Corporations Are People (When It's Convenient)

You are cordially invited to a very special Bar Mitzvah as Bogart, Cunix & Browning LLC becomes a man. Please join us at Temple Azrikim Hamochdim (Temple Citizens United) on Saturday, January 7, 2023. Services begin at 10 AM. The Torah will be removed from the Ark at 11. A Kiddush and Reception in the Romney Social Hall will follow the conclusion of services.

It was Mitt Romney who famously declared that corporations were people. He was derided for that comment. So many of us knew that corporations, especially closely held corporations, were artificial entities created by people for tax or liability purposes. Few of us ever imagined that this small stack of paperwork, $1,000 of attorney’s fees, would one day be considered to have the same rights and religious convictions of its creators.

And soon Bogart, Cunix & Browning LLC, our little BCB, will be a man.

The actual definition of corporation (click here) from Merriam Webster doesn’t speak of Bar Mitzvahs or Christenings. In the old days (pre-Citizens United January 2010) corporations were mainly entities created to help businesses function efficiently. Political spending by corporations in candidate elections had been prohibited. The immediate impact of the decision was the deluge of corporate sponsored attack ads over the last four years. The Hobby Lobby decision is simply the next step to dehumanize individuals while we anthropomorphize corporations.

In a 5-4 decision, the Supreme Court has decided that closely held corporations are capable of having sincere convictions and that providing all twenty forms of federally mandated contraception imposes a “substantial burden” on Hobby Lobby’s ability to exercise its religion.

I have included the link to the actual Supreme Court decision as well as to Amy Howe’s excellent analysis on ScotusBlog. As I have noted in previous posts, ScotusBlog is the first place to visit after any important Supreme Court decision if you want a plain English explanation.

Bad Law

Oliver Wendell Holmes, Jr. opined that great cases like hard cases make bad law. In its fight against a few forms of birth control, Hobby Lobby may give birth to numerous bad laws. Justice Kennedy wrote in a separate concurring opinion that this ruling was narrow and limited. Justice Ruth Bader Ginsburg is probably closer to the mark on this point. Why won’t every business owner with strong opposition to blood transfusions, same-sex marriage, or even women driving not seek to have their day in court? And how will the Supreme Court decide what is a “substantial burden” and what is not?

Even before the decision was read I had heard from clients interested in opting out of certain coverages. Some of this, as noted in Isn’t That Convenient (May 2012), is simply about employers looking to save a buck. But not all. Some business owners now see a way to express (PUSH?) their values through their business.

The first out of the gate may be businesses concerned about the Employment Non-Discrimination Act and whether it may force federal contractors to not discriminate against lesbians, gays, bisexuals and transgenders (LGBT). Will businesses owned and controlled by Christian Scientists eliminate coverage for blood transfusions? It is too early to say and there is nothing up on the Church’s official website.

It is important to remember that this is a fight that the Obama Administration wanted. Not once does the Patient Protection and Affordable Care Act (PPACA) mention an IUD. The law included 100% coverage for Preventive Care. It was Kathleen Sebelius, then the Secretary of Health and Human Services, who chose to define birth control pills, IUD’s, and the morning after pill as part of Preventive Care. Good decision? Bad decision? Either way it is important to note that it was a DELIBERATE DECISION. This, as is the case with so many of the sticking points of the PPACA, is a regulatory issue.

Hard Cases + One sided Regulations = Really Bad Law

Today the ruling applies simply to closely held corporations, but Ted Olson, the attorney who successfully argued the Citizens United case before the Supreme Court scoffs at the notion. And one day we will have corporations of any size and any religion. And these corporations will need the free exercise of their sincerely held beliefs.

Will future theologians debate whether a Christian corporation’s pathway to Heaven is through Grace or Works? And speaking of Heaven, if a Muslim corporation executes a successful hostile takeover, are there 72 shareholders waiting for it in Heaven?

I am positive of one thing. Should Hobby Lobby ever decide to convert to Judaism, there will a long line of people volunteering to perform the Bris.

DAVE

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