The Real Error The Hobby Lobby Decision Exposes

I've been spending a bit of time going through the Burwell v Hobby Lobby decision lately.  I'm no expert on US Constitutional law, but it seems to me that the fundamental principle underlying the ruling is the somewhat dubious notion in US law that extends the rights guaranteed to citizens to corporations.

First of all, the logic under which the law extended those rights to corporations contains a fundamental error:  namely that a corporation is not able to exercise certain rights in any meaningful sense.

Consider the following:  A corporation is a legal construct.  It is not a person, and it cannot exercise autonomy from the persons who operate it.

When was the last time you saw a corporation walking down the street, or having a coffee with a friend in a café?  The fact is you haven't seen it - ever.  It doesn't happen.  Yes, a corporation exists, and has a certain reality associated with it.  However, we should never make the mistake of assuming that it is anything other than a legal fiction.

The error was made ages ago when the US passed a piece of legislation which effectively defined a corporation as equivalent to a person for all intents and purposes, a definition which was referenced explicitly in the RFRA act that seems so central to the Hobby Lobby decision.  Since then we have seen a series of cases where corporations have asserted that they must have access to human and civil rights under the law.

Hobby Lobby is just another incremental expansion of those rights, and it is perhaps the most concerning yet.  Few would disagree that there is a reasonable right for a corporation to have access to free speech, or fair trials under the law.  This decision now extends to the corporation the adoption and exercise of rights related to religious freedom.

Consider for a moment the grand irony of such a proposition.  In what universe can we imagine a legal fiction being able to adopt or practice any particular human faith?  You will never see that corporation sitting in a church, or otherwise engaging in worship.  The very idea that a corporation can be said to be "religious" in any way is ludicrous.

Granting a corporation the right to exercise the "proxy right" to reflect the religious beliefs of its ownership is also problematic.  First, the understanding of religious beliefs is highly variable.  Second, the expression of those beliefs is highly individual.  Third, the concept of a "religious belief" has no objective and reasonable test that can be used to establish its validity.  A religious belief is whatever the person who claims it says it is.

While we might commonly think of these rights in the context of a Judeo-Christian understanding of what a "religious belief" is, one has only to look at the breadth and depth of human spiritual/religious thought over the centuries and millennia to realize that there are many "beliefs" which could be asserted that are arguably repugnant.

As has been demonstrated time and again by the decisions of corporate management and boards, at their most fundamental, corporations are inherently sociopathic.  They exist to make their owners money first and foremost.  That means we get decisions such as those we see where health insurance providers do everything in their power to deny treatment; or decisions like those around the Ford Pinto's fuel filler get made.

These are not the decisions of individuals.  They are the collective decisions of committees of people - people who are at the end of the day held accountable to the financial performance of the corporation.  For the management of any corporation to sit there and pontificate about how this or that practice is "immoral" and insist that the corporation must reflect those "moral" beliefs, when ultimately no corporation exists for any purpose other than making its owners money.  

It is my opinion that while there are legitimate rights for corporate entities, those rights must be described separately and apart from the individual rights held by citizens.  Further, those rights must be held as subservient to the individual rights of a country's citizens.

The Hobby Lobby decision allows a corporation's asserted rights to supersede those of the citizens who work for the corporation.  This is an error not of the application of law, but of the creation of law itself.  It is unfortunate that the SCotUS did not acknowledge this in its decision or on its blog.

Dear SCotUS: You Blew It

When you ruled that Hobby Lobby could implement its ownership's personal religious beliefs as policy imposed upon the company's employees, you really opened up the door to a world of abuse.

Hobby Lobby is a privately held corporation.  As are the majority of companies in both Canada and the United States.  Hobby Lobby is unusual in being a large operation with several thousand employees, where most corporations are quite small - a handful of employees at most.

However, I don't care what a corporation's owners "believe".  Frankly, I don't give a damn whether they believe that a condom is an abortifacient form of birth control or if the moon is made of green cheese.  They can believe the world if flat for all I care.

They still have no right whatsoever to stick their nose into my life outside of work.  PERIOD. This isn't just a matter of birth control.  It's a matter of privacy.  By permitting Hobby Lobby's ownership to pick and choose what forms of birth control the company health insurance plan will cover, your ruling allows the company ownership to impose its beliefs on the employees without any recognition of, or respect for, the individual lives that may be affected.  Frankly, I see no difference between Hobby Lobby's position on this and a refusal to provide insurance coverage for lung cancer treatment to a smoker on the basis that I believe that the smoker is making an immoral choice.

In ruling that Hobby Lobby can choose to make such limitations in the coverage of its health care, the SCotUS has provided a wedge that the right wing incrementalists will no doubt attempt to leverage.  We already know that their long term strategy is to incrementally erode rights a step at a time.

The religious right has been trying to dismantle Roe v. Wade for decades now.  You just handed them the tools to chip away further at the rights that Roe v. Wade so clearly set out in terms of women's reproductive health.

We have seen the religious classes argue against access to any kinds of contraception on the basis of their particular worldview.  In fact, in the last decade or so, they have expanded their scope from not just attacking abortion, but going after contraception as well.  Your ruling just handed them wording broad enough that we will no doubt see women's reproductive health pushed off the table in a great many workplaces - on the basis of the "beliefs" of the owners of the company.

How this will play out in cases like the Koch brothers where the company is "publicly traded", but controlling interest is held by the Koch brothers remains to be seen.  Could the Koch Brothers ram through a resolution at the annual general meeting to restrict access to birth control and have it stand?  The Hobby Lobby ruling is ambiguous in this respect.  It talks about the "probabilities", but it doesn't specifically rule out the Hobby Lobby ruling applying in such a situation.  I fully expect to see a series of proxy fights starting in various corporations as religious right groups try to flex their muscles on the AGM floor.

America's LGBT people are also justifiably wary of the Hobby Lobby ruling.  Religious objections have long been at the core of resistance to LGBT equality rights, and underly much of the systemic and explicit discrimination that LGBT people face daily - whether that is when ordering a meal in a restaurant, or trying to land a job.  Quite frankly, although the Hobby Lobby ruling appears to try and exclude such activities from the scope of the ruling, I guarantee you that someone is going to try it.  Religious objections have already been cited by a bakery which wanted to deny service to a gay couple, and I see no reason why this aspect of the Hobby Lobby ruling won't be challenged along these lines.

Let me be incredibly clear.  A corporation is not a person.  It cannot, and should never have been granted "rights" in the same sense that individual citizens hold them.  An individual citizen is possessed of a conscience, of beliefs and above all of individual autonomy.  No corporation can be said to have any of those attributes.  A corporation is a legal fiction designed for the express purpose of making money.  (Has anybody seen Hobby Lobby attending a church?  No, of course not.  Its owners can be seen in court, but one cannot say that the company attends a church)

Yes, a corporation does need certain rights legally supported.  However, those rights must be separate from, and subordinate to the rights of the individuals who participate in that corporation either as owners or as employees.  A corporation is a business intended to perform one function:  make money.  The corporation has a right to reasonable freedoms with respect to the execution of that fundamental goal.

However, those rights must be subjugated to the rights of individual citizens.  A corporation's actions absolutely should never be permitted to interfere with the private lives of citizens in any respect.