Thursday, April 02, 2015

The Religious Beliefs of Corporate Persons

I still think the Catholics should go with this
more-inspiring sigil for the modern age.
Back in 2012, well before it occurred to me that a corporation could be said to have religious beliefs, I commented on the idea of "corporate personhood."  I focused on this idea at length in that post, but recent events have made it worth looking at again.

Indiana RFRA and Corporations

In the 2010 Citizens United decision, the Supreme Court decided that these corporate entities had the ability for unlimited, unregulated political speech, which can also be made behind a mask of secrecy about the funding sources. And in the 2014 Hobby Lobby decision, it was made clear that, at least for "closely-held corporations," they also had religious liberties.

This was recently codified into law in my home state of Indiana, as part of the controversial Indiana state-level version of the Religious Freedom Restoration Act, which resulted in widespread concerns about discrimination of LGBT members. I happen to agree that the original wording of the law would have given some additional support for this sort of discrimination (which is already legal in Indiana, actually, due to no anti-discrimination protections for LGBT groups).

In comparing the Indiana and federal RFRA statutes, one difference that stands out is Section 7.3. In this section it seems that the Indiana law specifically sets very broad definitions of what sorts of organizations/institutions may make claims of having religious freedoms burdened, broader than the "closely-held corporation" rule from the Hobby Lobby decision:
(3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that:
(A) may sue and be sued; and 
(B) exercises practices that are compelled or limited by a system of religious belief held by: 
(i) an individual; or 
(ii) the individuals; 
who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.
The question this leaves open is whether courts interpret the above wording as applying only to closely-held corporations, as the Supreme Court ruled for the federal RFRA under the Hobby Lobby case. Nothing in the wording above indicates to me any such limitation as being an inherent part of the law, so I think corporations can at least argue that the limitation doesn't apply. If a publicly-traded entity is owned 51% by people who want to invoke a claim under RFRA, it would seem like it should be allowed under this wording. A non-closely-held corporation that wants to exercise these sorts of religious interests is free to, at least, make the argument that they should be able to under the Indiana RFRA, in a way that they couldn't under the federal RFRA.

This is followed up by the other major difference between this legislation and others, which is Section 9:
Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.
It seems that when applying the federal RFRA, there has been dissent within the courts about whether protected religious liberty can be claimed in a private dispute between individuals or not. The clear and unquestioned intended goal of RFRA was to provide defense of religious activity from government regulation, from what I can tell. Its use of the phrase "and obtain appropriate relief against a government" can be interpreted as restricting its claims to those of the government, or of including the government among those relief can be sought from. Different circuits have ruled different ways in this.

The wording of the Indiana law under Section 9 makes it explicitly clear that protections of religious liberty can be invoked in disputes between private individuals ... which, in conjunction with Section 7.3, would seem to mean that corporations can invoke religious liberty defenses in completely private disputes.

Against Corporate Personhood

This attribution is false, but I like the quote
and don't feel like changing the graphic.
Here's how I, as a small business owner of a sole proprietorship that operates without corporate protections and have looked into whether I need those protections, view the way a corporation functions:
A corporation is an entity that is used to perform an act on behalf of an individual or individuals, in a way that isolates the individual from harm. Should an individual attempt to use a corporation to perform an act, retribution strikes the corporation rather than the individual. The corporation may be terminated only by bankruptcy or willful dissolution, but is otherwise immortal. Even if terminated in this way, it may pass its essential essence along to another entity which, in most particulars, may function as essentially identical to the original entity in service of the owner. The person behind the corporation is unharmed, except by the inconvenience of having to create a new entity.
Gamers and fantasy readers will recognize this:
It is a construct of some kind, possibly a necromancer's undead minion, a golem, a wizard's homoculous, or some other kind of summoned/crafted proxy creature. In Shadowrun, it would be Rigger's robotic drone (or a corporation, since they have those in Shadowrun too).
So, essentially, we now have immortal non-human entities with the ability to amass wealth for unlimited political speech and able to invoke religious beliefs in disputes with other people and corporations.

I do not think this is a good outcome.

Because, simply put, corporations are not people.

The corporation does not, as a corporation, possess the ability to have a religious belief or conviction, it can only express the religious beliefs and convictions of the owners. Any claim to religious liberty, and the ability to exercise religious liberty, is only as a second-hand consequence of the rights held by the individual who runs the corporation. Those rights are protected for the individual, and may be protected as expressed through a corporation, but the corporate entity itself does not possess those rights.

There may be many perfectly valid reasons for supporting the broad freedom of corporations to serve as the means of expressing personal liberties held by their owners, but corporate personhood is not among them.

You'll hear all kind of people quoting nonsense about how corporations are people, but this diminishes the richness and complexity of what it means to be a person. It is offensive in every way, and as a rhetorical tool needs to end.