Given lots of my other views, it would be very natural for me to be supportive of the outcome in Hobby Lobby. I tend to have expansive understandings of both religious liberty and corporate rights, and indeed for related reasons.
But I’m not on board with this.
Citizens United was right that “freedom of speech” doesn’t differentiate among speakers, and an artificial corporate person like the New York Times has it as much as a natural biological person does.
The general doctrine of corporate personhood is right: corporations can enter into contracts, own property, and be held liable for wrongdoing or debts *as separate entities* from the various natural biological persons involved– and this is a necessary and valuable organizational innovation.
The particular doctrine of corporate persons as holders of constitutional rights is right: the corporation qua property owner has, for example, 4th Amendment rights against its property being unreasonably warrantlessly searched, and 5th Amendment rights against it being taken for public use without compensation, or against being deprived of it without due process of law.
All of these has to be true, and a great deal of nonsense has been written by people who don’t like the outcome in Citizens United thoughtlessly and needlessly denying one or more of these. (Note that all of these could be true and corporate spending on political speech might still be limited; the “compelling state interest” test might well be met by the interest in preventing corruption and the appearance of corruption.) Corporations are persons; the creation of a distinct artificial legal person is and always has been the meaning and the point of the corporate form.
Hobby Lobby seems to me to stand for a very different proposition: “[P]rotecting 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.”
This isn’t about the person of the corporation. Remember Mitt Romney’s clumsy stumble around this question:
“Corporations are people, my friend … of course they are. Everything corporations earn ultimately goes to the people. Where do you think it goes? Whose pockets? Whose pockets? People’s pockets. Human beings, my friend.”
Yes, corporations are made of people. But that’s a different point, nearly the opposite point, from saying that they are themselves persons. The judgment today maintains that a closely-held corporation like Hobby Lobby is so close to the natural persons behind it that it’s not really a distinct corporate person at all; it’s just a costume that the Green family puts on and takes off as it suits them.
Notice that the right of a corporation to freedom of the press or to be secure in its property against searches or expropriation makes perfectly good sense in terms of the corporate person’s own interests, regardless of who its owners happen to be. Corporate religious liberty isn’t like that. The reason we have the emphasis here on “closely-held” corporations is because the corporate veil is being pierced in order to look directly at the natural persons behind it.
I think that as soon as the argument for corporate rights you’re making only makes sense for closely-held corporations, it means that it’s a bad argument; it’s a corporations-are-made-of-people rather than a corporations-are-persons argument. Corporate personhood is ultimately justified in terms of the interests of natural persons– their interest in being able to pursue joint enterprises, their interest in being able to educe transaction costs, their interest in being able to interact with stable long-term entities, their interest in the economic benefits of a system in which capital can be pooled and put to long-term use, and so on. But a particular claim of corporate rights shouldn’t require immediate recourse to natural persons to describe it and make sense of it. It makes more sense to say “The New York Times has freedom of the press and the right not to have its offices searched without a warrant” than it does to try to redescribe it in terms of the moral interests of the Sulzburger family, the various employees, the various investors, and so on. The same is true for the corporate religious liberty of the Catholic Church or the Little Sisters of the Poor or the Salvation Army.
But the entity that is Hobby Lobby, a for-profit corporation like IBM, can’t be described as itself having a religious belief. Making sense of that idea requires making the corporate person disappear from the description and talking about the Green family, treating the “closely held” corporation as if it were a partnership or sole proprietorship that doesn’t have a corporate-style separateness from the natural persons. Try as I might, I can’t persuade myself that that’s right. Corporations are persons, or corporations are made out of people– the two thoughts lead to very different conclusions, and I think protecting the former requires rejecting this kind of easy recourse to the latter.