The Supreme Court ended its term Monday with a predictable opinion in the Hobby Lobby case. The privately-held, family corporation objected to being forced to offer health plans that included some forms of birth control.
The owners argued this was against their religious scruples. The other side suggested owners are free to scruple to their hearts content, but a corporation can’t adhere to a religion so must obey laws affecting such legal entities.
However, this is a Court that has already promulgated an implausibly expansive view of corporate “personhood” in Citizens United granting businesses the right to influence elections through huge donations since they are entitled to First Amendment free speech protection.
It is no surprise the Court now finds they are entitled to religious freedom, morality and consciences too. This could be a blessing in disguise if it also means corporations will be deemed capable of sin, damnation and hellfire. But that is absurd, as absurd as granting them corporate rights to speech and religion. Indeed this is the sort of legal folderol in defiance of commonsense that makes the average Joe conclude” the law is a ass — a idiot.” It also explains how the once-revered Supreme Court is now approved by a scant 30 percent of the people, real people not corporate persons.
Corporate personhood has a long history, but until recently has always been seen as a limited personhood, an economic convenience, a legal fiction. Corporations were given certain legal rights previously granted only to what the law now is forced to call “natural persons” and the rest of us call human beings, people, flesh and blood blokes.
Thanks to this device businesses could enter into contracts, borrow money, go bankrupt just like us. And the owners, managers and shareholders could limit their liability. When the corporation caused harms or couldn’t pay its debts, it could be held liable but the humans involved could not. Neat dodge, right?
The first big extension of this limited definition of personhood came in the last years of the 19th century when corporate power had grown enormously and people were being turned into its powerless tools. The pliant Court then found that 14th Amendment rights to equal protection applied to businesses, not just to people. Now in this new Robber Baron era, the Republican Court has twice expanded corporate personhood to encompass First Amendment rights previously thought confined to people.
In the Holy Lobby case (oh pardon me, Hobby Lobby) , Justice Kennedy, in a separate concurring opinion, seemed to realize this looked crazy and might cause alarm on the part of real people at the mercy of corporations. He went out of his way to say the ruling wasn’t as bad as it looked and was limited and would stay that way as long as he was on the Court. Of course he is fast approaching 80 so that isn’t all that reassuring.
In dissent, Justice Ginsburg was anything but sanguine. She suggested that if the religion of corporate owners could rule out birth control, what about religious owners who don’t believe in vaccinations, blood transfusions, or medical treatment at all?
It also looked rather bad that the opinion was authored not just by five Republican appointees, the party of corporate power, but by five old, conservative, male Catholics, a church that opposes birth control and empowering women.
For years Republicans railed against courts making law instead of interpreting it. When Chief Justice Roberts was being vetted by the Senate Judiciary Committee he went out of his way to say he certainly wouldn’t allow the court to find new rights or make new law. It would be his job as judge simply to call balls and strikes. Yet on his watch the Court has systematically begun to change the strike zone, redraw the base paths and has now begun to put the umpires in to pitch and bat. It’s a whole new ballgame.
In one of Shakespeare’s greatest speeches, he has the discriminated against Jew, Shylock, ask his tormentors why he should be treated differently: “If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die?”
To which we might now add a question to our corporate overlords who do not bleed, laugh or die, “If the rights of corporate persons trump those of natural persons, shall we not revenge?”