By now, you know the hub-bub on the street about Hobby Lobby. This has become a major rallying point around women's rights and access to healthcare... the justice or injustice of men deciding for women that no, women cannot.
There are a lot of politics around that fact, and I want to skirt the issue entirely because there is something else that is way more frustrating to me.
So, let's rap.
Can a corporation be a person?
In April, my students briefed this case.
We worked on the essential question in this case. Can a corporation reserve essential rights as an extension of an individual owner?
On first blush, we considered the justiciability of this case: Is this something political, and thus left to the legislative and executive branches, or is this an essential question that needs to be examined by the courts.
I, for one, thought that this issue would go no further than whether or not Hobby Lobby could be considered a "person." It is definitely a justiciable question, but one that seemed to be so comical, that not much would be examined.
I mean, a person, right? We have talked about personhood in the past, and it is the heady talk of US History classes... are women, blacks, Native Americans... are they people? Is voting democratic enough when the very act of who votes is meant to be representative, as it was in the 1790s... Sure, and our history is the tenuous, deadly story of how this all came to be... a "more" democratic nation. Where every man, woman... and corporation has a vote. Oh, hold the phone.
So, Hobby Lobby is a person. Well, I hope Justice Scalia is ready to have the streets packed with people every time we talk about this issue, because he just shot his own reverred dissent in Webster right in the balls of its feet.
Justice Alito called this a "closely held corporation," or one that is controlled by a small number or one individual. Meaning, it is not publicly traded. So, here is Hobby Lobby... and yes, they are closely held. They are owned by the Green family, who are evangelical Christians.
Additionally, Alito goes on to say that individuals who want to by entrepreneurs should not have to give up their religious rights, because this puts them at a competitive disadvantage. Futhermore, the definition of a person, in this case it being counter-intuitive (as 75% of my students pointed out... and I use that anecdotally in that it is not a logical definition of personhood, on its face), is much vaguer than the average person understands it to be.
Here, according to the Hobby Lobby decision, a person under the 1993 Religious Freedom Restoration Act (states the Government shall not substantially burden a person's exercise of religion) and Federal Dictionary Act (1871), is defined broadly to "include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
And once a person's essential rights (i.e., those under the First Amendment) are infringed... in this case the free exercise clause of the First... then the courts have to observe the law to make sure that it passes the strict scrutiny test.
And here, I believe had the Catholic Church and any of their schools or hospitals been forced to offer birth control in their health insurance policies, the government would have failed the strict scrutiny test. Flat out.
But we are not talking about a church, a religious non-profit organization.
We are talking about a business that sells model trains, silk flowers, and candles.
Yes, they pay well above minimum wage. Yes, they give Sundays off. But that is great for single moms who are not Christian. Single moms who may sell trinkets because they need family time, and a livable wage... which let's be real. That is better employment opportunity than Michaels and Total Crafts, let alone McDonalds.
But now we're getting into the politics of the decision, and I don't want to go there. I want to talk about how Supreme Court decisions work.
Precedence has been established
Folks, here is where it gets funky.
The Supreme Court arbitrates cases generally, and almost always to apply to all similar cases. They don't hear cases exclusively, where the decision only effects an individual scenario or petitioner/respondent (with the exception of Bush v Gore, but even that is debatable.)
Even if Alito in the majority opinion narrowly tailored this to apply to birth control... even if Kennedy said it is just this one time... that is not how cases run. This will be cited in some case in the future where corporations (in which often the owners, whether they be publicly or privately held, often are not legally liable as individuals for nefarious actions taken by companies) are looking for more rights. Looking to be able to discriminate like individuals, looking to be choosy in hiring practices, insurance, INFLUENCE ON ELECTIONS, etc.
This is what bothers me.
Look, on its face. A person is a human. Period. I look back at the debates before the Constitutional Convention, where personhood was indeed debated, and George Mason and Governor Morris did not espouse on how down-trodden the corporation was in not being allowed to have essential rights. I did not see evidence of Thaddeus Stevens taking up the mantle of the Sears of the day and say that they should have freedom of speech.
As a matter of fact, turn-of-the-century America saw the exclusion of corporations, unions, etc. from having these essential rights in laws that outlawed corporate influence on elections. We saw limitations from the courts in Heart of Atlanta to curtail business practices that could be defined as freedom of expression.
So, why this sudden concern for keeping corporations at a competitive advantage, when this has not been the historical precedent?
Photo via Flickr/Ted Eytan