Hobby Lobby was a RFRA case, so I’m puzzled below by the references below to the First Amendment (point 1) and a “constitutionally protected right” (point 6).
David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: "Daniel J. Greenwood" <daniel.greenw...@hofstra.edu<mailto:daniel.greenw...@hofstra.edu>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Tuesday, July 1, 2014 at 1:40 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: RE: Hobby Lobby Question 1. Rhetorically, it was probably overdetermined that the Court grant the rights to the corporation and not its “owners”. By claiming that it was protecting the corporation, the Court avoided the curious problem of why the FA should protect a particular, and peculiarly absolutist, view of corporate governance – “an economic theory which a large part of the country does not entertain.” 2. Non-profits clearly don’t have owners. Neither (less clearly) do for-profit corporations, at least where they have more than one shareholder: no one has the most basic right of ownership, the right to waste. Neither does Hobby Lobby, if I understand correctly: its sole shareholder is a trust and the trustees are barred from exercising independent judgment on a number of important issues. 3. Accordingly, had the Court based its new right in the rights of the “owners” it would have been forced to make a clear and decisive distinction between closely-held, shareholder-controlled corporations – the only form of corporation that has owners in anything resembling the ordinary sense of ownership (and even then, only if you take corporate law procedure to override its substance) –and all other corporations. That, of course, would make the Court’s reliance on the Dictionary Act silly. 4. Moreover, had it given the right to the “owners”, it would have to confront the problem that we no longer allow ownership of employees. Whatever the “owners” own (the Greens, apparently, own nothing at all, but are instead the beneficiaries of a trust that owns Hobby Lobby’s shares), they do not own the bodies or the medical care or the contract rights of the firm’s employees. The issue here is the relative power of different claimants to speak for the corporation under the rules of corporate governance: whether employees, managers, shareholders or the People get to decide the terms on which corporate medical insurance is written. 5. Who determines the corporate position on controversial issues ought to be an issue of corporate law, contract law and the ACA, perhaps even Federalism. It has next to nothing to do with religious freedom, except to the extent that general principles (not our law) suggest allowing different individuals to follow their conscience with a minimum of interference from other individuals or power structures. 6. The Greens have won the right to impose their religious views on the corporation and its unwilling participants despite the ACA’s rule that they must share this corporate decisionmaking role with their employees. The ACA decentralized the corporate decision about contraceptives, allowing each corporate participant to follow her or his own conscience. The Court holds, instead, that contraceptive decisions may be made instead by directors or shareholders or trust beneficiaries of the shareholder(it’s not entirely clear which role now has a constitutionally protected right to override ordinary corporate law and impose its views on the other corporate participants) and imposed on corporate employees and customers. Those people are put to the “difficult choice” of giving up the benefits of corporate form or accepting the fiat of the newly empowered corporate elite. The issue resolved here is not state vs citizen or majority religion vs minority religion but rather the internal decisionmaking structure of the firm. 7. Following an ancient tradition, the Court claims that granting rights to the organization protects the “people (including shareholders, officers, and employees) who are associated with [it]”. In US constitutional law, this argument goes back at least to Letson, the first corporation-and-the-Constitution case. Repetition and age, however, have not made the argument sound. The claim, as should be clear to anyone familiar with the social contract tradition, is false. Protecting the organization protects the incumbent officeholders against upstarts and dissidents who might want to share the decisionmaking power or disagree with the decisions officeholders seek to impose on them. Thus, minority and democratic rights in international and constitutional law begin by reducing the protection the “state” has (inherited royal prerogative, established church, sovereign immunity, comity, etc). To bring basic civil rights to Americans living in the former slave states, the first step had to be to limit, not enhance, states’ rights; the same was true to protect subjects from their dictatorial governments. To allow married women control of their property or abolish husbands’ spousal rape privileges, it was essential to violate, not protect, the privacy and autonomy of the family. Protecting the “privacy” of the corporation prevents employees and customers and shareholders from learning what managers are doing, let alone influencing it – that is the opposite of protecting them. To protect non-officeholders, we always limit the rights of the office -- and they always complain that carpetbaggers are interfering with the rights of the institution. Protecting the corporation’s religious rights can only mean protecting the rights of its incumbent decisionmakers to use their power to impose their religious views on other participants. This is substantively if not technically “establishment,” not “free exercise.” If the goal were to protect the religious freedom of corporate participants other than the board of directors and those who vote for them, we’d have to restrict the corporation’s freedom of action, much as we do in civil rights law, labor law, contract law, consumer protection, environmental and safety law, human rights law, etc. DG
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