Corporations and the Bill of Rights

[tantalyr]

This week the U.S. Supreme Court granted certiorari in the Hobby Lobby case. In a nutshell, the owners of Hobby Lobby (a privately held company) complain that Obamacare's requirement that company's provide their employees with health insurance covering, among other things, contraceptives and abortion access, unconstitutionally abridges their religious beliefs. It places in front of the Court what is in my view an extremely important issue: what fundamental civil liberties, if any, do corporations and other business entities enjoy?

On the one hand, the Court has previously held that corporations, as entities separate and apart from their individual owners, do not have Fifth Amendment protections. Thus, business entities can be compelled to give up documents that incriminate the company.

On the other hand, as most recently reaffirmed by the Court in the famous/infamous Citizens United case, business entities are entitled to First Amendment free expression rights.

I do understand the distinction between business entities and their individual stockholders/owners/partners. Indeed, I've spent decades representing them. But let me illustrate my concern with the precedent that the Court may set if it rules that business entities are not entitled to fundamental liberties as set forth in the Bill of Rights with the following scenario:

After a lunch with a couple too may beers, a couple of cops decide to wander into my firm's offices and demand access to all the firm's client files. Where's your warrant? we demand. Warrant, schmarrant they reply. You're a business entity--you don't have the right to be free from unreasonable searches and seizures under the Fourth Amendment. So just for giggles they spend the afternoon reading through (or just taking) our client files (which often hold a wealth of our client's deepest secrets).

That scenario worries me. It really does.

[xaeris]

This whole thing about the contraceptives is bullshit.

Plain and simple.

"Infringes upon religious beliefs?"

Seriously?

Okay, so because an Employer is... say Catholic... he should be forcing his employees to NOT get coverage for contraceptives if they wish?

That's bullshit, right there.

If I were a woman and I worked for a company, I'd be rightfully angry at my employer if he were to deny me coverage for contraceptives just because he's a Catholic.

The end choice should fall upon the individual person seeking treatment. If a patient is Catholic then they themselves can willfully avoid using contraceptives.

And the last thing we need are more "accidents" running around because their parents were not able to / did not want to pay for contraceptives.

As for precedents, well... no matter which way the court rules, someone gets screwed.

Either people have to get on their knees for their religious employers who refuse to support contraceptives, or you open up the *possibility* that someday police might storm your office and force you to give up your files on your clients.

Either way it kinda sucks unless they find some way to take a third option or something (make it that businesses don't get _religious_ rights, but they get all other rights? Seriously why does a business need _religious_ rights when not every person working there is going to have the same religion?)

[xaeris]

Here's an idea:

Allow the Federal Government to offer optional Contraceptive Insurance, which covers ONLY contraceptives and make that open for everyone who wants or needs it.

That way, if you work for a business who is owned by a Catholic who refuses to give Contraceptive Coverage, then you can go get this coverage (which would surely be cheap) and basically give your Catholic employer the middle finger figuratively.

OR, they could just make that the default -- Contraceptives are separate from the rest of the health insurance and Contraceptive Insurance is available for everybody separately, thus eliminating the business employer conundrum altogether.

[tantalyr]

Another scenario, then, for the possibilities should the Court hold that business entities are not entitled to the fundamental liberties which individuals enjoy . . .

Same two beered up cops, but this time they decide to raid your ISP's offices. The ISP can't say no to their demands to see all their customer's files because, as a business entity, your ISP isn't entitled to be free of unreasonable searches and seizures. So these couple of cops get to gather all the email and other log in identities and passwords of all the ISP's customers. If you happen to be one of those customers, your Internet privacy rights just went down the drain.

[Deleted]

This road with Corporate rights has been one we've been going down since the mid to late 1800s. Already, because of this, Corporations have more power than the American people when it comes to determining our future.

Xaeris, I completely agree with you.

[FrithRae]

Nov 29, 2013 11:52:27 GMT tantalyr said:

Another scenario, then, for the possibilities should the Court hold that business entities are not entitled to the fundamental liberties which individuals enjoy . . .

Same two beered up cops, but this time they decide to raid your ISP's offices. The ISP can't say no to their demands to see all their customer's files because, as a business entity, your ISP isn't entitled to be free of unreasonable searches and seizures. So these couple of cops get to gather all the email and other log in identities and passwords of all the ISP's customers. If you happen to be one of those customers, your Internet privacy rights just went down the drain.

But is there not other laws that already prevent this?

To me, for the greater good, is yes...actually.. privacy rights are trumpt by people's healthcare issues...

To me, a business is a collection of individuals...but no it does not have, and should NOT have, GARENTEED rights... it is not a sentient human individual.

You can have laws that are passed that protect corporations from said infringements... (as HIPAA and other confidentiality laws and such already do...)...

..but to me giving an inanimate object inaliable rights is not only misguided but... ridiculous.

I'm with the Colbert Nation - a Business is not an Individual.

It is a THING.

But separate from all that, nothing stops them from addressing each one individually as they are /have been doing now. Each of those rulings were about a different amendment... perhaps rulings will have to come down for all of them to decide what a business should, and should not, be protected under...

But..when you say "entitled to fundamental liberties" as in "all or none of them apply to all or none" then nope.. sorry.. my answer is then they get none of them.

An object, (and its not even a physical object), doesn't have any "fundamental liberties" nor is it "entitled" to anything. The individuals might be, but the corporation should not be.

[Pharcellus]

A long time ago, in a country not so far, far away, corporations were highly regulated privileges that were required to serve the public good. This piece from Thom Hartmann explains it well:

"Doing business in America – and pretty much every other developed country in the world – is a privilege, not a right.

In order to do business, you, or you and a group of participants, must petition a Secretary of State for a business license.

If your petition is granted, you will be given to set of privileges ranging from the ability to deduct from your income taxes the costs of your meals (if you discuss business), to a whole variety of special tax breaks, incentives, and immunities from prosecution for things that, had you done them as an individual, you might otherwise go to prison for.

When we set up this country more than 200 years ago, we established some of these privileges, and associated with them some pretty heavy responsibilities.

Up until the 1890s, a corporation couldn’t last more than 40 years in any state – which prevented them from being used as a tool to accumulate massive and multigenerational wealth. A corporation had to behave in the public interest, and when they weren’t, thousands of them every year were given the corporate death penalty, their assets dissolved and their stockholders losing everything (but nothing more than) they had invested.

Over the years, as the Supreme Court has given more and more power to wealthy individuals and corporations, these responsibilities receded so far into the background that in one state, Delaware, your articles of incorporation can be a single sentence stating that you intend to “Do whatever is legal in the state of Delaware.” Which is probably why more than half of all the companies listed on the New York Stock Exchange are Delaware corporations.

The reason we originally allowed businesses to do business in this country was that some benefit would come to society from it. But since the era of New Deal economics was replaced by Reaganomics, the principal rationalization we use to give limitations of liability and privileges to corporations and their masters has changed from, “What is best for society?” to, “How can somebody best get rich quick?”

This is a perversion of the entire concept of why nations allowed people and corporations to do business, and why we facilitate that activity by providing at public expense: stable currencies and a stable banking system; predictable and fair court systems; transportation, electrical, water, septic, and communications infrastructure; a criminal justice system to enforce the rules of the game of business; and a workforce educated at the public expense and protected with a public pension called Social Security. We do all these things so the business will provide some good to the public while, in the meantime, enriching its owners.

But a new business model has emerged in the United States. Companies still get the privileges, but they no longer have to conduct themselves in ways that inure a net positive to the public.

Companies are now free to demand not just huge welfare payments, tax breaks, and subsidies, but can actually play one state off against another in a competition for which state this most willing to transfer the most dollars from the taxpaying individual people to the corporations and their billionaire CEOs. Similarly, corporations routinely use “Right To Work For Less” laws empowered by the Taft-Hartley Act to pit workers in high-wage states against workers in low-wage states, producing a national race to the bottom. "

He goes on to talk about re-enacting the "corporate death penalty" for companies like Walmart, but the core of his argument is that corporations, as recent creations in our society, were and should be relegated to being as they were originally intended: a privilege with HUGE responsibilities to not just the owners/participants, but to the society that they exist within and should, by necessity, serve. They are NOT people. While they *MAY* be allowed certain of the listed inalienable rights of the people, they should be severely limited in those rights to the scope of the privilege that allows them to exist and nothing more.

Also, since they are a privilege granted by the State, they are subject to the separation of church and state doctrine. In other words, corporations cannot hold religious beliefs, and thus cannot discriminate against any person based on those religious beliefs. That's part of the package deal when you apply for a corporation. Thus, this whole "I don't wanna supply contraception and abortion insurance coverage to my employees" thing is utter bullshit. YOU aren't. The state-sponsored entity that you are allowed to run and operate must. Don't like it? Tough.

Now, as for the rest of the original set of concerns and the amended one...

I don't know of anyone with a brain in their head who thinks Citizen's United was a good decision. The court, as it has done in the past, erred grievously.

Regarding the police raiding a lawyer's office without a warrant, there are a number of reasons why it will be very rare, if it happens at all. Firstly, more than just the 4th amendment restriction is at play. There is attorney-client privilege, long established in the courts as an inviolate protection (though it, too, has taken some blows in recent times). Then there are the 4th amendment rights of the clients. Regardless of whether or not the lawyer's corporation is protected under the 4th amendment, the clients as people still are. I realize that some/most of a particular law practices' clients may be corporations, but I think that the other "safeguards" mentioned still are sufficient to protect them -- plus, during a raid, how can the cops be sure which type a client is? Also, the issue of money/power comes into play. Lawyers and their clients often represent a LOT of money.. money that can be used to get rid of politicians and get people fired from their jobs if applied in a targeted way.

So, no, I don't have ANY fear that some drunk cops are gonna raid your law practice, and I say that as a client of a law practice. Not worried.. in the least.

Now, regarding the ISP scenario.. that has already happened, and courts have ruled recently that email communications not stored and managed in your "home" or by the user personally, are not subject to 4th amendment protection. Not to mention this whole NSA spying scandal bullshit underlines the fact that anyone who believes that their electronic communications are protected under the 4th amendment, at least currently, is fooling themselves.

I'm not worried about drunk cops losing their inhibitions, because they don't NEED to be drunk to raid ISPs, nor are they necessarily inhibited by anything to do so if they so please, since the law supports it already.

It is one reason why I control nearly all of my private communication systems, and the few I don't own/control, I don't use for anything important.

Personally, I take the "secure in their persons, houses, papers, and effects" to include electronic communications and owned information storage devices. Unfortunately, the courts have yet to catch up with technology, mainly driven by the insane police state sponsored by the very corporations who don't want to be subject to it, but have no compunction against using it to generate a profit off of it.

Lastly, I blame lawyers for a lot of it, too, because, regardless of whether you think it is stereotypical or not, too many laws only enriches the lawyers, and in this anarcho-capitalist paradise you have created for yourselves, it is the pinnacle of achievement to maximize your raison d'etre and profit massively off of it, especially when it is backed up by men with guns and body armor.

[Deleted]

And here we have it: www.cnn.com/2014/06/30/politics/scotus-obamacare-contraception/index.html?hpt=hp_t1

In her dissent, Ruth Bader-Ginsburg said it best I think.. "Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the [Constitution's] Establishment Clause was designed to preclude."

She's so right, this opens up the flood-gates, and will not end well for the American people in general.

[tantalyr]

Not so fast, Amon. The majority opinion in the Hobby Lobby case is not nearly so broad.

First off, the opinion was decided solely under the Religious Freedom Restoration Act, not the First Amendment. The RFRA was a statute passed by Congress in the '90s to provide statutory protections for religious beliefs. The majority's opinion today does not at all implicate the First Amendment's religious freedom or Establishment Clauses--those were simply not at issue in today's case. Rather, the majority held that closely-held corporations constitute "persons" as the term is defined in the RFRA. It did not express any opinion whatsoever as to whether corporations, as distinguished from individuals, have religious freedoms guaranteed by the First Amendment.

Second, the opinion is narrowly drawn to encompass only "closely-held" corporations. Those are corporations which are not publicly traded. Boiled down to its essence, the majority opinion holds that closely-held corporations, whose shareholders undisputedly hold sincere religious beliefs to the contrary, cannot be required to provide insurance coverage which include contraceptives. This ruling does not apply to publicly held corporations, and likely cannot be extended to do so since, as a practical matter, it would be impossible to derive a consensus of some sincere religious belief among the thousands of shareholders from all walks of life.

Finally, the majority opinion expressly states that despite anything RFRA may imply to the contrary, sincerely held religious beliefs cannot shield corporations from engaging in conduct plainly contrary to law, such as discriminating on the basis of race, or refusing to pay income or social security taxes. So, corporations cannot, say, refuse to serve Hispanics due to some claimed religious conviction that Hispanics are the spawn of Satan.

All in all, its a pretty narrowly drawn opinion. Still, a bad day for the president. Indeed, it's been a bad week for him at the Supreme Court.

[Pharcellus]

Corporations of ANY number of "owners" are NOT FUCKING PEOPLE! They are state-sponsored fictions which should and must be severely limited in terms of what "rights" they are granted, and should never automatically be entitled to any rights granted to natural persons.

If they decided this case based on the RFRA, then the RFRA is in conflict with the Establishment Clause, and needs to be challenged and/or modified/repealed.

I don't give a flying fuck what some business owner's religious beliefs are; as an employee, they don't and should not apply to my rights. Period. EVER. With this ruling, business owners get to dictate to me my rights and choices for healthcare.

How can we have such a double standard? "These" corporations get to discriminate, but "those" corporations don't. How in the fuck is that fair?

Not only that, but who gets to decide what religious beliefs are considered worthy of legal protection? Against contraceptives? Well, OK. Anti-vaccine? No, your beliefs are too crazy/fringe to be allowed support from the law.

Yeah, so they limited the ruling to "contraceptives" -- that just means they've opened the door a crack. As more conservative religious maniacs get onto the court, it'll get opened even more.

It's a fucking dismal decision, in line with so many of their awful decisions, all the way back to Citizen's United.

It wasn't just a bad day for the President, it was an awful day for America.

[tantalyr]

I would have to disagree with the view that corporations are not people for any number of purposes and legal analyses. Of course they are. They are simply groups of persons acting collectively. I should find it a strange and hard bargain indeed if I had to choose between acting solely on my own to accomplish a political purpose (say, supporting some political candidate) and retain my legal and constitutional rights, and acting in concert with a group of like-minded individuals to accomplish the same purpose, but lose all those rights by doing so.

For example, like most home and condominium owners I belong to my subdivision's homeowner association. Should this mere fact mean that when we all (or at least a majority of us) act as a body (say, to petition the city to fix potholes in our streets) we should have no legal or constitutional rights?

Another example. I start a business that I alone own and operate--call it Tantalyr d/b/a Rant Collections. It would be a sole proprietorship, meaning that there is no corporate shell--just me. I think we can all agree that under these circumstances I am plainly entitled to retain all my legal and constitutional rights. I grow that business and become successful enough to incorporate the business as Tantalyr, Inc. for both tax and insular liability purposes. I am still the sole owner--just little ol' me. It is very difficult for me to accept that under those circumstances I have now lost all the legal and constitutional rights I had when I was operating the business as a sole proprietorship.

The question of "imposing" an employer's belief upon its employees presents a grey area. I think all can agree that certain activities should be (and indeed are) prohibited. For example, plainly an employer cannot require all of its employees to convert to Buddhism (or any other religion) in order to maintain employment. That would be obvious religious discrimination in employment, and contrary to law.

But what about imposing on the employer its employee's beliefs? Going back to my previous example, suppose that I, as the sole owner of Tantalyr, Inc., hold a sincere religious conviction that abortion is tantamount to murder and, thus, a sin. I would certainly agree that I cannot in any manner force that belief upon my employees. I could not, say, enforce any employment contract which makes having an abortion grounds for termination. But what about the flip side of that coin? Can the government force me, directly out of my own pocket or indirectly by requiring me to provide health insurance, to pay for my employees' abortions? To me, that is the rub of the matter. While I cannot force my employees to foreswear abortions, neither should I be required to pay for my employees' abortions.

And that is the middle ground which I think lies at the heart of the majority's opinion in the Hobby Lobby case.

[Pharcellus]

Jul 1, 2014 10:50:18 GMT tantalyr said:

I would have to disagree with the view that corporations are not people for any number of purposes and legal analyses.

What a shocker.

Of course they are.

Why, hello there, Mitt Rombot. Fancy seeing you here.

They are simply groups of persons acting collectively.

They are *NOT* "simply groups of persons acting collectively". As originally intended, they are a legal construct legislated into existence by the government which confers special rights, considerations, and restrictions in exchange for providing a net benefit to society, beyond the enrichment of their creators. Nowadays, that "net benefit" part has been largely deprecated, but the various advantages for creating a corporation are still present. As someone else said elsewhere:

"If a group of people breach a contract, you can sue them and they will have to pay you back from their own assets. If a corporation breaches a contract, you can only touch corporate assets.

If a group of people dump toxins into the environment, they can be personally fined and put in jail. If a corporation dumps toxins into the environment, the corporation pays a fine and the people who initiated the dumping don't get touched.

If a group of people destroy the economy through fraud, they can be fined and put in jail. If a corporation destroys the economy through fraud, it gets a slap on the wrist from the SEC.

The law treats corporations differently from "groups of people" in many respects. One of those respects should be their rights. The underlying people have the same rights as before, but the corporation -- as its own entity -- need not have all the same rights as those people."

I should find it a strange and hard bargain indeed if I had to choose between acting solely on my own to accomplish a political purpose (say, supporting some political candidate) and retain my legal and constitutional rights, and acting in concert with a group of like-minded individuals to accomplish the same purpose, but lose all those rights by doing so.

Then don't form a corporation for that purpose. Simple enough?

For example, like most home and condominium owners I belong to my subdivision's homeowner association. Should this mere fact mean that when we all (or at least a majority of us) act as a body (say, to petition the city to fix potholes in our streets) we should have no legal or constitutional rights?

Your sad attempt at bad lawyering, i.e. twisting words, is apparent. NOWHERE have I EVER said OR implied that corporations should "have no legal or constitutional rights". I DARE you to find it. I have only EVER said that they should not have the same (or superior) rights as natural persons. Yes, if you form a corporation to gain the legal and societal advantages of said corporation, you most certainly should expect to trade in some of your rights as natural persons to act in the context and on behalf of said corporation, and/or using the corporation's resources. If you want to exercise your rights on your own, or act in a group outside the context of the corporation, have at it.

Another example. I start a business that I alone own and operate--call it Tantalyr d/b/a Rant Collections. It would be a sole proprietorship, meaning that there is no corporate shell--just me. I think we can all agree that under these circumstances I am plainly entitled to retain all my legal and constitutional rights. I grow that business and become successful enough to incorporate the business as Tantalyr, Inc. for both tax and insular liability purposes. I am still the sole owner--just little ol' me. It is very difficult for me to accept that under those circumstances I have now lost all the legal and constitutional rights I had when I was operating the business as a sole proprietorship.

Then don't form a corporation. Simple enough?

No, seriously -- it's SUPPOSED to be a trade-off; the government confers special considerations and (should) confer special restrictions to balance the needs of both society as well as other natural persons against those considerations. That was the whole point. Nowadays, corporatists want more, more, more rights and privileges that, by any measure of fairness and sanity, they are NOT entitled to. Well, to them (and to you, if you agree with that, which you apparently do) I offer a hearty FUCK YOU. That shit is going to change.

The question of "imposing" an employer's belief upon its employees presents a grey area. I think all can agree that certain activities should be (and indeed are) prohibited. For example, plainly an employer cannot require all of its employees to convert to Buddhism (or any other religion) in order to maintain employment. That would be obvious religious discrimination in employment, and contrary to law.

I don't find it a grey area in the least. *PEOPLE* have religious beliefs. CORPORATIONS DO *NOT*. As a person, you can believe all you want that contraception is a sin, punishable by an eternity in torment. As an employer, acting in the context of the corporation, your belief does not apply to anyone but yourself. In fact, I would argue that you can't even deny government-mandated insurance coverage for contraception to yourself. It doesn't matter since, if YOU NEVER USE IT, you're not guilty of that sin. You don't get to pick and choose what religious beliefs THAT AFFECT YOUR EMPLOYEES are supported or denied by the Corporation.

Don't like that? Then don't form a corporation. Simple enough?

But what about imposing on the employer its employee's beliefs?

That's a ridiculous statement, since NO ONE has EVER stated that the employers had to use contraceptives themselves. Oh, but wait, the belief is that "no one should be allowed to use contraceptives, not just me". Well, there you have it; when your belief system includes considerations which act to coerce other people into your worldview, then they are MOST DEFINITELY NOT beliefs which should be supported or defended as a "right" by a secular government in any way, shape, or form. Your religious horseshit ends when and where it affects >me<. Don't like that and wanna do something about it? Well, we can step outside and I can explain further. >

Going back to my previous example, suppose that I, as the sole owner of Tantalyr, Inc., hold a sincere religious conviction that abortion is tantamount to murder and, thus, a sin.

Then don't get an abortion, or pay for someone out of your own personal pocket to have one out of the "goodness" of your heart.

I would certainly agree that I cannot in any manner force that belief upon my employees.

Then why are you arguing the opposite?

I could not, say, enforce any employment contract which makes having an abortion grounds for termination.

You also cannot, in the context of your corporation, do ANYTHING which, in any way, makes it more difficult for any of your employees to exercise their constitutional right to get an abortion, which INCLUDES denying them mandated healthcare coverage which covers it (though this is a moot point, since the ACA doesn't mandate abortion coverage, but if it did, I would have ZERO problem with it). That also applies to contraception coverage, too, which is far less odious, less costly, and far more commonly used and needed.

But what about the flip side of that coin? Can the government force me, directly out of my own pocket or indirectly by requiring me to provide health insurance, to pay for my employees' abortions?

The government is *NOT* forcing *YOU*, as an individual, to pay for anyone else's coverage. It is forcing the CORPORATION, as the legal fiction, granted special considerations BY said government in the first place, to pay for fair coverage for its employees, REGARDLESS of their (or, more importantly, YOUR) personally-held religious beliefs, because such beliefs are IRRELEVANT in that context. Yes, the corporation has to pay a tiny bit more in terms of premiums to support said coverage. Too damn bad.

Don't like that? Then don't form a corporation. Simple enough?

To me, that is the rub of the matter. While I cannot force my employees to foreswear abortions, neither should I be required to pay for my employees' abortions.

Yes, it is the rub of the matter, and you are arguing for the right to impose your odious religious drivel on other people and impairing their ability to exercise THEIR rights to affordable healthcare. You can go on all day and keep conflating your personal rights with the rights of the corporation (because it doesn't have any religious rights), but it ain't gonna work here. It is nothing more than you defending your right to impose your religion on other people, to their practical detriment.

And that is the middle ground which I think lies at the heart of the majority's opinion in the Hobby Lobby case.

There is no middle ground. There SHOULDN'T be any "middle ground" when it comes to our *CORE* rights as a free people. Either you live by the rules that you (and we all) hold so dear, or toss the Constitution in the fireplace and listen to the parchment crackle with glee. In this context, "middle ground" is nothing more than a code phrase for "having it both ways".

To me, "Freedom of Religion" is synonymous with "Freedom from Religion", and I can't be happier than when these ridiculous and oppressive "religions", and those who practice them, lose and/or die off. Unfortunately, we're fighting a cold civil war over this right now, and each side is taking casualties, but in the end, I have no doubt who is going to be victorious.

[Deleted]

Check it... wow. Sept 9 procedural vote in the Senate on the Constitutional Amendment which would limit campaign financing.