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Alito’s (really) weird lobbying hobby, and its chaotic results

As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.

In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows:

“’General business corporations do not, separate and apart from the actions or belief systems of their individual owners or           employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions                separate and apart from the intention and direction of their individual actors.’ 724 F. 3d, at 385 (emphasis added).”

All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.

— Samuel Alito, writing for the majority in Burwell v. Hobby Lobby, Inc.

What the judge who wrote the Third Circuit opinion that the Court reversed yesterday meant, obviously, is that general business corporations do not, irrespective of the actions or belief systems of their individual owners or employees, exercise religion. The sentence was inarticulate, but its following sentence made clear that that judge was distinguishing the ability to believe from the ability to taken actions. In any event, irrespective of what the Third Circuit judge meant, the fact remains–and Alito states–that a corporation is simply a form of organization used by human beings to achieve desired ends.

The desired ends of for-profit corporations is to make a profit, not to practice or advance a religion.  Alito’s right that it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. It also is important to keep in mind that the purpose of this fiction is to provide protection, for human beings, related to the purpose of the corporation.  Which for Hobby Lobby and other for-profit corporations, is to make money.

Alito then explains via sleight of hand that in enacting the Religious Freedom Restoration Act (RFRA) Congress intended to include for-profit corporations as protected “persons”:

As we noted above, RFRA applies to “a person’s” exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1.

Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard.

We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the meaning of RFRA. See Brief for HHS in No. 13–354, at 17; Reply Brief in No. 13–354, at 7–8.19

This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.20Cf. Clark v. Martinez, 543 U. S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”).

No conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations–other than the definition that Alito provided in that first paragraph I quoted and the paragraph preceding the one in which he says that no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.* The statute isn’t called the Religious Freedom Restoration Act for nothing; it’s called that because it intends to restore the right to humans to engage in religious practices that the Supreme Court then-recently had removed–in the case at issue, the right to use peyote in certain religious ceremonies.  The nonprofit religious entities in each of the earlier cases that Alito cites were religious organizations–they were established for the purpose of joining together to practice a religion, not to make a profit on secular goods or services. The statement that Congress intended to include secular for-profit corporations as protected under the RFRA is a false statement of fact and is absurd.

There most certainly is something about the RFRA context that “indicates otherwise.”  The something is that the statute concerns freedom of religion by, as Alito concedes, human beings, and that there was no conceivable understanding by anyone at the time that this law was enacted that secular corporations–whether nonprofit or for-profit–practice religion or hold religious beliefs.  HHS created a workaround for religious nonprofits, not because they are nonprofits but because their reason (or at least an important reason) for their very creation and membership is the practice of religious beliefs by their human members.

Alito’s opinion strongly implies that corporations have First Amendment rights only as derivative of their human owners.  As I said in my post yesterday, and believe all the more today, both of Alito’s opinions–Harris v. Quinn as well as Hobby Lobby–appear to have been written as majority or plurality opinions decided on constitutional rather than on statutory grounds, and converted into purely statutory rulings after the initial votes among the justices and assignment of the opinions to Alito.  Alito apparently lost one or two members of his bare majority or four-member plurality late in the game in each case, and substantial parts of each of the final opinions.

And I am not the only one who is saying that. Nor the only one who thinks the respective resulting opinions are barely coherent. And as a ruling solely interpreting the RFRA as intended by Congress to protect religious beliefs of “persons” who are actually secular corporations, Hobby Lobby is Lewis Carroll-level nonsense.

But I am gratified that Alito, in a majority opinion, has acknowledged that constitutional and statutory rights of corporations are solely derivative of their human shareholders’ constitutional and statutory rights.  I’ve been arguing here at AB for years now, including in posts about Hobby Lobby in the last few months, that Kennedy’s opinion in Citizens United intimated exactly that by saying that corporations have First Amendment speech rights because they are associations of people; the corporation’s free-speech rights are derivative of its shareholders’. And I’ve been saying, as I did once again in my post yesterday, that corporate CEOs have no legitimate right to exercise proxy First Amend speech rights of shareholders without the shareholders’ authorization.  Including shareholders, or legitimate proxies for shareholders, such as public-employee pension fund managers.

I’m also gratified–deeply, in fact–that the examples Alito used to illustrate his point that corporations have legal rights only in order to protect their human owners, officers and employees were the examples that I’ve used in several AB posts discussing the purpose of legal protections conferred by the legal fiction of corporate personhood. Extending Fourth Amendment protection to corporations indeed protects the privacy interests of employees and others associated with the company. And protecting corporations from government seizure of their property without just compensation does protect all those who have a stake in the corporations’ financial well-being.

But I, unlike Alito, have noticed that Fourth Amendment and Fifth Amendment (property seizure without just compensation) protections are extended to corporations because the corporate computers, office files, and such that are protected under the Fourth Amendment, and the corporate property protected under the Fifth Amendment, relate to or exist because of the purpose of the corporation: to run a business and, for for-profit ones, make a profit.  Secular for-profit corporations rarely own church properties, and if they do, it’s as rental real estate. Corporate shareholders, officers and employees benefit from Fourth Amendment protections for corporate property at the office, but their personal property–a cell phone, a personal laptop, a purse, a briefcase, a jacket with pockets, family photos–that is in their office on corporate property or in a corporate-owned vehicle or in their homes is protected solely by their own, not any corporate, Fourth Amendment rights.

Alito’s statements are preposterous.  But, in my opinion, they also preclude extension of Hobby Lobby corporate religious rights to publicly held corporations.  Alito doesn’t try to reconcile his statement that corporate legal rights derive from the humans who are employed by the corporation as well as by its owners and officers with the fact that the ruling allows the corporation to adopt the religious beliefs and practices solely of its owners irrespective of its employees’ religious beliefs. For that reason, I wonder whether even the part of the opinion singing the praises of legal rights derived from humans associated with the corporation was written by another justice–Kennedy, maybe–and inserted shortly before the opinion was released.

Either way, the formal conflating of owners’ rights and corporate rights does strike me (as I said in my post yesterday) as enabling and even inviting further piercing of the corporate veil, in ways that may not make the Chamber of Commerce very happy.

*Sentence typo-corrected to insert a missing “no” in the second half, and edited slightly for clarity. 7/1 at 8:56 p.m.

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First-Reaction Thoughts About Hobby Lobby and Harris v. Quinn

I haven’t read the opinions, concurrence, or dissents in either Hobby Lobby or Harris v. Quinn, so these comments are based on news summaries and quick commentaries by others.  But the biggest surprise in Hobby Lobby, I think, is the express approval, in the opinion and in Kennedy’s concurrence, of HHS’s on-the-fly setup devised in (I think) 2012 as a workaround to allow nonprofit religious organizations (e.g., Catholic colleges) to avoid directly providing the insurance coverage while still enabling the employees to receive the coverage.

The 5-4 outcome of the case apparently relied on this; it was not dictum. Kennedy’ concurrence makes that clear.  (Which is itself a surprise, given Kennedy’s virulent dissent two years ago to Roberts’ opinion upholding much of the ACA itself.)

This is really important, not just as it applies to the contraception issue but also because the HHS-devised workaround has, of course, been attacked by the right as exceeding the authority of the ACA.  As have the other several HHS-promulgated tweaks to the substance of the statute and to its implementation (for example, delays in requiring certain mandates). The Hobby Lobby opinion effectively accepts as legally permissible these substantive and timing HHS-created modifications by HHS to the ACA.

The other thing that strikes me is that, although one commentator writing a few minutes after the release of the opinion thinks otherwise, the opinion does, I think, open the door to diminished corporate-veil protections.

The opinion did not address the First Amendment free-exercise-of-religion clause.  Instead, it interpreted a statute, the Religious Freedom Restoration ACT (RFRA) as protecting closely held for-profit corporations.  The statute provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  The opinion holds that corporations are “persons” within the meaning of the statute.

The commentator–one of the SCOTUSblog folks writing on their live blog as the Court was in session this morning; I can’t remember who, though–pointed out in answer to a question that the opinion interprets a federal statute and that corporate-structure/corporate-veil statutes are state statutes. The opinion doesn’t alter those state statutes.

But it does, I would think, enable and even invite other incursions through the corporate veil, via federal or state statute or state-court interpretation of rights of potential litigants.

The opinion also apparently tacitly acknowledges, without actually deciding, that First Amendment rights of corporations are solely derivative of their owners’ First Amendment rights, and therefore cannot be treated as though delegated to the personal choices of the CEO.  Thus, the ruling in Hobby Lobby is limited to very-closely-held for-profit corporations.  This obviously is a concession to the dismay expressed by many, many people (certainly myself included, here at AB) at Citizens United’s cavalier delegation of individual publicly-held-corporate shareholders’ First Amendment speech rights to the corporation’s CEO for purposes of donating corporate money to political campaigns. Corporate shareholders, including pension funds, are now entitled to sue to block corporate political donations.

Although Alito wrote the majority opinion in both Hobby Lobby and the other case decided today, Harris v. Quinn, neither opinion reflects what he had hoped for.  Harris, like Hobby Lobby, was decided on as narrow grounds as possible–on grounds that avoid constitutional interpretation and that are decided on other grounds limited in scope to, really, the specific facts in the case.

In my post yesterday on Harris, I suggested the possibility (albeit remote, I thought) that Harris could follow somewhat in the footsteps of an opinion in a case called Bond v. United States, decided on June 2.

The majority voted to hear Bond, intending to use it to make a sweeping Conservative-Movement-cause constitutional pronouncement and overrule a longstanding Supreme Court precedent.  But instead, somewhere along the way after the case was argued and John Roberts had assigned himself to write the opinion, one of the five Republicans–I suspect that it was Roberts himself–had a change of heart. Roberts’s opinion has vestiges of the original draft, but decides the case on other (liberal, actually) grounds.  What was intended initially as a major federalism (i.e., states’ rights to violate federal constitutional rights that the political right don’t care about) ruling based upon the alleged structure of the Constitution ended up as a blow to rampant abuse of prosecutorial discretion.  Hooray.

In Harris, the Conservative-movement cause was not neo-federalism but instead the decimation of labor unions, especially of public-employee ones.  The mechanism was to be the First Amendment speech clause, and Alito, who openly coveted the assignment to write the opinion–earlier, in another case, he said he wanted to overrule a 1977 Court opinion, Abood v. Detroit Board of Education, that was the foundation of the relevant aspect of current labor law–had indicated at the argument in January that he thinks the very existence of public-employee unions violate the First Amendment.

But the best-laid plans went somewhat awry again, and this time apparently it was Scalia (of all people) who threw the first wrench. Scalia reportedly made it known at the argument that the First Amendment speech challenge to the “agency fee” concept in union representation of non-union employees in “union shops”  just doesn’t make sense, in his opinion, even if the union is a public-employee one.

My guess is that Scalia originally agreed only with the bare outcome, but on the limited grounds on which Alito’s opinion ultimately rests: that under the specific Illinois law at issue, the 1977 opinion that approved the “agency fees” didn’t apply to the employees at issue in Harris–home healthcare employees paid by the state’s Medicaid system–because they are employees partially of the state and partially of the customer. My guess also is that somewhere along the way, Alito lost another vote for what was to be his four-justice plurality opinion; one of the four jumped ship and joined Scalia. Alito then was compelled to effectively adopt Scalia’s concurrence as the bottom line–the ruling–in his opinion, but was not compelled to remove the reams of dictum from it that Kagan, in her dissent reportedly mocks at length.*

If my speculation is correct, the substance of the Harris opinion bearing Alito’s name was dictated, literally, by Scalia. In any event, this wasn’t quite the day of victory for Alito & Friends that they had envisioned.  Really, it wasn’t even close to that.


*Typo in sentence corrected, 7/1 at 1:34 p.m. 

UPDATE: Most of what I wrote in this post based on the early summaries and analyses of the opinions, but before I had read the opinions themselves, holds up surprisingly well, I think.  I don’t think you can read the opinion in Harris without recognizing the real likelihood that most of Alito’s opinion was written as one overturning Abood, maybe as a plurality or maybe as a majority opinion, and then one or two of the justices who had signed on to overturning Abood changed his mind.

I hope to write an update post later today, though. 7/1 at 1:37 p.m.

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