Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.


Principled Personhood


Chelsea Langston

07-21-2014


By Chelsea Langston

July 21, 2014 

Personhood.  It is a word that evokes strong feelings about when life begins, who decides what constitutes personhood, and what the legal ramifications around personhood are. Personhood also inevitably brings up words like “dignity” and “individuals,” but often distances itself in the public conscience from “organizations.”

Last month, the Supreme Court ruled that closely held corporations (such as companies owned by families) embody another element of personhood that is often overlooked. The court recognized that these family-owned businesses are, at their foundation, groups of individuals who have come together around a common goal. Sometimes, as in the case of the Green family, a family business is run by individuals of a certain faith, and that faith shapes and influences foundational aspects of their business. 

At a religious freedom forum in Minnesota last October, I heard Hobby Lobby’s General Counsel and a son-in-law in the “family business” speak. In the thirty or forty minutes they were allotted, they told the story of a small, family-run craft operation that began in the Green family home several decades ago. They spoke of how their faith compelled them to make tough choices over the years, regardless of any potential profit or loss. They talked about their decision to close on Sundays to honor a day of rest for employees, they spoke of their company commitment to giving much more to various charities than is industry standard, and they explained that their faith requires them to have fair and equitable salaries for all employees, family members and non-family members alike. 

Yes, Hobby Lobby is a business. But it is a family-owned organization comprised of individuals driven by faith to act in accordance to their conscience. Faith penetrates every aspect of how companies like this do business.

No, Hobby Lobby is not a person. It is a group of craft/hobby stores owned by a family who objects, on religious grounds, to parts of the Affordable Care Act’s contraception requirements. A majority of the Supreme Court justices ruled that a business such as Hobby Lobby, one that is not publically traded, does have religious rights. These rights, however, are not applied to publically held corporations.

Although this ruling created a lot of public backlash from women’s rights advocates, it didn’t come as a big surprise for many. In 2010, the Supreme Court found in the Citizens United case that corporations have free speech rights (a right usually understood as belonging to an individual person). The court ruled in this campaign finance case that a prohibition on a company’s political spending was a violation of the corporations’ free speech rights. So while a business is not a person, the Supreme Court of late has recognized that corporations do have some (albeit limited) rights usually associated with individuals.

The Supreme Court also considered the Religious Freedom Restoration Act’s requirement that the federal government must assure that any federal law uses the “least restrictive means” necessary to fulfill its purpose if the statute may “substantially burden” someone’s religious freedom. In this case, the Affordable Care Act’s purpose is to make sure female employees have free access to birth control. The majority opinion found that there are less restrictive ways of achieving the ACA’s aim of no-cost birth control than burdening a family business whose owner is religiously opposed to providing such coverage. 

Critics of this decision have envisioned scenarios where religious employers have a wide brush to paint exemptions left and right. But the court pointed out that an employer could not use religion to get protection from laws that ban discrimination, for example on the basis of race. As Lauren Markoe and Cathy Lynn Grossman point out in a Religion News Service article, “The Hobby Lobby decision might embolden religious employers to object to laws they consider burdensome. But that doesn’t mean they would always win. The court made clear in this ruling that religion should not always trump the law and said its decision applies to the contraception mandate, not other insurance mandates.”

So, personhood. Just as there is debate around when life starts and when an embryo should receive the rights of a person, there are diverse opinions and interpretations in the public square (and on the Supreme Court) on how and if the rights traditionally accorded to individual persons should be given to corporations. In this case, the Court recognized that in a diverse society with competing viewpoints, as Jim Skillen would say, “government must do justice to society’s nongovernmental organizations and institutions as a matter of principle.” This is principled pluralism played out and acted upon. Whether or not you agree with the Green family’s religious convictions about birth control, this should be a decision that all Americans can appreciate as a moderated stance for organizational religious freedom in a pluralistic public square.

- Chelsea Langston is an attorney who works for a nonprofit association in Maryland. She is also a Fellow with the Center for Public Justice.



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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”