Chief Justice John Marshall With March Madness in full gear, I wonder how many Americans have been paying attention to the efforts by some to give corporations First Amendment rights to practice religious beliefs. I mean, it is a well settled unwritten rule that if any Constitutional argument conflicts with another Constitutional provision, the First Amendment will always prevail. In the case of Sebelius v. Hobby Lobby, (13-354), the issue of whether a corporation can be excluded from any government mandate solely on the basis of some form of protected religious ideology is up for debate. In the Hobby Lobby case, a family owned privately held business seeks to be exempted from provisions of the Affordable Care Act ("ACA") requiring them to provide health insurance coverage for employees that includes all forms of birth control.
Seemingly cut and dried, matters like these that have been brought before the Supreme Court in recent years have certainly been in reality, far from simple. You see, the Supreme Court has ignored its majority's belief in judicial restraint and instead become eagerly engaged in activism. Through their recent decisions, the Conservative majority on the High Court have actively sought to make law through their decisions, regardless of how some on the Far Right publicly clamor for a restrained Court. Like anything political these days, the hypocrisy of our times has become a steady component even with the High Court. As a student of American History and our Constitution, I know we have seen Court attitudes shift from time to time, but this Court seems to have an agenda carved not in law, but in ideology.
In the Hobby Lobby case, litigants are arguing that the government cannot compel a corporation to act against its religious beliefs. Really! But, when did For-Profit corporations begin to possess protected religious beliefs? As a young law student, I learned that corporations do exist, not by birth, but by a legal fiat created by filing appropriate documents and fees. Corporations may be created with specific goals and with private or public ownership. They may also be restructured, either in organization and/or financially, including rehabilitation or liquidation through bankruptcy. They may also wrap up their business affairs and liabilities and be terminated by again, filing appropriate documents and fees. So when did such "legal entities" begin to believe they too have religious rights granted to (living and breathing) citizens under the First Amendment? Since when did "We the People" in the preamble of the Constitution really mean " We the People and their Partnerships, Limited Liability Companies, Corporations, and Joint Ventures" too?
According to the Briefs filed by Hobby Lobby, they argue "The Religious Freedom Restoration Act protects Respondents’ religious exercise. RFRA covers any “person’s exercise of religion,” 42 U.S.C. § 2000bb-1(a), but it does not separately define “person.” The Dictionary Act thus supplies the meaning of the term, which is specifically designed to include both natural persons (like the Greens) and corporations (like Hobby
Lobby...)....The contraceptive mandate substantially burdens Respondents’ exercise of religion. Respondents’ faith prohibits them from facilitating abortion, and specifically from providing health coverage for the four
mandated drugs and devices that can end life after conception." Sounds fairly straight forward right? Except the briefs claim that there is no compelling interest for the government to accept contraceptives as a way to level gender inequality, somehow arguing the "cost to keep an embryo from full birth" is really not unduly burdensome on women? Their argument falls simply to the notion that the "owners" of the corporation's religious beliefs will be violated by providing contraceptive insurance coverage to its approximately 18,000 employees. So in their mind, the owners of Hobby Lobby, by extension, maintain their corporate right to exert personal religious beliefs, thereby, entitling it to supersede the religious beliefs of their employees. They maintain that despite the religious beliefs of their employees, the employer corporation's religious beliefs are superior. Since when does anyone think the First Amendment was ever intended to give superior rights to one group over another?
Under the First Amendment, what lines were the Framers willing to draw when it came to religious beliefs? Somehow, the current Supreme Court, despite the majority's proclaimed belief of adherence to the Framer's Original Intent, have deviated and may be willing to deviate further (while diluting our collective rights as human citizens). Has such deviation really been in step with today's society or are they interjecting their own ideologies in contravention to strict compliance with the First Amendment? According to the Court's own docket, the following entities have filed Amicus Briefs in support of Hobby Lobby - National Religious Broadcasters, Drury Development Corp. (I wonder what exemptions they seek?), National Association of Evangelicals, American Freedom Law Center, Life, Liberty and Law Foundation, U.S. Conference of Catholic Bishops, Cato Institute, Family Research Council, Liberty Institute, Liberty University, Catholic Medical Association, Christian Booksellers Association...and so on and so on.
Who has filed in behalf of the government? U.S. Women's Chamber of Commerce, American Jewish Committee, National Women's Law Center, American College of Obstetricians and Gynecologists, Corporate and Criminal Law Professors, National League of Cities, Ovarian Cancer National Alliance, Brennan Center for Justice at NYU Law School, Jewish Social Policy Action Center, National Health Law Program, an so on and so on. Who are these people and why are they interested enough to file Briefs in this matter? For a complete list, see http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/).
In the event corporations obtain full First Amendment rights to practice religious beliefs, they now will have super-Constitutional rights with protections that exceed human citizens of the United States. Huh? Think about it. A corporation has limits on its liability, because they are "legal entities". They do not go to jail for criminal wrongdoings, they simply pay fines. They are free to produce faulty products and have their liabilities limited to monetary damages (which can be curtailed further under the guise of "tort reform."). They can dump chemicals into waterways and lakes, and then simply when caught, liquidate through bankruptcy in order for their owners to start again with a new "legal entity." American citizens on the other hand, face no such limitations on civil and criminal liabilities. "We The People", go to jail for wrongdoing. "We The People" cannot simply "liquidate" ourselves only to be "reborn" into a new "entity" and continue to operate as if we were never liable or guilty for our transgressions. If Corporations are given religious freedoms, I submit, will therefore, have Super Rights under the Constitution that "We The People" do not equally enjoy.
Haven't we already had plenty of warnings from our American forefathers about the dangers of allowing Corporations to have rights equal to actual people? As Chief Justice John Marshall wrote in his Dartmouth College v. Woodward decision in 1819, "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence." If religious freedoms come from our Creator, then when did Corporations deserve First Amendment protections? I mean, as a corporate attorney, I have been the "creator" of many a corporation, giving them life and death. Certainly not exactly what the Framers intended when they wrote, "We The People..." Have a great week!
Seemingly cut and dried, matters like these that have been brought before the Supreme Court in recent years have certainly been in reality, far from simple. You see, the Supreme Court has ignored its majority's belief in judicial restraint and instead become eagerly engaged in activism. Through their recent decisions, the Conservative majority on the High Court have actively sought to make law through their decisions, regardless of how some on the Far Right publicly clamor for a restrained Court. Like anything political these days, the hypocrisy of our times has become a steady component even with the High Court. As a student of American History and our Constitution, I know we have seen Court attitudes shift from time to time, but this Court seems to have an agenda carved not in law, but in ideology.
In the Hobby Lobby case, litigants are arguing that the government cannot compel a corporation to act against its religious beliefs. Really! But, when did For-Profit corporations begin to possess protected religious beliefs? As a young law student, I learned that corporations do exist, not by birth, but by a legal fiat created by filing appropriate documents and fees. Corporations may be created with specific goals and with private or public ownership. They may also be restructured, either in organization and/or financially, including rehabilitation or liquidation through bankruptcy. They may also wrap up their business affairs and liabilities and be terminated by again, filing appropriate documents and fees. So when did such "legal entities" begin to believe they too have religious rights granted to (living and breathing) citizens under the First Amendment? Since when did "We the People" in the preamble of the Constitution really mean " We the People and their Partnerships, Limited Liability Companies, Corporations, and Joint Ventures" too?
According to the Briefs filed by Hobby Lobby, they argue "The Religious Freedom Restoration Act protects Respondents’ religious exercise. RFRA covers any “person’s exercise of religion,” 42 U.S.C. § 2000bb-1(a), but it does not separately define “person.” The Dictionary Act thus supplies the meaning of the term, which is specifically designed to include both natural persons (like the Greens) and corporations (like Hobby
Lobby...)....The contraceptive mandate substantially burdens Respondents’ exercise of religion. Respondents’ faith prohibits them from facilitating abortion, and specifically from providing health coverage for the four
mandated drugs and devices that can end life after conception." Sounds fairly straight forward right? Except the briefs claim that there is no compelling interest for the government to accept contraceptives as a way to level gender inequality, somehow arguing the "cost to keep an embryo from full birth" is really not unduly burdensome on women? Their argument falls simply to the notion that the "owners" of the corporation's religious beliefs will be violated by providing contraceptive insurance coverage to its approximately 18,000 employees. So in their mind, the owners of Hobby Lobby, by extension, maintain their corporate right to exert personal religious beliefs, thereby, entitling it to supersede the religious beliefs of their employees. They maintain that despite the religious beliefs of their employees, the employer corporation's religious beliefs are superior. Since when does anyone think the First Amendment was ever intended to give superior rights to one group over another?
Under the First Amendment, what lines were the Framers willing to draw when it came to religious beliefs? Somehow, the current Supreme Court, despite the majority's proclaimed belief of adherence to the Framer's Original Intent, have deviated and may be willing to deviate further (while diluting our collective rights as human citizens). Has such deviation really been in step with today's society or are they interjecting their own ideologies in contravention to strict compliance with the First Amendment? According to the Court's own docket, the following entities have filed Amicus Briefs in support of Hobby Lobby - National Religious Broadcasters, Drury Development Corp. (I wonder what exemptions they seek?), National Association of Evangelicals, American Freedom Law Center, Life, Liberty and Law Foundation, U.S. Conference of Catholic Bishops, Cato Institute, Family Research Council, Liberty Institute, Liberty University, Catholic Medical Association, Christian Booksellers Association...and so on and so on.
Who has filed in behalf of the government? U.S. Women's Chamber of Commerce, American Jewish Committee, National Women's Law Center, American College of Obstetricians and Gynecologists, Corporate and Criminal Law Professors, National League of Cities, Ovarian Cancer National Alliance, Brennan Center for Justice at NYU Law School, Jewish Social Policy Action Center, National Health Law Program, an so on and so on. Who are these people and why are they interested enough to file Briefs in this matter? For a complete list, see http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/).
In the event corporations obtain full First Amendment rights to practice religious beliefs, they now will have super-Constitutional rights with protections that exceed human citizens of the United States. Huh? Think about it. A corporation has limits on its liability, because they are "legal entities". They do not go to jail for criminal wrongdoings, they simply pay fines. They are free to produce faulty products and have their liabilities limited to monetary damages (which can be curtailed further under the guise of "tort reform."). They can dump chemicals into waterways and lakes, and then simply when caught, liquidate through bankruptcy in order for their owners to start again with a new "legal entity." American citizens on the other hand, face no such limitations on civil and criminal liabilities. "We The People", go to jail for wrongdoing. "We The People" cannot simply "liquidate" ourselves only to be "reborn" into a new "entity" and continue to operate as if we were never liable or guilty for our transgressions. If Corporations are given religious freedoms, I submit, will therefore, have Super Rights under the Constitution that "We The People" do not equally enjoy.
Haven't we already had plenty of warnings from our American forefathers about the dangers of allowing Corporations to have rights equal to actual people? As Chief Justice John Marshall wrote in his Dartmouth College v. Woodward decision in 1819, "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence." If religious freedoms come from our Creator, then when did Corporations deserve First Amendment protections? I mean, as a corporate attorney, I have been the "creator" of many a corporation, giving them life and death. Certainly not exactly what the Framers intended when they wrote, "We The People..." Have a great week!
RSS Feed
