From The Huffington Post comes word that the Honorable, the Justices of the Supreme Court of the United States, are wrestling with the potential ramifications of the decision that they will render in Sebelius v. Hobby Lobby. That case, in which the Court heard oral arguments earlier this week, raises the question of whether for-profit corporations may claim exemption from healthcare regulations that require the corporations to provide healthcare benefits that may conflict, not with the corporations's shareholders's religious scruples, but with the corporations's own religious scruples.
According to HuffPo's Ryan J. Reilly and Laura Bassett, the Supremes are up against the ramifications of their earlier decision in Citizens United, which granted to non-natural persons (that is, to legal fictions) free-speech rights cognizable under the Free Speech Clause of the First Amendment. As if that weren't bad enough, Citizens United also created at least a tacit equation between political donations and speech, thus cloaking corporate political donations with the "get-out-of-regulatory-jail-free card" of the First Amendment. From speech in Citizens United, the Court now finds itself having to deal with corporate behavior in Hobby Lobby.
It is an established principle that inaction is a form of action, and that, in certain circumstances and certain contexts, action can constitute speech. The question in Hobby Lobby is, can the government sanction inaction (the refusal actually to provide contraceptive services and products, or to pay for insurance to provide such services and products) when the law requires action? It is a principle that the government cannot compel speech; the most famous case in that line is Miranda v. Arizona, which established the "right to remain silent" under police interrogation - although, to be sure, the same Court that perpetrated Citizens United has also demonstrated its contempt for civil rights by ruling that one must assert, verbally, one's election to exercise one's rights under Miranda. That is, in order to remain silent, one must speak. That's how they do things in Cloud-Cuckoo Land.
If Hobby Lobby, Inc. is exercising its First Amendment rights (all of which were granted to it by the Citizens United decision) by "speaking" its refusal to act, can the Federal government compel, by criminal or civil sanction, or by any other mechanism, the corporation to act? The justification for Hobby Lobby, Inc.'s refusal to act has been based on "religious principles"; those principles have been enunciated by the human/natural person shareholders (or their reps; the corporation itself, like the Baals and the Ashtaroth of the Old Testament*, having no mouth, is unable, conveniently, to speak for itself).
It will be interesting to see whether the Court seizes the opportunity presented by Hobby Lobby to walk back deeply-reviled Citizens United decision, by placing limits on corporate "speech," or possibly even to reverse itself on the concept, generally - the latter not very likely. Even more interesting will be the knock-on effects of a decision by the Court that a corporation has a right of conscience - that is, that a legal fiction, a creature of the (secular, profane) law, can have moral scruples. It will be a "nice question" for the Justices to consider: just how human is a corporation, after all?
Qu'elle dommage! The Skeptical Entrepreneur respectfully declines to shed a tear for the Supremes's dilemma. For a dilemma it is. Observe:
If a corporation has a conscience, to assuage that conscience the corporation must avoid even the near occasion of sin: to-wit, it must decline to pay premiums to an insurance underwriter, to the extent that such premiums would be used to provide post-fertilization medico-therapeutic counseling services and products (that would cause the death of [or, at least, impede the continued survival of] a zygote). Pre-fertilization contraceptives - condoms, diaphragms, and other barrier methods; chemical (read: hormonal) contraceptives that disrupt the menstrual cycle; and surgical interventions, all are acceptable, insofar as they prevent fertilization. Hobby Lobby, Inc.'s objection is to being forced to commit the sin of murder, in that it doesn't want to have to pay for abortifacients.
Therein lies the dilemma.
If Hobby Lobby, Inc. argues that it should not be forced to commit sin, it admits, implicitly, that a corporation which is capable of speech is capable of sin. Leaving aside the question of how a (literally) soulless corporation can commit sin, we have to extend our reasoning to acknowledge that if a corporation is capable of sin, it is capable also of committing a tort, and/or committing a crime. By advocating for a right of conscience, Hobby Lobby, Inc. has thrown its corporate neighbors, collectively, under the bus, by eliminating the possibility that corporate officials can fall on their swords. If the Supreme Court rules, in Sebelius v. Hobby Lobby, that a corporation has conscience rights, from that point on, all misdeeds by corporate officers, agents, assigns, etc., can be - and they certainly will be - laid squarely at the corporation's door.
Does any corporation have pockets that deep?
* You know . . . false idols, etc.
