Wednesday, July 02, 2014

Hobby Lobby: Corporations and separation of church and state

I've been taking a day to read the hubris over the very recent Hobby Lobby decision by the United States Supreme Court. There are many very interesting analyses to go around. In particular, I've found two on the Politico Utah Hub, a place designed for the people of Utah to bat the issues around. It seems very agreeable and civilized for debate.

Two posts were of interest to me. One from a lawyer who points out that corporations aren't people, but the people who act through corporations are. He asks a simple question: do we give up rights when we act through a corporation. He doesn't seem to think so. I happen to disagree and I'll explain why in a few moments.

The other article suggests that the justices of the court are making moral judgments rather than legal judgments. The second article notes that the opinion does very little to protect freedom of religion because it can allow employers to impose their religious beliefs upon others. The choice for employees then becomes: buy your own insurance at higher cost or just accept what we offer, sucker.

I also note that there is talk of a new urgency for a single payer plan. Pundits are pointing out that if employers get to pick and choose which benefits to offer based upon their professed religious beliefs, there will need to be a reliable place for people to get coverage. The insurance exchanges are starting to look really good right about now because they offer pretty good insurance (I know from personal experience and will share more in a future article), and that coverage is portable. The end of employer sponsored health insurance may be near, they say. I mean, lets get real here. How many CEOs will suddenly sprout wings and halos with this ruling?

That's it for the news. I want to focus now on the first article on the question of constitutional rights within the context of corporations. Corporations are a legal fiction designed to permit people to take risks with limited liability. They were originally designed to provide a way to accomplish very big tasks over generations. The bigger the task, the greater the potential liability. A noteworthy example is Union Pacific, a corporation created to build a railroad across the country. That task took 6 years and a lot of labor to build.

But there is something else in the past that America seems to have forgotten. For much of American history, corporations were prohibited from making political contributions of any kind. Many of the laws prohibiting such conduct provided for stiff criminal penalties. So, if money is speech, that was a serious restriction on a so-called constitutional right. That went by the wayside around 1890.

Corporations are creations of the state. The people delegate power to the state, the states create corporations. Who is on top again? Oh, right. The People are on top.

But you wouldn't know it from that ruling. The court (and many pundits in favor of the ruling) forget that corporations are creations of the state and subject to the will of the people. No one in their right mind actually believes that corporations are people because corporations are a legal fiction. There is a social contract that we can expect when we do business with and as a corporation. We are giving up some rights to get the privilege to act with limited liability when we act through a corporation.

What else do we get as a corporation? Perpetuity - you often get to choose when the corporation dies. I remember learning about the film industry, that corporations are changed like socks - to produce a film, a corporation is created. When production is done, the corporation is dissolved to prevent any blowback in the form of litigation after production is complete. People are not treated that way. They get one life and that's it.

I think it's disingenuous to promote the idea that corporations have the same rights as people for another reason. When we do business with an entity, we come to rely upon that entity. We may even be faced with a monopoly player in the market that happens to be a private, closely held corporation. If that corporation gets to make decisions based on theological principles, that corporation is, in a way, imposing the religious beliefs of the people who run it upon me.

More to the point, corporations, as creations of the state, are extensions of the government. Allowing religious beliefs to influence corporation activity could possibly be construed to be a violation of the separation of church and state. The owners of corporations, especially the really big ones, seem prone to forgetting that they exist at the pleasure of the people. That's the social contract bargain for limited liability and perpetuity, but once forgotten, who cares if the People are supposed to be on top?
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