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The Long Reach of Personhood

Normally, Barataria takes up a hot news story after the mainstream press has released its authoritative take on the subject and social media has frothed over it for a while. Not the Burwell v. Hobby Lobby decision. I have to admit, I’m confused by this decision because it seems to be incredibly vast in its potential scope, a position echoed by Justice Ginsburg in her dissent. That dissent even became a song as people around the ‘net struggle to make sense of this.

If there has been a legal earthquake, it will do what upheaval and disaster always do – highlight how everything has changed and eventually demand systemic responses. This decision, if nothing else, shows how utterly ridiculous it is to have the cost of health care foisted onto businesses in the first place. Beyond that …. it’s hard to tell just what it means.

Is it just a store, or is it a person?

Is it just a store, or is it a person?

We’ll start with the facts. The majority opinion ruled that Hobby Lobby cannot be compelled to provide contraceptive care for female employees if it violates their religious convictions. It’s still not clear if it applies to all contraception or the issuse at hand – IUDs and “Plan B” contraception which prevents a fertilized egg from successfully implanting.

But the court chose to rule more broadly than that. Justice Alito wrote in the majority opinion, “The purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.”

Exactly what is a “closely held corporation” is unclear, but this decision was built on the foundation of corporate personhood. And that brings up a whole host of issues, mostly as to whether this is limited to health care or if it can be more broadly defined.

Did "unclean" people handle this?

Did “unclean” people handle this?

For example, say the owner of all the shares of an LLC (thus “closely held”) food store is a devout Moslem and doesn’t want someone described in their faith as “unclean” handling food. Would that be OK? How about denying admission to the store to people who are “unclean”? Or, let’s go there, having them sit at the lunch counter?

And does this apply to all faiths, or just Christians?  Does the First Amendment weigh in at some point?

But perhaps this only applies to health care. Does it logically follow that any small business owner that really hates Obamacare should now convert to Christian Science, a faith that does not believe in modern medicine? How does Equal Protection, a concept so heavily favored by Justice Roberts that it easily uncorked Marriage Equity in many states, apply to different medical needs by different genders? Why did corporate personhood, a new invention, trump centuries of rulings on equal protection? Does corporate personhood trump female personhood?

Left-Wing Icon or just the only person paying attention?

Left-Wing Icon or just the only person paying attention?

That’s where Justice Ginsburg’s dissent comes in. “The court, I fear, has ventured into a minefield,” she wrote, and described at least some of that minefield in very explicit terms. “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”

That should be obvious, but it wasn’t to five members of the Supreme Court. The definition of a “corporation” is what is at stake here, and that’s going to have to be defined socially and legally by a process that involves everyone. And if that really came up before Congress, possibly as an Amendment, every survey on the topic shows that a vast majority of Americans think the idea of corporate personhood is ridiculous.

But let’s go back to health care, the topic that opened this. If you believe in the free market, where people choose options based on trade-offs between cost and quality, the system we have now is far from your choice. Corporations should not foot the bill because, simply, they are not the ultimate consumer. If you believe that health care is a fundamental right, the system we have now is obviously broken in many ways. If there is one thing that everyone should agree on, left and right, it is that Hobby Lobby shouldn’t have to make these kinds of decisions.

Is it a market or not?  Pick one.  Please.

Is it a market or not? Pick one. Please.

If the implications of this decision send us into any minefield that’s worth straying into it’s revisiting just how we organize health care. That holds whether corporations really are people or not – but, for the record, women are (in case there was any confusion).

Where do we go after this decision? It’s hard to say. What logically should happen on many fronts is an intense public debate on the various issues and serious action taken by Congress. Imagining either of those happening requires something like a civic fairy tale.

In short, the ultimate message from the Supreme Court is this – it’s long past time for a serious revolution, one way or the other. If the system can’t handle it, the system as we know it has to be brought down. If it isn’t, the precedents are all there for even more ridiculous things to start happening, and soon.

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11 thoughts on “The Long Reach of Personhood

  1. What an excellent post. Thank you. Health insurance should not be the “responsibility” of employers. And employees should not have to worry about the religious beliefs of a potential employer before taking a job (for health insurance reasons, I mean).

    It is definitely time to divorce employers from health insurance. And didn’t Alito, in his majority opinion, suggest one way to get around this decision is single-payer health care for birth control? A possible silver lining?

    Does this pave the road for Obama to introduce single-payer health care after all? (I’m still confused as to why corporations were so against a single-payer plan in the first place. I thought they would love getting out of the health care business. Think of all the money they’d save.)

    Regardless, the key note of the majority decision is that corporations are more equal than women when it comes to personhood. And this is serious cause for concern.

    • I do hope that the need for single payer is what comes out of this. It could be a wonderful decision after all, no matter how bizarre its legal basis.

      But yes, corporations have more rights than women, I can’t see any other way to read this.

  2. It isn’t utterly ridiculous that businesses provide health insurance. It is just a benefit.

    The Supreme Court simply affirmed the lower court.

    Just because one disagrees with the ruling doesn’t mean that we shouldn’t accept it.
    Saying we need a revolution is just an attempt to be heroic. Mr. Erik Hare just wants to kick ass. What are your interior motivations?

    Pope Francis would like the Hobby Lobby decision. We need strong moral leadership.

    The Hobby Lobby provides more religious freedom. For now we should give assent to the Supreme Court. Since decisions are partly a political outcome, it can always be overturned through the appointment of future justices.

    Calm down. Every day is not a crisis.

    Opponets of the Hobby Lobby should just spell out who would be harmed by this decision.

    • I’ll reply in small pieces. It is ridiculous that companies are on the hook for health care for the reasons I stated – it is the worst of both worlds. It does not create a free market, with its benefits, nor does it create universal coverage. It is a hybrid system that guarantees the greatest expense possible with inadequate results. No other nation in the world has a system for this – and ours is by far the most expensive and least productive.

      Go ahead, defend this system. I’d love to hear someone try because I have tried to come up with one good reason why this is the way it should be done. I can’t.

    • Back in the 1970s and 1980s, it was common for conservatives to decry an “activist court” that “legislated from the bench”. This was essentially coded language for their displeasure over the central argument in Roe v Wade – that there is a right to privacy that needs to be balanced in the case of abortion with the state’s interest in protecting life.
      The right to privacy has deep roots in American culture and is derived from the 4th Amendment. It has a long legal tradition dating back to 1922. Polls have shown that most Americans believe there is, indeed, a “right to privacy”.

      This activist court has created the concept of “corporate personhood” more or less from whole cloth that they wove themselves. There is some precedent for it in a limited legal sense, but it was never implied by any previous decisions that constitutional rights applied. There is no mention of corporations or their rights in the Constitution at all.
      And, indeed, a vast majority of all Americans, of all parties, agree that corporations are not people.

      This decision is the result of an extreme, radical activist court that is legislating in ways that the Burger court would ever have dared. It is dangerous and needs to be overturned. If that can be done with a constitutional amendment, then let’s do that immediately. If we have to change over Congress first then let’s get going But this is purest bullshit and it should not be allowed to stand.

  3. What the court is balancing is the right of a person to follow Jesus vs. women’s rights.

    The Supreme Court in Hobby Lobby argued that in this respect a closely held corporation actually isn’t a person, and the government needs to respect not the corporation’s non-existent religious beliefs but the corporation’s owners’ religious beliefs.

    We have to remember that the SC didn’t create an absolute rights. American society has many power centers so each side can continue to press their case and be actively involved to change or conserve policy.

    Hobby Lobby is a ruling in favor of freedom of conscience and the failure that you have to make an affirmative case for a broader reading of women’s rights shows how weak your argument is.

    Hobby Lobby is not about corporate personhood. That policy is already established.

    • I am starting to think that this is an example of the old adage “Good cases make bad law.”

      The idea that corporations have some of the same rights as people is very old. They have long been able to sue to enforce contracts, et cetera. What this court created in Citizen’s United was the idea that Constitutional rights extend to corporations, which I considered dangerous. This ruling extends that, as shown in Alito’s comments in the majority opinion. Corporations now have a right to religious expression that has not been allowed before.

      I will agree that this ruling could have come down the same way without that. I have sympathy for Hobby Lobby and more specifically Conestoga Cabinets, which is a Mennonite company (I consider my sense of Christianity to be more closely aligned with my Mennonite ancestry and its traditions in my family than any other faith). Again, I think the most important issue here is the strange system where companies provide health care – and are now compelled to provide it.

      But the ruling was much more broad and, to my mind, did not balance equal protection concerns in any substantial way. Does equal protection apply to corporations as it does to government and its laws? Certainly, something like it has been set as precedent in any number of employment or services cases – corporations are public entities and not entirely private. I would have like to have had much more elaboration of that consideration, much as the competing rights and obligations were explicitly spelled out in Roe v Wade.

      Instead, we have a ruling that is very broad and quite absolute. Closely held corporations have a Constitutional right to religious liberty. I think this is very dangerous and opens the door to a wide variety of applications. If this applies only to health care, the rational for that should have been explained. Since that is missing, we have to assume that, like all fundamental rights, this must be applied broadly.

      I ask you – what if a company wants to enforce Sharia Law in its operation? I gave a very specific example, but let’s take that broadly. The implications are vast and very frightening.

      In short, the role of a corporation as a public entity has been changed, and apparently dramatically. I don’t think they had to go there to make this ruling, but they did. It’s huge, not well supported by precedent, and I think very, very dangerous.

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