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03 July 2014

More On The Hysterical Harridan's Hobby Lobby Reaction

Yesterday, I neglected to address Mrs Clinton's claim '‘It’s the first time that our court has said that a closely held corporation has the rights of a person when it comes to religious freedom.'  Alito's opinion for the majority does, in fact, cite numerous previous examples of where courts have found that they do have religious freedom.  But, Footnote 23 of the ruling is even more revealing as it demonstrates the historical position:

See, e.g., 724 F. 3d, at 385 (‘We do not see how a for-profit, ‘artificial being,’ . . . that was created to make money’ could exercise religion); Grote v Sebelius, 708 F. 3d 850, 857 (CA7 2013) (Rovner, J. dissenting) (‘So far as it appears, the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere’); Autocam Corp. v Sebelius, 730 F. 3d 618, 626 (CA7 2013) (‘Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as ‘persons’ under RFRA’); see also 723 F. 3d, at 1171–1172 (Briscoe, C. J., dissenting) (‘[T]he specific purpose for which [a corporation] is created matters greatly to how it will be categorized and treated under the law” and “it is undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers’).

The principal dissent makes a similar point, stating that ‘[f]or-profit corporations are different from religious nonprofits in that they use labor to make a profit, rather than to perpetuate the religious values shared by a community of believers.’ Post, at 18–19 (internal quotation marks omitted). The first half of this statement is a tautology; for- profit corporations do indeed differ from nonprofits insofar as they seek to make a profit for their owners, but the second part is factually untrue. As the activities of the for-profit corporations involved in these cases show, some for-profit corporations do seek ‘to perpetuate the religious values shared,’ in these cases, by their owners. Conestoga’s Vision and Values Statement declares that the company is dedicated to operating ‘in [a] manner that reflects our Christian heritage and the highest ethical and moral principles of business.’ App. in No. 13–356, p. 94. Similarly, Hobby Lobby’s statement of purpose proclaims that the company ‘is committed to . . . Honoring the Lord in all we do by operating . . . in a manner consistent with Biblical principles.’ App. in No. 13–354, p. 135. The dissent also believes that history is not on our side because even Blackstone recognized the distinction between ‘ecclesiastical and lay’ corporations. Post, at 18. What Blackstone illustrates, however, is that dating back to 1765, there was no sharp divide among corporations in their capacity to exercise religion; Blackstone recognized that even what he termed ‘lay’ corporations might serve ‘the promotion of piety.’ 1 W. Blackstone, Commentaries on the Law of England 458–459 (1765). And whatever may have been the case at the time of Blackstone, modern corporate law (and the law of the States in which these three companies are incorporated) allows for-profit corporations to ‘perpetuat[e] religious values.’

I also want to further explore the issue of corporate personhood, which I addressed at length in LibLogic: Corporations Aren't People, But Trees Are!!!, and how a closely-held corporation can have religious freedom using the Left's own argument.  Previously, I have acknowledged that corporations are putative persons, but, as the Court said in Pembina Consolidated Silver Mining Co. v Pennsylvania, 125 U.S. 181 (1888), ‘Under the designation of ‘person’ there is no doubt that a private corporation is included [in the Constitution, have constitutional rights, and the rights enumerated in the Bill of Rights through the Fourteenth Amendment pursuant to the Doctrine of Incorporation]. Such corporations are merely associations of individuals united for a special purpose…’

But, let's pretend that the Court never ruled such and, since corporations aren't human beings, they cannot practise a religion, speak freely, seek redress of grievances, assemble, associate, etc, like those with real hearts...'cuz, like, um, ya know, they are 'fictional' persons.  OK, if a closely-held corporation, which is generally defined as having 5 or less shareholders that own at least 50% of the stock, is a fictitious person without the same rights as individuals that only exists for tax and liability reasons, then what are you left with?  Um, that would be those five or fewer people, who own at least half of the stock, and the minority owners.  Are you going to claim that those people don't have constitutional rights, including freedom of religion, (Yes, I know that certain strictly-drawn limitations on rights, but, in the case of constitutional rights, those limits must survive strict scrutiny).

Do you honestly believe that the government can deny constitutional rights or infringe upon them through imposition of mandates because a few people exercised their right to associate, engage in enterprise, and elected to do business as a corporation?  Really? Are you saying that the few owners of a closely-held corporation, which you continue to scream isn't really a person, have constitutional rights at all times except when they step foot on the property of the business?  

Think hard before you answer because your previous logic has relied on one premise: 'But, but, but, this is a corporation and isn't really a person!!!'

Let me tell you why you are barking up the wrong tree, which, incidentally, many of you claim is a person just like the animals, who you maintain should have basic legal rights and should be awarded legal representation provided by the taxpayer.  

First, the Court has firmly established the personhood of corporations under Constitution and statutory law.  See:  Trustees of Dartmouth College v Woodward, 17 U.S. (4 Wheat.) 518 (1819), Santa Clara County v Southern Pacific Railroad Company, 118 U.S. 394 (1886), Pembina Consolidated Silver Mining Co. v Pennsylvania, 125 U.S. 181 (1888), among a litany of others.  From Hobby Lobby:

As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required. Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS suggests? An examination of RFRA’s text, to which we turn in the next part of this opinion, reveals that Congress did no such thing.

As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of ‘persons.’ But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.

In holding that Conestoga, as a ‘secular, for-profit corporation,’ lacks RFRA protection, the Third Circuit wrote as follows:

‘General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.’ 724 F. 3d, at 385 (emphasis added).

All of this is true—but quite beside the point.

Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.

As we noted above, RFRA applies to ‘a person’s’ exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term ‘person.’ We therefore look to the Dictionary Act, which we must consult ‘[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.’ 1 U. S. C. §1.

Under the Dictionary Act, ‘the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.’  Ibid.; see FCC v AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 6) (‘We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear’). Thus, unless there is something about the RFRA context that ‘indicates otherwise,’ the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard.

We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v Hialeah, 508 U.S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a ‘person’ within the meaning of RFRA. See Brief for HHS in No. 13–354, at 17; Reply Brief in No. 13–354, at 7–8.

This concession effectively dispatches any argument that the term ‘person’ as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term ‘person’ includes some but not all corporations. The term ‘person’ sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.  Cf. Clark v Martinez, 543 U. S. 371, 378 (2005) (‘To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one’).

Secondly, corporations can, do, and have exercised religious rights and the Court has recognised them on previous occasions.

The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term ‘person,’ but on the phrase ‘exercise of religion.’  According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion.  Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their religious ‘autonomy . . . often furthers individual religious freedom as well.’ Post, at 15 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment)). But this principle applies equally to for-profit corporations: Furthering their religious freedom also ‘furthers individual religious freedom.’ In these cases, for example, allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns. 

Thirdly, if the Green family, which owns Hobby Lobby, had chosen to organise as a sole proprietorship (David Green, who could then employ the rest of his family), LLC, partnership, etc, the government could not infringe upon their religious freedom.

Again, quoting the Court:

In Braunfeld v Brown, 366 U. S. 599, we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the ‘exercise of religion’ involves ‘not only belief and profession but the performance of (or abstention from) physical acts’ that are ‘engaged in for religious reasons.’ Employment Division v Smith, 494 U. S., at 877. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition. Thus, a law that ‘operates so as to make the practice of . . . religious beliefs more expensive’ in the context of business activities imposes a burden on the exercise of religion. Braunfeld, supra, at 605; see United States v Lee, 455 U. S. 252, 257 (1982) (recognizing that ‘compulsory participation in the social security system interferes with [Amish employers’] free exercise rights’).

If, as Braunfeld recognized, a sole proprietorship that seeks to make a profit may assert a free-exercise claim, why can’t Hobby Lobby, Conestoga, and Mardel do the same?

Finally, if the 'closely-held' corporation is really just a family like the Greens in Hobby Lobby and Mardel and the Hahns in Conestoga, then are you arguing that they can have their rights imposed upon because they are in the business of making a profit and can't practise a religion anyway?  If so, you are quite mistaken.

From the Court:

If the corporate form is not enough, what about the profit-making objective?

‘Each American jurisdiction today either expressly or by implication authorizes corporations to be formed under its general corporation act for any lawful purpose or business.’ 1 J. Cox & T. Hazen, Treatise of the Law of Corporations §4:1, p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher, Cyclopedia of the Law of Corporations §102 (rev. ed. 2010). While it is certainly true that a central objective of for profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy conservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well.

HHS would draw a sharp line between nonprofit corporations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave unprotected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals. In fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the ‘benefit corporation,’ a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners.  (See, e.g., M. Sanders, Joint Ventures Involving Tax-Exempt Organizations, 555 (4th ed. 2013) (describing, which ‘advance[s] its charitable goals’ while operating as a for-profit corporation to be able to ‘invest in for-profit endeavors, lobby for policies that support its philanthropic goals, and tap Google’s innovative technology and workforce’ (internal quotation marks and alterations omitted)); cf. 26 CFR §1.501(c)(3)–1(c)(3); Benefit Corp Information Center, online at; e.g., Va. Code Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (‘A benefit corporation shall have as one of its purposes the purpose of creating a general public benefit,’ and ‘may identify one or more specific public benefits that it is the purpose of the benefit corporation to create. . . . This purpose is in addition to [the purpose of engaging in any lawful business].’ ‘ ‘Specific public benefit’ means a benefit that serves one or more public welfare, religious, charitable, scientific, literary, or educational purposes, or other purpose or benefit beyond the strict interest of the shareholders of the benefit corporation . . . .’); S. C. Code Ann.§§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012Cum. Supp.).

In any event, the objectives that may properly be pursued by the companies in these cases are governed by the laws of the States in which they were incorporated—Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue ‘any lawful purpose’ or ‘act,’ including the pursuit of profit in conformity with the owners’ religious principles. 15 Pa. Cons. Stat. §1301 (2001) (‘Corporations may be incorporated under this subpart for any lawful purpose or purposes’); Okla. Stat., Tit. 18, §§1002, 1005 (West 2012) (‘[E]very corporation, whether profit or not for profit’ may ‘be incorporated or organized . . . to conduct or promote any lawful business or purposes’); see also §1006(A)(3); Brief for State of Oklahoma as Amicus Curiae in No. 13–354.


[T]he one pre-Smith case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 (1961), the Massachusetts Sunday closing law was challenged by a kosher market that was organized as a for-profit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked ‘standing’ to assert a free-exercise claim, but not one member of the Court expressed agreement with that argument. (See Brief for Appellants in Gallagher, O. T. 1960 No. 11, pp. 16, 28– 31 (arguing that corporation ‘has no ‘religious belief’ or ‘religious liberty,’ and had no standing in court to assert that its free exercise of religion was impaired’).

It is quite a stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty, left for-profit corporations unprotected simply because in Gallagher—the only pre-Smith case in which the issue was raised—a majority of the Justices did not find it necessary to decide whether the kosher market’s corporate status barred it from raising a free-exercise claim.

While the Court ultimately rejected the petitioners' Establishment Clause and Equal Protection arguments, remember that Gallagher, like Braunfeld, was decided in 1961 when blue laws banning the sale of certain products on Sunday, 'the Sabbath', school prayer, school-sponsored Bible readings were fully constitutional.  The Court wouldn't deal the death blows to school prayer and readings until Engel v Vitale, 370 U.S. 421 (1962), and Abington School District v Schempp, 374 U.S. 203 (1963).  Does anyone believe that Justices Ginsburg, Sotomayor, Kagan, and Breyer would vote today to uphold a state law that prevents Orthodox Jewish or Muslim butchers from selling their products on Sunday, which isn't their Sabbath, and has the result of giving Christian businesses an extra day to engage in commerce (they would only be closed on Sundays, while Jewish businesses would be closed on Saturday and Sunday and Muslim entities would be unable to operate on Friday and Sunday) while limiting their customers' access to kosher or halal goods?

Of course they wouldn't.

They would agree with Justice Potter Stewart, who  joined Justice Brennan's dissent in Braunfeld, and wrote further:
Pennsylvania has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. It is a choice which I think no State can constitutionally demand. For me this is not something that can be swept under the rug and forgotten in the interest of enforced Sunday togetherness. I think the impact of this law upon these appellants grossly violates their constitutional right to the free exercise of their religion.
And, you'll note that Justice Potter didn't differentiate between profit and non-profit corporations or any other form of business entity, including 'closely-held' corporations and sole proprietorships.

As for Mrs Clinton's legal analysis, she must have read the decision in Hobby Lobby while under sniper fire in Bosnia or something.

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