A Philosopher's Blog

Hobby Lobby Repost

Posted in Business, Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on July 1, 2014
English: A typical contraceptive diaphragm

(Photo credit: Wikipedia)

The Supreme Court has continued along its “corporations are people that are more important than you” march with its recent ruling about the right of corporations to impose religious values on its employees. Beyond condemning the ruling, I have nothing new to say, but will re-post two posts I wrote earlier about the matter:

In the case of Hobby Lobby,  CEO David Green and his family claimed that their and Hobby Lobby’s freedom of religion is being “substantially burdened” by being compelled to provide insurance that would cover “morning-after pills” and IUDs for employees who wanted such them. The Greens claim that these specific types of contraception prevent implantation of fertilized eggs and are thus equivalent to abortion, which they regard as being against their religious beliefs. There are also those who oppose contraception regardless of the type on religious grounds.

The legal foundation for this challenge is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.

From a moral standpoint, this exemption does seem acceptable if it is assumed that freedom of religion is a moral right. After all, there should be a presumption in favor of freedom and the state would need to warrant such an intrusion. However, if it can do so properly, then the imposition would be morally acceptable. The stock example here is, of course, limitations on the right of free speech.

From both a moral and legal standpoint, there seem to be two main points of concern. The first is whether or not a for-profit corporation is an entity that can be justly ascribed a right to freedom of religion. The second is whether or not such the contraceptive coverage imposes a substantial burden on the free exercise of religion. Obviously, if a corporation cannot be justly ascribed this right, then the second concern becomes irrelevant in this context. However, since it is a simpler matter, I will address the second concern first and then move on to the main point of interest regarding corporations and religious freedom.

For the sake of the discussion, I will assume that those bringing the lawsuit are sincere in their claim that contraception is against their religion and that this is not merely cover for an attack on Obamacare. I will also assume that their religious belief is about the use of contraception.

On the face of it, being compelled to follow the law would seem to not impose any substantial burden in regards to such a belief. After all, those impacted by the law are not required to use contraception. This would, of course, be a clear imposition on their freedom (religious and otherwise). They are also not required to directly give their employees contraception. This could be seen as an imposition by giving them a somewhat direct role in the use of contraception.  However, they are merely required to provide a health plan that covers contraception for those who are exercising their freedom to choose to use said contraception. As such, the burden seems minimal—if it exists at all.

It might be objected that to be forced to have any connection to a means by which employees could get contraceptives would be a significant imposition on the corporation. The rather obvious reply to this is that the corporations pay employees with money that can be used to buy contraceptives. So, if an employee would use contraception, then she would most likely just purchase it if it were not covered by her insurance. In cases where the contraceptive medicine is being used for medical reasons (as opposed to being used as contraception) the employee would probably be even more likely to purchase it (which raises the question of whether such use counts as using contraception in a way that would violate these religious beliefs).

As such, if a corporation can insist that health care plans not cover contraception on the grounds that they would be forced to play a role in situation in which an employee might get contraception by means connected to the corporation, it would seem that they could make the same claim in regards to the paychecks they issue. After all, paychecks might be used to acquire all manner of things that are against the religious views of the corporation’s owner(s). This is, of course, absurd and would be a clear violation of the rights and freedoms of the employees.

As such, the second issue is easily settled: being compelled to offer insurance that covers contraception is not a substantial burden on the religious beliefs of corporations.

U.S Postage Stamp, 1957

(Photo credit: Wikipedi

As noted above, the corporations that are challenging Obamacare on the matter of contraception are doing so on the legal basis of the is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.

Since the act applies to person who hold religious beliefs, it is tempting to simply assert that corporations are not people and hence not covered by the act. However, in the United States corporations are taken to be people in regards to the law.

In fact, the status of corporations as people was critical in the Citizens United ruling that banned restrictions on corporate spending in politics. The general idea is that since a corporation is a person and a person has a right to free speech, then a corporation has the right to free speech.

Given this precedent (and argument), it would certainly seem to follow that a corporation has the right to freedom of religion: Since a corporation is a person and a person has a right to freedom of religion, then a corporation has the right to freedom of religion. This would thus seem to settle the legal matter.

There is an easy and obvious way to reduce this sort of “corporations are people” reasoning to absurdity:

Premise 1: A corporation is a person (assumed).
Premise 2: Slavery is the ownership of one person by another.
Premise 3: The 13th Amendment to the United States Constitution forbids slavery.
Conclusion: The ownership of a corporation is forbidden by the constitution.

This seems completely airtight. After all, if corporations get the right to free speech and the right to religious freedom because they are persons, then they also get the right not to be owned because they are persons. Naturally, this will seem silly or absurd to the very people who easily embrace the notion of corporation personhood in the case of unlimited campaign spending. However, this absurdity is exactly the point: it is okay to own corporations because they are not, in fact, people. They also do not get the right to free speech or religious freedom because they are not, in fact, people.

It could be countered that corporations are very special sorts of people that get certain rights but can be denied other rights in a principled way. Obviously enough, those who own corporations and their defenders might be inclined to hold that corporations get the rights that are useful to the owners (like the right to free speech) but do not get a right that would be a serious problem—like the right not to be owned. However, there is a serious challenge in regards to doing this in a principled manner (and the principle of what is good for me is not a principled principle). That is, the problem is to show that corporations are entities that can justly be ascribed freedom of speech and freedom of religion, but not freedom from ownership. Ironically, as I will endeavor to argue, claiming that corporations are such that they can be justly ascribed the qualities needed to ground a right to freedom of religion would also seem to involve claiming that they have the qualities that would forbid ownership.

In order to exercise religion and thus be entitled to freedom of religion, an entity would seem to require the capacity for religious belief. Belief is, of course, an intentional mental state—a belief is about something and it is mental in nature (although the mental might be grounded in the physical, such as in a nervous system). Being legal fictions, corporations have no mental states and no intentional states. That is, a corporation has no beliefs—religious or otherwise. As such, a corporation is not entitled to freedom of religion—since it has no capacity for religious belief.

This could be countered by claiming that the owner of the corporation provides the intentional states of the corporation. In the case of religion, the religious beliefs of the owner are the religious beliefs of the corporation. Thus, the personhood of the corporation rests on the personhood of the owner. However, if the corporation has the identical mental states as the owner, then it is the owner and vice-versa. While this would handle the freedom of religion matter, it would entail that the corporation is not a separate person in regards to freedom of speech and that ownership of the corporation would be ownership of the owner. If the owner is the sole owner, this would be fine (a person can self-own)—but if the corporation is owned by stockholders, then there would be a problem here since owning people is unconstitutional.

It could be replied that the above is mere philosophical cleverness (as opposed to the legal cleverness that makes a corporation a person) and that the beliefs of a corporation are simply those of the owner.

The obvious problem is that this would entail that the corporation does not have a religious belief that it can exercise. To use an analogy, if the Supreme Court ruled that my left running shoe is a person that I own like a corporation and that thus has my religious beliefs as its own, this would obviously be madness. My shoe, like a corporation, does not itself have any beliefs—religious or otherwise. The mere fact that I own it and it is legally a person does not grant it the capabilities needed to actually possess the foundation for the right to religious freedom. Or speech, for that matter—thus also showing that the idea that corporations have the capability to engage in free speech is absurd. What they do is, in effect, serve as legal puppet “people” manipulated by the hands of actual people. Obviously, if I put an actual puppet on my hand, it is not a person. Likewise, if I create a legal entity as my puppet, it is still not an actual person—its beliefs are just my beliefs and its words are just my words.

The actual person who owns a corporation has the rights of a person—because she is a person. Thus, the owner of a corporation can contend that her religious freedom has been violated. But it is absurd to claim that a for-profit, secular corporation can have its religious freedom violated—it is simply not an entity that can have its own religious beliefs. This distinction between the owner and the corporation certainly seems fair. First, the owner still has all her rights. Second, having a distinction between the owner and the corporation is exactly the point of many of the laws government corporations (such as finances).

If someone insists on claiming that the corporation is not a legal puppet and that it has the capabilities that provide a foundation for these freedoms, then they would run afoul of the argument regarding the ownership of persons. After all, an entity that can hold religious beliefs would thus seem to be a person in a meaningful sense that would forbid ownership.

Thus, the dilemma seems to be this: if a corporation is a person and thus gains the rights of being a person, then it is unconstitutional to own a corporation. If a corporation is not really a person, then it is legal to own it but it is not entitled to the rights of a person, such as freedom of speech and freedom of religion.

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29 Responses

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  1. TJB said, on July 1, 2014 at 10:24 pm

    Mike, you are now on record as wanting to take away First Amendment protections from corporations like the New York Times and Washington Post. Also, for that matter, academic journals (since they own the copyright of the articles they publish).

    • WTP said, on July 2, 2014 at 12:22 pm

      He dumped the First Amendment when he had a meltdown over S&P downgrading the US debt. Does any of this surprise you? Of course the NYT and WPost will get a bye because the amendment as stated explicitly mentions the press and ignore the spirit of the law. Obviously the great advantage free speech from any quarter has given our society is an open marketplace for ideas, regardless of their source. Mike doesn’t like that. He will weasel, obfuscate, and sophisticate (or what Evs it’s called, though such is likely the root of sophisticate) to hide, as if anyone with half a brain is fooled by such, his exceptions for the political left while pressing the right. It’s all bullshit, TJ. We’ve been round and round and round on this. Such is the real reason he won’t communicate with me, because I hold him to facts. As Magus would say, he just dismisses opposing views with a hand wave. The professor grades his own papers. It’s a sham.

    • Michael LaBossiere said, on July 3, 2014 at 2:46 pm

      Not at all. Corporations do not have rights, actual people do. Those who write for the NYT and Post have their first amendment rights and these individual rights apply. After all, actual people write the articles and pieces and if the state tries to silence these people, the state would be violating the 1st Amendment rights of those people. The NYT’s rights are merely a shorthand for the rights of the actual people who do the writing, editing and so on. Sure, it is harmless to save time and breath and refer to the NYT as having rights, just as I’ll say things like “FAMU requires” when what I really mean is that the people who set up the graduation requirements decided students needed to do X and put that into the catalog. I don’t believe in an actual FAMU with intentional states or person hood. That would be to fall into the fallacy of reification and some bad metaphysics.

      We do not need to believe that corporations are people to accept that individuals retain their individual rights when acting in a collective. However, it would be the fallacy of composition to assume that the collective gets its own rights as a person over and above the constituents. To use the obvious analogy, suppose that krispy Kreme is having Free Donut Day so that each person gets a free donut. Suppose that I have formed 250 corporations and I am the sole owner of each. If each corporation is a person, then I am thus entitled to pick up 251 donuts. One for me, 250 for the corporate people. Since my corporations have no mouths, I’ll have to eat the donuts after voting to make it corporate policy.

      To use another analogy, the corporation does not get to vote in elections-the actual people do. Having 250 corporations does not yield 250 votes (plus my normal one).

      So, I am for the rights of individuals and agree with the right people have to form collectives. However, the collective is not a person and is not entitled to rights that are granted person hood. Naturally, there are all sorts of laws handling the social constructs that are collectives and some of these might be good while some might be rather bad.

      So, no, I am not on record for that at all.

  2. ajmacdonaldjr said, on July 2, 2014 at 5:17 am

    It’s better for corporations and governments to impose their irreligious and immoral values on us, right? Hobby Lobby doesn’t want to pay for its employees’ pesticides for peoples? How dare they love life!! That’s not politically correct!

    • Michael LaBossiere said, on July 2, 2014 at 1:43 pm

      Not at all. Corporations should not be in the value imposition business. If a company wants to impose religious values, then it should become a church. If it wants to sell craft material for a profit, then it needs to abide by the same rules as every other company.

      That said, I certainly do recognize that laws can be unjust. If the law is evil, then it should be opposed rather than just having limited exemptions based on a sincere belief in factually untrue claims.

      • WTP said, on July 2, 2014 at 2:41 pm

        “Philosophers” should not be in the value imposition business either. No ones’ values were being imposed upon. Anyone working at Hobby Lobby can buy whatever birth control they please. They can even have abortions until the cows come home (provided they have the sick time to cover it). What they cannot expect is to have someone else pay for these things. Your argument is a flat out LIE. How can you not see that and still call yourself a philosopher? What utter bullshit.

        • Michael LaBossiere said, on July 2, 2014 at 7:01 pm

          Either the insurance is part of the employee’s compensation or the employee pays for it herself. If it is compensation, then it is no more “having someone else pay for it” then it would be to buy it with the paycheck. If the employee pays for it herself, then it is not someone else paying for it.

          Now, if Hobby Lobby is just handing out free insurance coverage to people, then that changes things. In that case, Hobby Lobby would be paying for those things.

          • WTP said, on July 2, 2014 at 8:33 pm

            Yeah, two problems here smart boy. One, you’re wrong. And two, you’re being a dick. YOU said, AND I QUOTE…ahem…”If a company wants to impose religious values, ”

            Hobby Lobby is not imposing religious values. Can you find a dictionary on the internet or must I constantly do it for you? If anything, secular values are being imposed on them, but that is not the point I wish to focus on here.

            As for your attempt at obfuscating who pays for it, it’s even more bullshit. If I pay you for work that you do and you spend it on legal pot or Marxist lit, no skin off my nose. But if someone forces me, by law, to buy for you Marxist lit or pot, whether you need or want it or not, that is wrong by any reasonable moral standard. But again, not the point I have been making. Again, you and your fellow leftists continue to say that Hobby Lobby is controlling what people have access to. This is a big, fat lie. Stop being a dick.

            Also, you might want to try to understand what a closely held corporation is and how it differs from other. I say you might want to, but that would only be true if you were an honest philosopher and not a sophist.

        • Michael LaBossiere said, on July 2, 2014 at 7:02 pm

          Naturally, there is still the issue of whether the state should mandate coverage of birth control. Or Viagra. Or any product or service. But that is a distinct issue.

  3. T. J. Babson said, on July 4, 2014 at 4:17 pm

    Mike, here are some lefty defenses of corporate personhood:

    Like a free press? Thank corporate personhood

    http://www.vox.com/2014/7/2/5860732/six-reasons-liberal-should-like-corporate-personhood

    5 mistakes liberals make about corporate personhood and Hobby Lobby

    http://www.vox.com/2014/7/1/5860742/5-mistakes-liberals-make-about-corporate-personhood-and-hobby-lobby

    • T. J. Babson said, on July 4, 2014 at 4:20 pm

      Matt Yglesias (who I rarely agree with):

      The basic functions of a corporation — including contracts and property ownership — would be useless unless corporations enjoyed basic constitutional protections. If corporations didn’t hold the same due process rights as human beings, the idea of firms holding property and entering into contracts would be worthless.

      By the same token, the idea that corporations have a right to free speech is essential to preserving the values of the First Amendment. It’s imperative that not only do Fox News’ anchors have the right to criticize the Obama administration, but that Fox News as a corporate entity has that right. Otherwise, censors could effectively silence critics by heavily fining hostile broadcasters and publishers even while leaving the human critics unmolested. Similarly, NARAL Pro Choice America and the National Organization for Women are themselves corporations. It’s critical to the democratic process that they are able to criticize Supreme Court decisions, lobby congress, and otherwise act as constitutional persons.

      http://www.vox.com/2014/7/1/5860742/5-mistakes-liberals-make-about-corporate-personhood-and-hobby-lobby

      • wtp said, on July 5, 2014 at 2:09 pm

        With the few exceptions you note here, and Ygleias is a bit surprising though it seems he’s more principled than I had given him credit for, the left including much of the Democrat party has jumped the shark with this issue. The sort of hysteria based on flat out lying has moved them past the point of no return.

        I ask you TJ, what do you expect from these exchanges with Mike when he is all-in on this crap? The abuse of language is the most despicable. Language enables us to communicate without having to hit each other over the head with big sticks. If we don’t respect language and the meaning of words, eventually we will fall back on the sticks.

      • Michael LaBossiere said, on July 7, 2014 at 5:14 am

        Attacking the collective would be the same as attacking the individuals. If someone sets off a bomb at my school, it is an attack on actual people. There is no need of yet another entity, FAMU, to be brought into the picture as a person.

        Sure, corporations are useful legal fictions for specific purposes. However, the fact that people find them useful for various financial matters does not make them actual people who have natural rights.

        • T. J. Babson said, on July 7, 2014 at 8:17 pm

          “However, the fact that people find them useful for various financial matters does not make them actual people who have natural rights.”

          Mike, the concept of corporate personhood is a legal fiction. No one claims corporations are actual people with “natural rights.”

          • WTP said, on July 7, 2014 at 9:17 pm

            I refer you to my question above. Given all that has transpired here over the years, do you really expect an honest answer from Mike? Do you believe that Mike, like most of the political left, is actually thinking these things out for himself OR is he (and they) understanding what it is that is “correct” to believe and then look for reasons to believe it?

            • TJB said, on July 7, 2014 at 9:28 pm

              I do think Mike has jumped the shark with this one. He wants corporations to be people when it comes to responsibilities, but he doesn’t want to give them any rights.

            • Michael LaBossiere said, on July 8, 2014 at 1:17 pm

              Collective responsibility does not require that the collective be a person. For example, I can accept that a university is responsible for providing a quality education at a reasonable price without taking the university to be a person. All that is needed is a legal and financial construct crafted for practical and legal reasons. To use the obvious analogy, a corporation is a legal tool, much like a mindless factory robot is a mechanical tool. Neither is a person, though both can perform useful functions.

              Apparently one of the useful and desired functions of a collective entity is that it legally takes responsibility for the actions of certain individuals within it. So, as with the Jerry Sandusky case, the university is held accountable for the actions of the people who committed the actual misdeeds. This can, of course, be seen as an unjust double whammy: the individuals are punished, but then the collective is treated as a responsible entity as well. But, this would seem to be part of the price of taking the corporation as a legal entity that also provides shielding in other cases (such as how a corporation shields the owner’s personal finances).

          • Michael LaBossiere said, on July 8, 2014 at 1:04 pm

            Actually, some of the debate about the rights of corporations does involve the issue of whether they have such rights or not. See, for example, http://www.vqronline.org/essay/corporations-and-natural-rights.

            In any case, the most recent arguments operate from an assumption of person hood that grants corporations rights whose grounds lie in natural right theory. Now, a new foundation for the system of rights in the United States could be crafted by splitting off from the Lockean, etc. foundations and the system could be based entirely on artificial rights. Hobbes certainly provides a means of doing so-beyond the most basic rights (such as the right of self-preservation) all other rights are granted by the states. There is also a well-established intellectual tradition that rejects rights altogether.

            • T. J. Babson said, on July 8, 2014 at 5:37 pm

              You really do have it in for the little guy, Mike.

              More than 150 years ago Alexis de Tocqueville noted in his Democracy in America that the genius of the American political tradition lay in what he called associations but what in today’s terminology we would call corporations. In Europe, to advance some political, social, or economic cause required some wealthy patron. In America, by contrary, groups of people who individually might not have had deep pockets could come together and pool their resources by founding an organization to advance the cause.

              Far from being a tool of repression, corporations advanced the interests of democracy and equality by allowing the little guy to organize to accomplish what otherwise could only be achieved by the very rich. Ending corporate personhood would not stop billionaire individuals like the Koch brothers or George Soros from using their wealth to affect the political process, but it would hamper small grass roots organizations which choose to use the corporate form. Ultimately, the long tradition of corporate personhood represents not a threat to democracy, but a support of it.

              http://noahpinionblog.blogspot.com/2013/09/corporate-personhood-why-its-awesome.html

            • Michael LaBossiere said, on July 9, 2014 at 1:54 pm

              As I have said, I’m fine with collectives/unions/corporations in general. My issue is with taking a collective to be a person.

            • T. J. Babson said, on July 9, 2014 at 4:03 pm

              You are missing the point. If the corporation does not have any rights, then the group of people is only as strong as an individual. It is by allowing groups to have rights that people are able to join together and stand up to the powerful.

              Your vision of the state vs. the individual with no other institutions having any power is truly chilling.

            • Michael LaBossiere said, on July 15, 2014 at 3:55 pm

              I’ve not claimed that collectives lack collective rights. I have just argued that corporations are not people.

            • T. J. Babson said, on July 9, 2014 at 4:11 pm

              Why do you trust the government more than a corporation? If I don’t like Walmart I can go to Costco. Where do I go if I don’t like the government?

            • Michael LaBossiere said, on July 15, 2014 at 3:57 pm

              I don’t have a great deal of trust in either. But, they generally won’t do horrible things to me unless they have some mknor reason. or make a mistake.

            • WTP said, on July 9, 2014 at 5:08 pm

              You are missing the point. But TJ, that’s his MO and has been for years. Never admit a mistake, an error or such, feign confusion, obfuscate, and then count on others getting tired of the bullshit and giving in, just to get on with things. Or he just will walk away. I ask you again, what is the point of any of this?

            • WTP said, on July 14, 2014 at 9:49 am

              Even the Washington Post calls them out on their lying. How much rope, leeway, understanding, etc. can you give before you stop and realize that argument, debate, rational discussion for finding common ground in disagreement is impossible if the entity you are dealing with does not respect the meaning of words?

              The Fact Checker generally does not award Pinocchios for “misspeaking” or for statements of opinion. And we obviously take no position on the Supreme Court opinion. But this collection of rhetoric suggests that Democrats need to be more careful in their language about the ruling. All too often, lawmakers leap to conclusions that are not warranted by the facts at hand. Simply put, the court ruling does not outlaw contraceptives, does not allow bosses to prevent women from seeking birth control and does not take away a person’s religious freedom.

              http://www.washingtonpost.com/blogs/fact-checker/wp/2014/07/14/democrats-on-hobby-lobby-misspeaks-opinion-and-overheated-rhetoric/

    • Michael LaBossiere said, on July 7, 2014 at 5:09 am

      Still don’t buy it. Individual rights plus the right of forming collectives suffices without buying into the myth of the corporate person.

      • T. J. Babson said, on July 7, 2014 at 11:51 am

        So if someone sues a corporation with a million shareholders, each shareholder needs to get a lawyer and show up in court?

        • Michael LaBossiere said, on July 7, 2014 at 4:52 pm

          Not at all. I have no problem with treating groups as groups for practical purposes. Just as five people accused of a crime or suing someone can have the same lawyer, the shareholders can get a lawyer to represent them.

          My main issue is with taking corporations to be people, which is a radically different notion from accepting collective rights. To use a crappy analogy, my family would be entitled to a family discount but if we became a corporation, the corporation would not thus be entitled to its own donut on free donut Tuesday. I also could not carpool with my corporation.


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