We truly have come to a strange place in this country, even jurisprudentially speaking. In this morning's Times we read that the court is likely to take up the question of the “Religious Rights of Corporations”. It seems that the Hobby Lobby objects to providing mandated health insurance benefits to its employees.
We seem to have lost sight of the fact that corporations are creatures of statute. They exercise whatever legal rights, and operate within whatever legal framework the legislature pleases to set up. They could be abolished, or at the very least the right to form new corporations could be abolished, at the whim of the legislature. It always amazes me that this fundamental point is never made when the issue of the “religious rights” of corporations is raised.
Only one court has ruled in favor of granting such rights to corporations, with one judge ruling that it was a far easier call than that made in Citizens United because “A corporation exercising religious beliefs is not corrupting anyone". There are, in fact, sound reasons to grant corporations some free speech protections, for corporations do have to speak. What Citizens United did was demolish the ability of the state to put limits on the way that corporations speak, as well as equating spending money with speech. It was wrongly decided, but although one must strain, it is somewhat intellectually defensible.
A corporation is a legal fiction. It cannot in any intellectually defensible way, be said to either have a religion or need to exercise religious rights. If religiously minded people believe that forming a corporation will force them to behave in ways that they find objectionable, they have the right not to form a corporation. They do not, on the other hand, have a “right” to form a corporation. They have the legal privilege to do so on the terms set forth in relevant statutes.
I'm being optimistic, and I'm betting the Hobby Lobby loses 5 to 4, but I could well be wrong. If it wins, then it will be interesting to see how the court, (think Bush v. Gore) manages to restrict it to the facts. Which religious beliefs are entitled to protection. Years ago, a more rationale court ruled that an Amish employer (not a corporation, but a real person), could not refuse, on religious grounds, to withhold Social Security taxes for his employees. How is that case distinguishable from the Hobby Lobby case, except for the fact that the idea of a corporation with religious beliefs is a legal oxymoron? What does the court do if one of our corporations converts to Islam and seeks to impose …gaspp!…sharia law on its employees? What of the corporation that starts its own religion, which has dogma that just coincidentally has a beneficial impact on the bottom line, such as a moral aversion to paying taxes or a firm belief that God, when he gave us dominion over the earth, was imposing a moral imperative to pollute?
A favorable ruling for Hobby Lobby will by no means be consistent with the free exercise clause, but it will do irreperable harm to the establishment clause. In the case at hand it would grant special privileges to a “religious corporation” that would be denied to secular corporations.
The legal claim is bizarre, but what's even more bizarre is the fact that it has a decent chance of prevailing.
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