Tuesday, July 1, 2014

Can corporations have religious beliefs?

Photo Credit: AnarchyArt666 via deviantART

The recent Supreme Court's Hobby Lobby ruling has aroused a lot of anger, and has jump-started some liberal rhetoric about corporate personhood.

As an advocate of birth control, I find this ruling disappointing. I would certainly prefer for more women and men to have broader access to birth control, better management of their reproductive lives, and overall greater autonomy. Hopefully, we will find methods to pursue these values despite the outcome of this case.

But while I share these sentiments with many other Americans on the left of the political spectrum, I do not agree with many of the arguments against this ruling. For example, much of John Oliver's complaints here are against the notion of corporate personhood:

Central to much of the critique of the the ruling is the claim that corporations cannot have religious beliefs (Matt Yglesias provides excellent context on why this is misguided). Indeed, many argue that corporations cannot have beliefs at all.

This is wrong. Corporations, and any group of individuals with a regulated decision-making method, can have both acts and beliefs, and indeed, religious beliefs.

Phillip Pettit is well-known from his work on this topic, and has described the following illustrative example. Imagine three people, A, B and C, working as a committee to hire a new lawyer. The group has determines that the individual they hire must have both extensive knowledge of law and impressive credentials in the field. After interviewing a candidate, they might conclude as follows:

Committee Member A: The candidate has both extensive knowledge and impressive credentials.
Committee Member B: The candidate has extensive knowledge but does not have impressive credentials.
Committee Member C: The candidate does not have extensive knowledge, but does have impressive credentials.

If they were all to vote on whether or not the individuals ought to be hired, it would be two to one ruling "No." But their decision structure might require that they each vote only on whether or not the candidate meets their criteria. Since two believe the candidate is extensively knowledgable and two believe the credentials are impressive, as a group they would believe the candidate is a good fit.

In this way, and others, corporations can have views that are distinct from the people that constitute them, and take actions that are not properly thought of as merely the actions of individuals. Since actions can be in keeping with or depart from religious tenets, and a corporation's actions will be shaped by its beliefs, it follows that a corporations can have religious beliefs.

Even without this technical analysis, I think we already know that corporations can have beliefs. Sometimes they choose to make part of their mission not just the pursuit of shareholder value, but respect for the environment, or respect for their employees. As Oliver points out above, Hobby Lobby appears to act in certain ways that reflect specific moral beliefs, like contributing to charity and paying workers substantially above the minimum wage.

Liberals should be very cautious if they want to claim that corporations cannot have beliefs. I think this line of reasoning can undermine efforts to argue that corporations can and should have greater regard for social goods.

And even though corporations can have religious beliefs, it is a separate question about to what extent the government must protect these beliefs. The jurisprudence that exists on the extent of the First Amendment mostly assumes that the subjects of protection are human individuals. Since this law is developed through consideration of the probable consequences of applying the principle, it must be re-thought when applied to the protection of corporate religious beliefs. It is plausible that the religious freedom of constitutions ought to be subject to more restrictions than that of individuals, given the public interests at stake.

However, this ruling does point out some of the problematic complexity inherent in the Affordable Care Act. Using regulations to force companies to do what could be done better by the government inevitably will bring up legal challenges and conflicting interests such as those described in this case.

Of course, it is foolish to suggest that the details of a government-based health care system wouldn't also be rife with controversy.

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