second version re: Hobby Lobby is that the ACA would have required Hobby Lobby to provide (arrange and probably pay for a part of it as an employee benefit - I know every job I've worked, the premium has been lower than for group insurance that wasn't subsidized like student insurance) health insurance that covered contraception, including methods the owners thought caused abortifacients. Meaning that (if it was the owners who were organizing the coverage) it would have required a religious family to either pay a fine or violate their religious beliefs, when the government had a less restrictive way of providing that coverage - which gets you into some big problems with the First Amendment and the RFRA.

The lawyer's point (and it was my thought at the time the case was in the courts) is it's not the greens as individuals but the corporation they set up to run the company that's being forced to make that call. Greenfield's point here is that Hobby Lobby shouldn't have won the court case, but that's only because corporations are legal people - otherwise it would have been the Greens who were being forced to facilitate the contraception coverage, which runs up against American religious liberty laws. (Not saying that's the way it should be, but the way he describes it does match with how I understand the RFRA and the freedom of religion clauses in the Constitution.)

So it's nice having a lawyer, in fact a law professor, lay out exactly why my thought at the time was right. Also why I'm uncomfortable with pushes to take away corporate personhood. It seems like a really dangerous move to make in a lot of ways, one we haven't really worked through all the implications of, and I'm not even sure how much of a difference it would make to how we pay for elections - as the piece points out, the $$$ donated to campaigns by elections pales to that donated by wealthy individuals.

The piece also has me thinking about two questions Greenfield (the author) kind of brushes on but doesn't take on directly. First, what would it look like for a corporation to have religious rights that could be violated? I think it does make sense to give corporations some limited rights. For instance, I like the idea that Verizon shouldn't have to turn over details of my search history without due process in the courts, and I'm not sure how you flesh that out legally if they don't have the legal personhood necessary to impose that right. I'm also willing to accept that some businesses can have a religious identity and going along with that a right not to violate well-defined religious beliefs. For instance, a Catholic parochial school should have the same rights not to violate Catholic church teaching that a Catholic individual would. (Which isn't to say those rights win out in every case - just that they're held to the same standard as they would if we were talking about a human person rather than a legal entity.) The problem with Hobby Lobby is there's nothing in the way they present themselves that makes the average customer or even employee think of them as a religious entity that would have religious rights entering into it. And it does seem to me, if a corporation or any entity at all (human or otherwise) has rights, that's the kind of thing that has to be made obvious to people interacting with it if it's not the kind of thing an average person would assume without being told.

Put it this way: if you do business with a church or a specific charity, school, hospital, whatever that's connected with a religion or denomination, you'll assume the group you're working with has a religious element to their corporate culture. You may also assume that an individual person could be religious and religious liberty issues may come into play. But that's not the kind of assumption you're going to make about the local hardware store unless you're told, so in that case it's the corporation's responsibility to make it clear they might call on religious rights. (The for-profit/no-profit thing doesn't hold a lot of sway for me. You can earn a profit without that being the only thing you're going after, just look at socially conscious companies that try to provide a service and then turn a portion of their profits over to some worthy cause; or that try to make a profit but also are doing what they do because they think the service is worthwhile, like Upworthy and the way it shares "news.") For Hobby Lobby to say they shouldn't have to provide (arrange, whatever) contraception coverage because of religious liberty, they have to show that Hobby Lobby the corporation has a religious identity that they could be compelled to go against. And I'm just not seeing that in the way they presented themselves at all. The Greens have religious rights, certainly, but they're not the ones being forced to arrange the coverage.

The other question, which Greenfield doesn't really get into, is this: should religious people have to give up the ability to make sure their money or influence or whatever isn't being used for something they disapprove of, in order to enjoy the protections of incorporation (that they can't be sued, that they can't lose all their personal wealth in a bankruptcy, etc.)? I'll admit, I'm not that crazy about the idea folks have to give up control over the moral ends their money's used to just by transferring it to a corporate shell. I mean, it's one thing to say this money is no longer yours to control once you buy a widget or pay someone to operate a widget-press all week - he's exchanged the money for a service so it's no longer his to control. And it's fine to say if a boss willingly gives a benefit to his employee in exchange for work (like health insurance, say), it's no longer his concern whether the employee uses that benefit to do something the boss wouldn't approve of - any more than it would be if she used her pay check to buy booze and the boss's religion demanded abstention. It seems a little different to me to require bosses to provide a specific service that can only be used in a way they approve of. And while it's not the bosses but the corporation that are providing it, I'm equally uncomfortable telling bosses they have to set up this kind of distinction (basically losing the ability to object to how the company's money is used here) if they don't want to leave themselves personally open to lawsuits. That's a lot of why I think people should be able to set up corporations with religious interests if the business actually does have a religious character to it (which for-profits may be able to manage) and if it's obvious to people interacting with them that that's part of who they're dealing with.

This is actually reason #1,437 why I really, really think employers should be out of the business of arranging health insurance - that we should have either an exchange for everyone with tax breaks given to the employee rather than the business arranging the plan, or (better IMO because I'm not crazy about health insurance companies in general) a universal coverage system like you have in Canada or the UK. But that's tomorrow's issue. If you want a marketplace/insurance system, then at least let it be something individuals arrange for themselves rather than having employers do it. It makes it too hard to change jobs or start your own company, and it creates too many complications for the employers.

But all that aside. What I found so interesting about this article is it really lays out why talking about corporations as legal persons is actually quite helpful to progressives. The best way to protect workers' rights is to depersonalize things and not set up a series of situations where it's boss versus employee and someone always has to lose. Even if you disagree with me on that point, it's still a good introduction to what's at stake here, and well worth reading.
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