There are about 60 large corporations suing the Federal Government for the right to NOT follow Obamacare's requirement to provide abortion and birth control in their company insurance plans.
The basis of all these suits is that such coverage violates these corporations' individual freedom of religious expression, which our Constitution guarantees to all persons.
The question these various Federal District courts are facing is whether a corporation can have religious faith and beliefs, and practice them. You know, like a real person can. Is a corporation a really real person?
This used to be a silly question. Until Citizens United was handed down by the Supreme Court, making money free speech and free speech a natural right of corporations as individual entities. One slippery step toward corporate personhood . . .
About half of the Federal circuit courts that have heard these cases reason that corporations are effectively people ever since the Citizens United decision that declared corporate money gifted to politicians and SuperPACS is protected free speech.
They further reason that if the First Amendment applies to corporations in the matter of free speech, then it must necessarily apply completely to a corporation, including its freedom of religion clause. The whole of the First Amendment must apply, or Citizens United meant nothing.
Corporations will have to be granted religious freedom to behave as they please on matters of abortion and contraception if these are matters of faith. That would also necessarily apply to any faith based belief of the company. Forbidding divorce. Being virulently anti-gay. Whatever their beliefs may be, they are protected by the Constitution from government intrusion by the whole of the First Amendment.
And about half of the the Federal circuit courts that have heard these cases feel that secular corporations -- legal entities that can be bought and sold on the open market -- have always been viewed as fictional entities completely separate from their owners, owners who can change overnight through a simple transfer of money. If it is a publicly traded company, as many of these 60 plaintiffs are, then there are thousands of owners who change hourly as shares are bought and sold. How could the religious views of this ever changing multitude even be ascertained at any given moment?
Besides, this legal precedent of corporations being wholly separate entities from their owners has been upheld by every American, English and European court for centuries. It would be going against the whole edifice of western jurisprudence to suddenly assert that fictional legal persons like corporations could even hold religious beliefs.
Only real people can hold religious beliefs, and corporations aren't real persons, and cannot ever be persons. Where is their soul -- in their bylaws, in their accounting books, or is it in the building they occupy or the goods they produce? Where is a corporation's heart, or mind? In the CEO's office, or in the IT department? Perhaps on the loading dock? It's ridiculous to even be thinking in terms of a company being a living person. It is a paper creation, a state charter, a legal fiction.
So . . . with Federal judges pretty evenly divided across the country, this whole mess is headed to the Supreme Court, and they won't likely be able to avoid hearing it since the lower courts are so split on the notion.
You can take the reasoning either way, it seems, but the real problem for the Supreme Court is that they started this mess with their Citizens United decision. Now the chickens have come home to roost. Once they took that first step in the direction of corporate personhood with Citizens United, it will now take some pretty fancy legal footwork to avoid taking the next logical step, then the next, then the next.
In the end, corporations are fully persons under the Constitution, or they are not. Citizens United tries to give corporations one little advantage of corporate personhood -- free speech in the form of unlimited money for politics -- but you can't apply the Constitution piecemeal that way. Scalia's cherry-picking days are either over, or we're in for some major, major changes in how our country operates.
The Supreme Court may have to reverse themselves on Citizens United -- an embarrassing proposition for John Roberts. But then, Citizens United is getting to be pretty embarrassing itself, having unleashed forces and funding way beyond anything Justice Roberts could have foreseen. It's one of the most unpopular decisions the Supreme Court has ever made, in the public mind. Real people do not think banks and car makers and laundromats are people.
One thing is certain. If the reasoning that Citizens United effectively made corporations real people prevails, and religious freedom is also added to their "natural rights" as persons, it only opens a Pandora's Box of legal issues down the road: all other parts of the Constitution must inevitably apply to corporate persons.
A trade union is a person.
An organized, armed and incorporated mercenary army is a legal person.
A local church is a person, free to be hateful toward real people they believe are going to hell for not joining them in their beliefs and practices. The government cannot restrain them with hate speech laws or hate crime laws.
A hippie commune that believes drugs and free love are the answer is a person, free to practice its faith without DEA interference.
The privately owned Federal Reserve Bank will be a legal person, free to seek profit and happiness without interference from Congress or the Treasury.
A pimp can incorporate his stable of escorts, declare sexual freedom his religious tenet, and perform missionary work for the churches and mercenary armies. Should be a lot of good business there.
Burning down a laundromat while no human is in it will be first degree murder, punishable by death. Not arson.
Corporations will be able to form unions, which will themselves then be (real big) people. How does the Global Brotherhood of Banks sound to you?
And then there's the slippery slope of the whole Bill of Rights. If the First Amendment applies to corporate persons, then the rest of them apply as well:
The Second Amendment lets corporate persons arm themselves as they see fit, form militias, and stockpile ammunition.
The Fourth Amendment protects corporate persons from surveillance, eavesdropping, wiretapping, searches and seizure of their papers without a specific warrant from a judge naming exactly what is to be seized or searched or surveilled.
The Fifth Amendment will let corporate persons 'take the Fifth' to avoid self-incrimination. No more having to shred papers or stonewall the SEC or the FBI or perjure yourself before Congress. Just take the Fifth.
The Sixth Amendment will assure corporate persons that they can only be convicted by a jury of their peers -- other corporations. That ought to keep things pretty safe for corporations. Us good old boys got to stick together, after all.
The Seventh Amendment assures corporate persons that they can always have their criminal behavior settled by a jury of their peers, not by some regulatory agency or individual judge or unwashed, common citizens.
The Fourteenth Amendment is bad new for corporate persons, because the 14th will require that they be treated equally -- just like really real people they will have to pay the same income taxes, sales taxes, social security, property taxes, and all the rest. No more loopholes or special treatment for capital gains or offshore subsidiaries. They'll have to operate on a yearly household budget just like the rest of us. No deferred profits or dummy corporate persons. The IRS doesn't accept imaginary children for deductions. And if they get to have loopholes, we get them too. Equal treatment under the law.
This will be a very different country, and a very different world.
For the mere two-legged human being, life will be like that of an ant trying to cross a busy sidewalk while giants stride upon it.
Better to join a corporation and become part of someone that's really real. Otherwise you're just gonna get stepped on.