(image by Lucas O'Connor) DMCA
The Supreme Court's announcement that it will rule on whether secular corporations can deny health insurance coverage of birth control for its female employees got proper attention from Joan McCarter here and Adam B here Tuesday. Anyone who isn't worried about how the Court may rule hasn't been paying attention.
One of my favorite writers for decades has been Harold Meyerson.
the bullseye on the birth control cases with his
Individual believers and non-believers draw their own lines on all kinds of moral issues every day. That's human nature. They are free to say that their lines adhere to or are close to specific religious doctrines. But to extend the exemptions that churches receive to secular, for-profit corporations that claim to be following religious doctrine, but may in fact be nipping it here and tucking it there, would open the door to a range of idiosyncratic management practices inflicted on employees. For that matter, some religions have doctrines that, followed faithfully, could result in bizarre and discriminatory management practices.
The Supreme Court has not frequently ruled that religious belief creates an exemption from following the law. On the contrary, in a 1990 majority opinion, Justice Antonin Scalia wrote that Native Americans fired for smoking peyote as part of a religious ceremony had no right to reinstatement. It "would be courting anarchy," Scalia wrote in Employment Division v. Smith, to allow them to violate the law just because they were "religious objectors" to it. "An individual's religious beliefs," he continued, cannot "excuse him from compliance with an otherwise valid law."
It will be interesting to see whether Scalia still believes that now that he's being confronted with a case where the religious beliefs in question may be closer to his own.
The other issue all this raises: Where does this corporations-are-people business start and stop? Under the law, corporations and humans have long had different standards of responsibility. If corporations are treated as people, so that they are free to spend money in election campaigns and to invoke their religious beliefs to deny a kind of health coverage to their workers, are they to be treated as people in other regards? Corporations are legal entities whose owners are not personally liable for the company's debts, whereas actual people are liable for their own. Both people and corporations can discharge their debts through bankruptcy, but there are several kinds of bankruptcy, and the conditions placed on people are generally far more onerous than those placed on corporations. If corporations are people, why aren't they subject to the same bankruptcy laws that people are? Why aren't the owners liable for corporate debts as people are for their own?
Scalia, of course, does not let consistency get in the way of his ideology, so his vote on the birth control cases is hardly predictable.
As Meyerson (and so many of the rest of us) says, corporations are obviously not people. Unfortunately, the corporadoes and their marionettes in government and media have managed to mangle the law partway into a contrary perspective that is doing and poised to do grave damage to us flesh-and-blood people. That perversion of legal sanity needs to be crushed. By statute or constitutional amendment if that is what it takes.
Meanwhile, however, if corporations are going to be viewed as people in the rights department, then let them be people elsewise, too. No special protections, for example, from the death penalty. When their crimes warrant such punishment the way an actual individual's would, end their existence by tearing up their charter and turning them into non-entities.