The Kosher Butcher Who Was Not a Person Until He Incorporated Himself*

Religious liberty, [Tenth Circuit Court of Appeals] Judge Tymkovich wrote, cannot turn on whether money changes hands. “Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?” he asked.

— Court Confronts Religious Rights of Corporations, Adam Liptak, New York Times, today

Why, yes, Judge Tymkovich, of course an incorporated kosher butcher really would have a claim to challenge a regulation mandating non-kosher butchering practices.  But that’s because the kosher butcher also is an actual human and was one even before he incorporated himself, er, his butcher shop.

The butcher would have a claim as, um, the butcher–Ira Greenberg, human being, exercising his religious right to use kosher-butchering practices to kill his own food, and his religious right to obtain kosher meat in order to limit his meat eating to kosher.  He also would have a due process right to practice his trade and make a living, unencumbered by an utterly arbitrary and irrational prohibition (or, to use legal formality, a prohibition that has no legitimate governmental interest). And Ira Greenberg Kosher Meats, Inc., would have a similar due process claim, a constitutional claim that, unlike campaign-contribution claims or free-exercise-of-religion claims, could be invoked legitimately by a corporation, because it, unlike political contributions and religious practice, actually would concern the right to operate as the sort of business that it is.

Judge Tymkovich explained that this was just an application of “the First Amendment logic of Citizens United,”  elaborating that “[w]e see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.” And that view may not be because he and his concurring colleague in the 2-1 opinion are nearsighted; it may instead be because they sized up the makeup of the Supreme Court. Tymkovish’s concurring colleague, Harris L. Hartz, wrote in a separate concurring opinion that Hobby Lobby, a chain of crafts retail stores and the corporation in this case, has a stronger legal challenge than the namesake group Citizens United did in Citizens United.  After all, he said, “A corporation exercising religious beliefs is not corrupting anyone.”

Which is true.   It also is really weird.  Although I do seem to recall sitting next to a kosher butcher shop at a synagogue on Yom Kippur a while back.  In fact, we had a brief conversation, in which the butcher shop mentioned that it was wearing its bar mitzvah suit, which it was still able to fit into notwithstanding its regular diet of duck (yum!) and prime sirloin, but that by the next year’s high holidays it would have to buy a new suit because it was about to move into larger shop space.  The prayer shawl, though, would still fit, because it was really long, having been made, the butcher shop told me, with just such a growth expectation in mind.  (Just like the gift clothes my late Yiddish grandmother bought me as a kid!)  Which was good, because you never know when the butcher shop might have to retain legal counsel to invoke its right to engage in kosher-butchering practices, and legal counsel can be very expensive.  Having to also spring for the cost of a new prayer shawl to fit around the shoulders of the larger shop would be expensive, too, considering that it, like the current one, would have to be custom-made at a tailor shop.

And that’s assuming that tailor shops were still allowed by law to custom-make prayer shawls. Even if they were incorporated.  This business-growth/business-ownership thing can get so complicated.

Especially when you throw in Obamacare in order to throw out Obamacare or parts thereof. Which is what Hobby Lobby did.  Throw in Obamacare, that is.

In any event, the current five-member Supreme Court majority, which disputes that a corporation exercising its free-speech rights is, may be, or creates the appearance of, corrupting anyone, is nonetheless likely to agree with Hartz about the rest of that sentence–the part about a corporation having religious beliefs and exercising them. Under this view, a secular corporation has the God-given right, or at least the constitutional and congressional-given right, to use its Supreme Court-given personhood to exercise its First Amendment right to practice its religion and therefore opt out of the provision in Obamacare requiring covered employers to provide healthcare insurance for their employees that includes contraception coverage.

Yes, that’s right, folks.  The hot new culture wars issue about to be accepted for consideration by the Supreme Court at the request of the Obama administration is really a three-fer.  How exciting! It combines–conflates, actually–First Amendment religious-freedom rights and a statute called the Religious Freedom Restoration Act of 1993 (I’ll leave the basis of that statute’s title to your imagination), Citizens United corporate-personhood rights, and Obamacare! All rolled into a single little case in which Hobby Lobby, a closely-held corporation–in this case, the stock is held entirely by its founding family–objects under the Religious Freedom Restoration Act to the loss, by dint of Obamacare, of the family members’ religious liberty not to include contraception in the corporation’s employee healthcare insurance plan.

Two other federal circuit (appellate) courts have ruled against secular, for-profit companies trying to invoke their personhood rights to religious freedom and not comply with the contraception-coverage mandate in Obamacare, creating a conflict among federal appellate courts.  The losing corporations in those cases also have asked the Supreme Court hear their claims, but first up is Sebelius v. Hobby Lobby Stores, which the justices almost certainly will decide at their private conference tomorrow to agree to hear.***  They’ll announce that decision on Monday and will hear argument in the case next spring.**

But what had looked like a walk in the Supreme Court park for Hobby Lobby is actually starting to look less so.  There is now the stirring of backlash from  unexpected quarters, at least to the Mitt Romney theory of persons whose existence is entirely corporate in every sense is still a person and has First Amendment rights.  And presumably also Fourteenth Amendment rights to not be discriminated against just because they’re not actually human.

Well, okay, not from unexpected quarters; just from one such unexpected one: former Tenth Circuit Court of Appeals judge and current Stanford University law professor Michael McConnell. As a University of Chicago law school professor before his appoint to the bench by George W. Bush in 2002, McConnell gained fame and adulation among the religious right for creating the highly successful legal theory that argues, in essence, that the equal protection clause trumps (eviscerates) the First Amendment’s prohibition against government establishment of religion; that is, the government can’t discriminate by denying access to the appropriation of government-sponsored forums to an individual speaker’s right to exercise her own religion by, say, commandeering a high school football game audience or graduation exercise to lead it in (Christian) prayer.

I was, suffice it to say, surprised to read last week that McConnell, now a chaired professor and the Director of the Constitutional Law Center at Stanford, and a Senior Fellow at Stanford’s Hoover Institution, has an article in the newly published edition of the annual Yale Law Review titled “Reconsidering Citizens United as a Press Clause Case,” the abstract which reads:

The central flaw in the analysis of Citizens United by both the majority and the dissent was to treat it as a free speech case rather than a free press case. The right of a group to write and disseminate a documentary film criticizing a candidate for public office falls within the core of the freedom of the press. It is not constitutional for the government to punish the dissemination of such a documentary by a media corporation, and it therefore follows that it cannot be constitutional to punish its dissemination by a non-media corporation like Citizens United unless the freedom of the press is confined to the institutional media. Precedent, history, and pragmatics all refute the idea that freedom of the press is so confined.

The result in Citizens United was therefore almost uncontrovertibly correct. No one disputes that corporations, such as the New York Times Company, can editorialize during an election, and other groups performing the press function have the same right, even if they are not part of the traditional news media industry. A holding based on the Press Clause, though, would not have implied any change in constitutional doctrine about campaign contributions, which are not an exercise of the freedom of the press.

To refresh your memory about Citizens United, the lawsuit was brought by a rightwing political nonprofit group that had made a highly uncomplimentary documentary about Hillary Clinton that the group wanted, under the assumption that Clinton would be the Dem presidential nominee in 2008, to run shortly before the 2008 general election.  The lawsuit challenged a narrow section of the McCain-Feingold campaign-finance law that prohibited the release of outside-interest-sponsored election material within a certain short period (I can’t recall the length) before the election.  It is that issue that McConnell said fell within the First amendment’s express protection of freedom of the press, as distinct from the more generalized freedom of speech.

To refresh your memory of the text of the First Amendment, it is:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And to refresh your memory of how the case metastesized into one that pronounced corporations full-fledged people–and U.S. citizens, to boot!–and can exercise their new-found First Amendment speech rights by proxy of, say, the Koch brothers, who, like the Hobby Lobby corporate share owners are human beings: Well, five members of the Supreme Court, led apparently by Anthony Kennedy, who wrote the Citizens United opinion, simply decided on their own to address the campaign-finance sections of the statute.  I mean, hell; if the Citizens United group had a First Amendment free-speech right to televise their Hillary pillory up to and including the very day of the election, a right on which their status as a nonprofit corporation did not depend, then why should huge for-profit corporations owned collectively by  thousands of individual and institutional (e.g., pension fund) shareholders not have First Amendment rights derived from those shareholders, who have no input whatsoever into the political choices made in their name by the corporation’s CEO?  They should!

And now they do, because although the challenge to the constitutionality of the campaign-finance sections of McCain-Feingold were not challenged by the group Citizens United, which apparently did not feel constrained by campaign-finance limits, they were challenged by Anthony Kennedy, who preached to choirboys John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito.

The latter, Alito, has made a cottage career of publicly feigning surprise that the New York Times, Washington Post and other large media corporations object to Citizens United’s ruling that corporations are people who are entitled to vote by proxy of, say, the Koch brothers–and vote and vote and vote and vote.  Without even having to prove their citizenship by displaying a photo ID obtained through birth certificates issued by the office of the state Secretary of State where they were born, e.g., Delaware, or if a credit card company, South Dakota.  The New York Times and Washington Post are corporations–for-profit ones–for heaven’s sake!  Were it not for Citizens United, these newspapers would not have First Amendment protections for their editorials, which are written by members of the newspaper’s editorial board!

Good grace.  This is an actual Supreme Court justice, saying, repeatedly now, that if corporations aren’t deemed people for First Amendment purposes these newspapers would have no First Amendment protection.  Except maybe to exercise their religions.  Or their brains and reading skills.  The First Amendment’s press clause– “or of the press”–is, maybe, eighth-grade reading level.  And under the Common Core, maybe fifth-grade level.  So Alito thinks the press was inhuman before Citizens United, practicing obstetrics, gave birth to that baby.

But Michael McConnell (of all people) has now published a Yale Law Review article undercutting that argument.  And unlike a now-long-ago article by me in this blog, and blog posts and articles by others deconstructing the Alito claim by pointing out the difference between a commentary by a media organization and the viewpoint of, say, the CEO of ExxonMobil using shareholder’s money to serve his own personal political viewpoint, this law review article, given who authored it, may be read by the five people who matter.

The timing of the publication of the McConnell article is ironic for its potential to undermine the Hobby-Lobby-as-person-with-a-federal-right-to-freely-exercise-its-religion argument, although it appears that Hobby Lobby’s Supreme Court uber-counsel, Paul Clement, already was concerned about losing a member or two of the Fab Five on the claim that for-profit secular corporations have the right to exercise the religion, as opposed to the politics, of its CEO.  But, not to worry. The New York Times article reports:

Among Hobby Lobby’s lawyers is Paul D. Clement, who led the 2012 Supreme Court challenge to the health care law. The new case opened another front in a larger war on the law, which, as Hobby Lobby put it in its Supreme Court brief, “imposes massive obligations on individuals and corporations alike in the process of attempting to fundamentally reorder the nation’s health care system.”

Yes, but didn’t he already lose on that in June 2012?  Ah, well.  If first you don’t succeed, mix Citizens United, the Religious Freedom Restoration Act, and Obamacare.  Sprinkle liberally with the words “freedom,” “liberty,” and “federal government overreach.”  And add a few especially-large grains of kosher salt, borrowed from an incorporated butcher.  I can refer you to one.

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*Cut-and-paste-editing error corrected. 11/25 at 10:30 p.m.

**UPDATE: The justices didn’t wait until Monday to announce that they will hear Sebelius v. Hobby Lobby Stores.  They announced that decision late this morning.

***SECOND UPDATE: Lyle Denniston of SCOTUSblog has posted:

The Court granted review of a government case (Sebelius v. Hobby Lobby Stores) and a private business case (Conestoga Wood Specialties Corp. v. Sebelius).   Taking the Conestoga plea brought before the Court the claim that both religious owners of a business and the business itself have religious freedom rights.  The Hobby Lobby case was keyed to rights under RFRA.

The Conestoga Wood plaintiffs lost in the Third Circuit Court of Appeals (based in Philadelphia), so they are the petitioners–the ones who asked the Supreme Court to hear the case–in their case. And unlike in Hobby Lobby, they are relying not just upon the Religious Freedom Restoration Act but also upon the First Amendment’s free exercise clause.  In both cases, the family members argue that both they individually and the corporation separately have First Amendment free exercise rights and that those rights are violated by the contraception mandate.  [Paragraph edited after posting to reflect additional specifics.]

I wasn’t aware that the Conestoga Wood petition also scheduled for consideration at the justices’ private conference today, along with the federal government’s petition in Hobby Lobby.  Ooops. Now I am!