A Philosopher's Blog

Corporations & Religious Freedom II: That Person Thing

Posted in Business, Ethics, Philosophy, Politics by Michael LaBossiere on November 8, 2013
U.S Postage Stamp, 1957

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In my previous essay on corporations and religious freedom, I addressed the issue of whether or not being compelled to provide a health plan that covers contraception is a violation of a corporation’s religious freedom. My conclusion was that it was not. I now turn to the more general issue of whether or not a for-profit corporation is the sort of legal (fictional) entity that can be justly ascribed the capacity for religious belief and hence a right to exercise religious freedom.

As noted in the previous essay, 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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17 Responses

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  1. azzawp said, on November 8, 2013 at 8:14 am

    I know this is hopelessly idealistic, but a better approach would be simply to abandon the doctrine of corporate personality. It is unknown in the common law world outside the USA. Clearly in English, Australian, etc etc corporations can function successfully without personhood US corporations don’t actually need it either.

    • T. J. Babson said, on November 8, 2013 at 10:08 am

      “I know this is hopelessly idealistic, but a better approach would be simply to abandon the doctrine of corporate personality.”

      So the New York Times would not have First Amendment protections? Why is this idealistic?

      • Michael LaBossiere said, on November 9, 2013 at 6:00 pm

        No, it would not. But the humans who write the stories and run it would. Saying that the NYT has freedom of speech is just shorthand for “the writers, editors, and so on have freedom of speech.” Attributing to the corporation itself the capacity for speech would be to engage in either a straightforward error about kinds or the fallacy of reification.

        • Alan said, on November 14, 2013 at 5:38 pm

          It’s worth noting that freedom of the press prevails in Australia, Britain, Canada, New Zealand (which all share a common legal tradition with the US) without needing to endow corporations with fictive rights or reducing the rights of the individuals who own, invents in or work for those corporations..

          • Michael LaBossiere said, on November 15, 2013 at 9:32 am

            True-corporations do just fine without being regarded as people.

          • T. J. Babson said, on November 15, 2013 at 10:42 am

            Not exactly. From today’s NYT.

            Unlike the United States, Britain has no constitutional guarantee of press freedom. Parliamentary committees and the police are now exploiting that lack of protection to harass, intimidate and possibly prosecute The Guardian newspaper for its publication of information based on National Security Agency documents that were leaked by Edward Snowden. The New York Times has published similar material, believing that the public has a clear interest in learning about and debating the N.S.A.’s out-of-control spying on private communications. That interest is shared by the British public as well.

            In the United States, some members of Congress have begun pushing for stronger privacy protections against unwarranted snooping. British parliamentarians have largely ducked their duty to ask tough questions of British intelligence agencies, which closely collaborate with the N.S.A., and have gone after The Guardian instead.

            http://www.nytimes.com/2013/11/15/opinion/british-press-freedom-under-threat.html?_r=0

            • WTP said, on November 15, 2013 at 1:09 pm

              Just more BS from Mike. I’m no lawyer but even a simple reference to what is available on-line, in addition to basic common sense (which as has been pointed out here time and time again, modern philosophers are allergic to) indicate that the legal personhood presented here is a strawman, a fallacy, simple-minded foolishness unworthy of those who should be teaching in an academic institution. I give you even the simplest, pedestrian description from Wikipedia:

              The concept of legal personality is not absolute. “Piercing the corporate veil” refers to looking at the individual natural persons acting as agents involved in a corporate action or decision; this may result in a legal decision in which the rights or duties of a corporation are treated as the rights or liabilities of that corporation’s shareholders or directors. Generally, legal persons do not have all of the same rights—such as the right to freedom of speech—that natural persons have.
              The concept of a legal person is now central to Western law in both common-law and civil-law countries, but it is also found in virtually every legal system.

              Mike’s corporate personhood as a form of slavery argument would be laughed out of any appellate court in the country…well outside of possibly the 9th Circuit in CA…ah, FT…lunch calls.

  2. T. J. Babson said, on November 8, 2013 at 9:42 am

    “Slavery is the ownership of one person by another.”

    Is this really the essence of slavery? Sports teams “own” their players and “trade” them, but they are hardly slaves.

    • Michael LaBossiere said, on November 9, 2013 at 6:03 pm

      They do not fully own them-if they did, the players would actually be well compensated slaves. There is actually no contradiction in there being well-compensated slaves. For example, certain slaves in the Ottoman empire had considerable power and compensation.

  3. Nal said, on November 8, 2013 at 12:45 pm

    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.

    I don’t see how the adjectives “for-profit” and “secular” are required for absurdity.

    I like the syllogism.

    • WTP said, on November 8, 2013 at 1:57 pm

      I believe churches and such can be “incorporated” to some degree. They have ownership of property, of their name, etc. After all, they can and have been sued. They are just not “incorporated” as for-profit institutions. Granted semantics and such, but just pointing out that the concept is not as clear-cut as in colloquial discussion. As such, any corporation can, and most likely will, have a set of values be they religious based or not. They are values that those who establish the corporation feel are what is best for running the corporation. So long as the corporation does not hold values that are antithetical to honest business practices, it is not the business of government to tell a corporation what values it should emphasize relative to others. For instance a corporation is not REQUIRED to provide health insurance and/or health care, at least not at this time. I believe ACA will require this in the future but there is no limit on what they can charge their employees, so effectively it’s a non-requirement. I could be wrong on that latter part, and it’s probably quite complicated with exceptions all over the place, but I think that’s the gist.

    • Michael LaBossiere said, on November 9, 2013 at 5:57 pm

      Actually any entity that lacks intentional states would be incapable of religious belief. Humans, angels, and perhaps even dogs could have religious beliefs. Rocks, shoes and corporations cannot. They lack minds.

  4. ajmacdonaldjr said, on November 8, 2013 at 6:18 pm

    “Since at least Trustees of Dartmouth College v. Woodward – 17 U.S. 518 (1819), the U.S. Supreme Court has recognized corporations as having the same rights as natural persons to contract and to enforce contracts” — http://en.wikipedia.org/wiki/Corporate_personhood

    What about church owned companies? Like LifeWay Christian Stores? LifeWay does not hire, LGBT’s, adulterers, fornicators, etc, because it’s owned by the SBC. I don’t have a problem with this myself.

    • Michael LaBossiere said, on November 9, 2013 at 5:53 pm

      Non-profit religious institutions usually qualify for the religious exemption. The moral challenge is sorting out what would be a legitimate exemption from what would be illegitimate. For example, exempting (the made up) Church of Awesome Male Aryan Purity on the grounds that its doctrines include white supremacy and misogyny would seem to be morally illegitimate. After all, one should not be exempted for being a racist and sexist.

      I do see the value in allowing for moral exclusions, provided that the exclusion is well-founded and consistent with the general good. For example, I’m generally fine with a nunnery remaining female only. After all, men can receive the equivalent in monasteries.

      For profits that are owned by churches don’t qualify. After all, if you want to be a corporation, then you have to play by those rules. If you don’t want to be a for-profit corporation and get the religious exemption, be a church only.

      • WTP said, on November 10, 2013 at 6:37 pm

        This is what happens when you let religion and politics mix. You get people like Mike shoving religion around. Do you understand this AJ? Do you not see where Mike’s Church of Awesome Male Aryan Purity on the grounds that its doctrines include white supremacy and misogyny would seem to be morally illegitimate is an attack on your religious freedom? What gives Mike the authority to determine what is “morally illegitimate”? Do you believe that Mike respects your moral viewpoint on LGBT, etc? How far is Mike’s “Church of Awesome Male Aryan Purity” from a “Church of Awesome Male Catholic Purity” when someone like Mike has the power to decide these things?

        Can someone please direct Mike to my point above, re any corporation can, and most likely will, have a set of values be they religious based or not. They are values that those who establish the corporation feel are what is best for running the corporation. So long as the corporation does not hold values that are antithetical to honest business practices, it is not the business of government to tell a corporation what values it should emphasize relative to others.

        Does ANYONE hear understand that Mike’s philosophical positions have no solid ground in principles? Mike’s arguments basically boil down to what feels good to Mike. Oh, he’s all open to free market for insurance, but “insurance needs to be affordable”, whatever that means to Mike. Like unicorns and flying pigs Mike’s philosophical positions only work for the world that goes on inside Mike’s head.

        Humans, angels, and perhaps even dogs could have religious beliefs. Rocks, shoes and corporations cannot. They lack minds.

        And thus universities, churches, and committees lack minds. Corporations are made up of minds of those individuals who own and run them. Those people have minds. Those people, in the context of the institutions that they run, have values. Some of those values descend from the descend from quality or efficiency, some from ethics, and some from religion. Who gets to draw that line? The more you allow government into the decisions of people’s lives the more tangled life becomes.

      • WTP said, on November 10, 2013 at 6:41 pm

        Meant to add, For example, I’m generally fine with a nunnery remaining female only. After all, men can receive the equivalent in monasteries.

        AJ, do you see the arrogance here? He’s fine with nunneries and monasteries. Well, lucky you. You get to keep your precious institutions. But don’t cross any of the lines of his morality.

  5. T. J. Babson said, on November 8, 2013 at 6:40 pm

    Definition of a non-profit corporation:

    A nonprofit corporation is a corporation formed to carry out a charitable, educational, religious, literary or scientific purpose.

    http://definitions.uslegal.com/n/non-profit-corporation/


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