Hobby Lobby and Corporate Personhood
What the Supreme Court got right and what it got wrong
What the Supreme Court got right:
We have the Right to Religious Freedom, and Religious Belief. We have the Right to promote our Values when they do no harm to others. If you object to Contraception, please let the world know, and more power to you. Seek out others who share your beliefs, because we enjoy a Constitutionally protected Freedom of Association. It is both an individual right and a collective right, guaranteed by all modern, democratic legal systems. It is guaranteed in our Bill of Rights. It is also guaranteed in article 11 of the European Convention on Human Rights, the Canadian Charter of Rights and Freedoms, and international law, including articles 20 and 23 of the Universal Declaration of Human Rights, as well as The Declaration on Fundamental Principles and Rights at Work by the International Labor Organization.
Freedom of association encompasses both an individual’s right to join or leave groups voluntarily, and the right of the group to take collective action to pursue the interests of its members. Freedom of Association, The Essentials of Human Rights (see footnote 1) describes the right as coming together with other individuals to collectively express, promote, pursue and/or defend common interests.
There are over a million and a half non-profit organizations (NPOs) in the United States (see Footnote 2). Some NPOs that are particularly well known are: Amnesty International, Rotary International, Kiwanis International, the Carnegie Corporation, Goodwill Industries, United Way, Acorn (now defunct), Habitat for Humanity, Teach for America, and the Red Cross.
A wise thing to do, and something that is often done, is for non-profit organizations to incorporate for the legal protection of its individual members.
What the Supreme Court got wrong:
Corporations are Associations, but they are not associations of likeminded individuals. They are Associations based solely on the aims and objectives stated in the Corporate Charter.
The basis for allowing corporations to claim Corporate Personhood protections under the U.S. Constitution is that they are organizations of people, and the people should not be deprived of their constitutional rights when they act collectively.
Supreme Court rulings, either supporting or undermining the concept of Corporate Personhood date back to 1886. In a narrow 5/4 decision, Burwell v. Hobby Lobby Stores, Inc., the Court asserted that freedom of religion exempted Hobby Lobby from aspects of the Patient Protection and Affordable Care Act. We might sympathize with the owners of Hobby Lobby, but if we read their corporate charter, we will find no mention of a religious interest.
The owners of Hobby Lobby have every right to individual express and promote their religious beliefs, but they should not be allowed to claim them as Corporate policy. They are the owners of that corporation, but the corporation is not a direct extension of them.
Corporations are not people. Corporations enjoy some of the rights that people do, such as the right to enter into legally binding contracts; but they do not, and should not, enjoy all the rights of an individual. When the Supreme Court rules in favor of Corporations acting as an individual in the public realm, it is creating a kind of super powerful entity that has not previously existed. Furthermore, these super personas often infringe on the individual rights of the members of that corporation who have no say in Corporate political activity and who may disagree with those actions.
Corporations must be allowed to enter into legally binding contracts just as individuals have this right, but they must not be allowed to function beyond the scope of the Corporate charter that defines them.
Suppose there is a non-profit Corporation that is chartered to protect and promote the right to chop down cherry trees. Fine and good! However, if the Corporate board decides to donate a billion dollars to Candidate X because he or she likes to chop down cherry trees, then the Corporation is clearly functioning beyond the scope of its charter. The Corporate Board would be assuming the initiative for the members and employees of the Corporation, including those who would disagree with their decision. Those Corporations would be moving beyond an individual’s right to protect and promote his or her interests. They would be trespassing into the Legislative realm by attempting to influence political policy.
- Jeremy McBride, Freedom of Association, The Essentials of Human Rights, Hodder Arnold, London, 2005, p. 18
- Frumkin, Peter (2005). On Being Nonprofit: A Conceptual Primer. Harvard University Press.