Hobby Lobby, the Supreme Court, and the Toxic Notion of Corporate Personhood

Do you remember back in 2008, when Sarah Palin was asked which Supreme Court decisions she didn’t agree with other than Roe v. Wade, and she couldn’t think of any? I remember it became sort of a game among some of us: as ordinary citizens who were not running for the second highest public office in the country, how many Supreme Court decisions could we think of that we didn’t agree with? I came up with about half a dozen right off the top of my head. Dred Scott, obviously. Plessy v. Ferguson. Bowers v. Hardwick. Bush v. Gore. (Chime in with your own in the comments!)

And — very importantly, so important that I would rank it as one of the most disastrous events in our country’s history, with profound and far-reaching toxic effects touching every aspect of everyone’s lives on a day-to-day basis — Santa Clara County v. Southern Pacific Railroad, in which the Court determined that corporations are legally people, with constitutional rights comparable to those of actual people.

the-corporation-book cover
It’s been pointed out, by many people before me, that if for-profit corporations really were human beings, they would be sociopaths. Their primary motivation is entirely self-serving — in fact, they’re legally required to prioritize maximizing profit over all other concerns. As Justice John Paul Stevens wrote in his Citizens United dissent, “Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” And it’s been pointed out, by many people before me, that corporate personhood tips the balance of power in the U.S. — since corporations have Constitutional rights that actual people have, and they have enormous amounts of wealth that most actual people don’t, they can effectively control the entire political process. Corporate personhood doesn’t just tip the balance of power. It plants a giant Godzilla foot on one side of the balance of power. It crushes the entire scale of justice. Again, to quote Justice Stevens’ Citizens United dissent: “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

And now, corporations don’t just have the right to donate as much money to political campaigns as they want to, thus entirely controlling the political process, because money equals free speech and corporations are people with the right to free speech.

They now have the right to religious freedom. With the Hobby Lobby decision, corporations don’t have to obey the law and cover birth control in their health insurance plans, if the corporation’s religious beliefs oppose it.

“The corporation’s religious beliefs.” Roll that phrase over in your head a few times.

Now, here’s the thing. An actual individual person’s right to religious freedom mostly just affects their own actions. They can wear a cross, avoid pork and shellfish, pray to Mecca five times a day. Their religious freedom doesn’t give them the right to control other people’s actions. The only exception I can think of is a parent’s rights to determine their children’s religious upbringing — and even that has limits in most states. It’s true that actual religious organizations, such as churches or synagogues or religious schools, have some rights to control what their employees and participants in their programs can do: they can hire and fire on the basis of religious ideology, demand that students adhere to a religious moral code, etc. But religious organizations have special limits and responsibilities. They can’t endorse political candidates, for one thing (not if they want to stay tax-exempt). And very importantly, they’re expected to have religion as their primary motivation — not the maximization of profit.

But a corporation’s “right” to religious freedom doesn’t only affect their own practices. A corporation’s “right” to religious freedom gives them the right to control, not only their own decisions, but the decisions of the people who work for them. The owners of Hobby Lobby now not only have the right to choose for themselves whether to use birth control — they have the right to make that decision for their employees. The Hobby Lobby decision essentially gives corporations the same rights as religious organizations — with none of the special limits or responsibilities.

You might argue that people don’t have to work for Hobby Lobby if they don’t like their policies. You might argue that Hobby Lobby employees can pay for their own birth control, separate from the health insurance provided by their employers. The problem with that is that we have a shitty economy, in which huge numbers of people are financially unstable and insecure at best. We have an antiquated health insurance system in which health care is tied, for absurd reasons rooted in obsolete historical quirks, to employment. We have a country in which “take this job and shove it” is, for huge numbers of people, simply not an option. And we have all this, again, largely because of laws and policies controlled by corporate money.

Lt. Angela Banks draws blood from a mannequin during training for antilogous blood transfusion
There are religions that permit, and even demand, discrimination on the basis of race. Can corporations now fire black employees, or refuse to serve black customers, if they claim that it’s part of their religion? There are religions that permit, and even demand, segregation by gender. Can corporations now fire women, or refuse to serve women customers, or demand that women employees and customers work and shop separately from men, if they claim that it’s part of their religion? Can corporations now fire employees, or refuse to serve customers, based on their religion — or lack thereof? As Justice Ruth Bader Ginsburg wrote in her dissent, “Would the exemption… extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]… Not much help there for the lower courts bound by today’s decision.”

Corporations in the United States have nearly unlimited power. And with today’s Hobby Lobby ruling, corporations now have the rights of individuals, and the rights of religious organizations, and the rights of… well, of corporations. Plus they have massive wealth. And because they control the political process, they have the power to keep expanding that power. (If you think the Supreme Court is beyond the reach of corporations — think about who appoints and approves them.) They have nearly unlimited power. They have the power to keep expanding that power. And they are required by law to maximize their self-interest over all other concerns.

Does that seem like a good idea?

There is a serious movement happening to amend the Constitution and overturn corporate personhood. Please support Move to Amend and Wolf PAC: sign their petitions, support the organizations, and spread the word. And obviously: Boycott Hobby Lobby.

Hobby Lobby, the Supreme Court, and the Toxic Notion of Corporate Personhood

16 thoughts on “Hobby Lobby, the Supreme Court, and the Toxic Notion of Corporate Personhood

  1. 1

    The whole corporate personhood is a complete bafflement to me. A corporation is a tool. Any ‘speech’ it produces comes from the people in the corporation. Seen that way a corporation is nothing more or less than a very elaborate bullhorn for the people in charge of the corporation. And they should not be able to negate the rights of the people not in charge of the corporation as was done in the hobby lobby case.

  2. 2

    One Supreme Court decision that a whole lot of people and I think was wrong is Kelo v City of New London 545 U.S. 469 (2005). This was the decision that private entities could use public domain for economic development.

    The pharmaceutical company Pfizer had a research campus in the Fort Trumbull area of New London, CT. A private organization, the New London Development Agency, wanted New London to condemn some private property adjacent to the Pfizer campus as part of a “comprehensive redevelopment plan.” The home owners whose houses had been seized through public domain sued the city for violating the Fifth Amendment by overreaching their public domain authority.

    A 5-4 Supreme Court decision found that New London could use public domain to increase its tax revenues and attract a wealthier population in place of the lower middle class home owners in the redevelopment project area.

    Just to add insult to injury, the developer was unable to obtain financing and the redevelopment project was abandoned. The houses in the Fort Trumbull area had all been demolished and the area is now an overgrown vacant lot. Also Pfizer closed its New London facility in 2010 with a loss of over a thousand jobs. That coincided with the expiration of tax breaks which would have increased Pfizer’s property tax by almost 400%.

  3. 3

    “You might argue that people don’t have to work for Hobby Lobby if they don’t like their policies.”

    The flip-side of this arrangement is never, EVER brought up:

    If you don’t want to comply with government regulations on your company, you don’t have to operate a company. Nobody is *forcing* Bob Hoblob to operate a christian-themed arts ‘n’ crafts store; nobody is forcing him to own or operate any kind of company at all. If he doesn’t want to pay for insurance that provides contraceptives to his employees, then the simplest solution would be for him to quit his job and stop having employees.

  4. 4

    I remember being taught in grade school- I want to say 7th or 8th grade- that corporate personhood was simply a legal fiction allowing a corporation to act as one body- that it was not a reality that came along with the rights of natural persons.

    I wish that was actually the case.

  5. 5

    with this, we have the move back to “company towns” where business controls the worker in everything.

    it does amusing me a bit in that the conservative justices have made it okay to use sharia law, something teabaggers were sure that Obama was going to do.

  6. 6

    Is it time to start a “secular directory”?

    We should start identifying U.S. companies, large and (especially) small, that do not claim any religious identification or affiliation. Such a directory could work like the Green Books published for African-American motorists during the Jim Crow era. I want my secular money to go to secular companies.

    The flip side is to start documenting those companies that do claim a religious affiliation, with details about what denomination and/or non-denominational church movement they belong to. Let’s start writing their lawyers and publishing the replies.

  7. 7

    And I was intending to cut down on my drinking this week…

    I’ve just finished Octavia Butler’s Parable of the Talents, and I can kinda see how our society is headed that way (also quite similar to Margaret Atwood’s The Handmaid’s Tale).

    Also wondering why the court didn’t tell Hobby Lobby they were free to just decline offering health coverage, and pay the associated fines/penalties (not that that would be any better for the employees…).

  8. 8

    Chortling over the advance of marriage equality, and the apparent acceptance thereof by ever larger numbers of Americans, is wildly premature.

    Reproductive rights are under attack (often successfully) ALL OVER. As Greta has pointed out, atheist organizations have a fine track record around gay rights. In the last few years, a contrasting pallid and indecisive support for WOMEN’S rights seems to have been allowed to flourish.

    Health care is under concerted attack. Partly just knee-jerk teaparty opposition to anything attempted by the federal government when a non-Confederate president is in office. But also the growing centralization of hospital ownership etc. In particular, CATHOLIC ownership. We are on our way to repeating the Savita Halappanavar outrage in the U.S.

    It really is pitchforks and torches time with some of the shit going down in our country.

  9. 9

    Point of information: the ruling itself in Santa Clara County v. Southern Pacific Railroad did NOT establish the doctrine of corporate personhood. That comes from a headnote added by a clerk to the opinion, an editorial summary of what the section is about. While Chief Justice Morrison Waite noted that it accurately reflected the sentiment of the justices, the fact is that this sentiment exists only in editorial notes and not in the ruling itself. At best, it is ipse dixit, an on-the-record statement made by a judge about why a decision was reached that has no bearing on a judicial ruling.

    The problem was, it was an awfully convenient statement, and it allowed the Supreme Court to use this accidental fiction in Connecticut General Life Insurance Company v. Johnson in 1938, and then in later cases, creating precedent out of thin air.

    In short, the whole American doctrine of corporate personhood comes from a clerk’s annotation of a Supreme Court ruling, and not from any actual ruling.

  10. 11

    That “Move to Amend” thing proposes two amendments to the constitution. The first is:

    The rights protected by the Constitution of the United States are the rights of natural persons only.

    Artificial entities established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.

    The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.

    That’s great, but it wouldn’t affect this decision, which did not, despite what all the commentary says, rely on the notion of corporations as persons. Neither did Citizens United or any of the other decisions chipping away at campaign finance reform on free speech grounds.

    The second proposal is:

    Federal, State, and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, to ensure that all citizens, regardless of their economic status, have access to the political process, and that no person gains, as a result of their money, substantially more access or ability to influence in any way the election of any candidate for public office or any ballot measure.

    Federal, State, and local government shall require that any permissible contributions and expenditures be publicly disclosed.

    The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.

    The language here is way over-broad, and could reasonably be construed as a spending cap on individual and group political advocacy. I’m basically a free speech fundamentalist, so I have to say HELL NO.

    So, to sum up, we have one meaningless proposal, and one with spooky implications for freedom of speech. Sorry, but I’ll have to withhold my support.

  11. 14

    I agree that corporate personhood should be eliminated and that the Hobby Lobby decision was a farce (only health care that relates to women and sex could be excluded, really?), but there is one thing that should be mentioned. The ruling said that only closely-held corporations could be exempted. This excludes all public corporations and some privately held ones.

  12. 15


    It did say that, while also saying that (paraphrase) “no conceivable definition of ‘person’ could include non-profit corporations but not include for-profit corporations.” In other words, the majority didn’t see a difference. In fact, what they did say was not that the ruling couldn’t be applied to non-closely-held corporations, but simply that it probably wouldn’t happen because it would be impractical. They didn’t actually decide on that point.

    The ruling also asserted quite a few things, like that the ruling only pertained to contraception in this particular case, but failed to justify that assertion. After all, how do you judge religious exception to abortion as worthy of exemption, but other exceptions as not worthy?

    Also, closely-held corporations account for around 90% of corporations and around 51% of private employement. Even if the ruling truly was limited to closely-held corporations, it still applies pretty broadly.

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