Corporations & Religious Freedom II: That Person Thing

U.S Postage Stamp, 1957

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In my previous essay on corporations and religious freedom, I addressed the issue of whether or not being compelled to provide a health plan that covers contraception is a violation of a corporation’s religious freedom. My conclusion was that it was not. I now turn to the more general issue of whether or not a for-profit corporation is the sort of legal (fictional) entity that can be justly ascribed the capacity for religious belief and hence a right to exercise religious freedom.

As noted in the previous essay, the corporations that are challenging Obamacare on the matter of contraception are doing so on the legal basis of the is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.

Since the act applies to person who hold religious beliefs, it is tempting to simply assert that corporations are not people and hence not covered by the act. However, in the United States corporations are taken to be people in regards to the law.

In fact, the status of corporations as people was critical in the Citizens United ruling that banned restrictions on corporate spending in politics. The general idea is that since a corporation is a person and a person has a right to free speech, then a corporation has the right to free speech.

Given this precedent (and argument), it would certainly seem to follow that a corporation has the right to freedom of religion: Since a corporation is a person and a person has a right to freedom of religion, then a corporation has the right to freedom of religion. This would thus seem to settle the legal matter.

There is an easy and obvious way to reduce this sort of “corporations are people” reasoning to absurdity:

Premise 1: A corporation is a person (assumed).
Premise 2: Slavery is the ownership of one person by another.
Premise 3: The 13th Amendment to the United States Constitution forbids slavery.
Conclusion: The ownership of a corporation is forbidden by the constitution.

This seems completely airtight. After all, if corporations get the right to free speech and the right to religious freedom because they are persons, then they also get the right not to be owned because they are persons. Naturally, this will seem silly or absurd to the very people who easily embrace the notion of corporation personhood in the case of unlimited campaign spending. However, this absurdity is exactly the point: it is okay to own corporations because they are not, in fact, people. They also do not get the right to free speech or religious freedom because they are not, in fact, people.

It could be countered that corporations are very special sorts of people that get certain rights but can be denied other rights in a principled way. Obviously enough, those who own corporations and their defenders might be inclined to hold that corporations get the rights that are useful to the owners (like the right to free speech) but do not get a right that would be a serious problem—like the right not to be owned. However, there is a serious challenge in regards to doing this in a principled manner (and the principle of what is good for me is not a principled principle). That is, the problem is to show that corporations are entities that can justly be ascribed freedom of speech and freedom of religion, but not freedom from ownership. Ironically, as I will endeavor to argue, claiming that corporations are such that they can be justly ascribed the qualities needed to ground a right to freedom of religion would also seem to involve claiming that they have the qualities that would forbid ownership.

In order to exercise religion and thus be entitled to freedom of religion, an entity would seem to require the capacity for religious belief. Belief is, of course, an intentional mental state—a belief is about something and it is mental in nature (although the mental might be grounded in the physical, such as in a nervous system). Being legal fictions, corporations have no mental states and no intentional states. That is, a corporation has no beliefs—religious or otherwise. As such, a corporation is not entitled to freedom of religion—since it has no capacity for religious belief.

This could be countered by claiming that the owner of the corporation provides the intentional states of the corporation. In the case of religion, the religious beliefs of the owner are the religious beliefs of the corporation. Thus, the personhood of the corporation rests on the personhood of the owner. However, if the corporation has the identical mental states as the owner, then it is the owner and vice-versa. While this would handle the freedom of religion matter, it would entail that the corporation is not a separate person in regards to freedom of speech and that ownership of the corporation would be ownership of the owner. If the owner is the sole owner, this would be fine (a person can self-own)—but if the corporation is owned by stockholders, then there would be a problem here since owning people is unconstitutional.

It could be replied that the above is mere philosophical cleverness (as opposed to the legal cleverness that makes a corporation a person) and that the beliefs of a corporation are simply those of the owner.

The obvious problem is that this would entail that the corporation does not have a religious belief that it can exercise. To use an analogy, if the Supreme Court ruled that my left running shoe is a person that I own like a corporation and that thus has my religious beliefs as its own, this would obviously be madness. My shoe, like a corporation, does not itself have any beliefs—religious or otherwise. The mere fact that I own it and it is legally a person does not grant it the capabilities needed to actually possess the foundation for the right to religious freedom. Or speech, for that matter—thus also showing that the idea that corporations have the capability to engage in free speech is absurd. What they do is, in effect, serve as legal puppet “people” manipulated by the hands of actual people. Obviously, if I put an actual puppet on my hand, it is not a person. Likewise, if I create a legal entity as my puppet, it is still not an actual person—its beliefs are just my beliefs and its words are just my words.

The actual person who owns a corporation has the rights of a person—because she is a person. Thus, the owner of a corporation can contend that her religious freedom has been violated. But it is absurd to claim that a for-profit, secular corporation can have its religious freedom violated—it is simply not an entity that can have its own religious beliefs. This distinction between the owner and the corporation certainly seems fair. First, the owner still has all her rights. Second, having a distinction between the owner and the corporation is exactly the point of many of the laws government corporations (such as finances).

If someone insists on claiming that the corporation is not a legal puppet and that it has the capabilities that provide a foundation for these freedoms, then they would run afoul of the argument regarding the ownership of persons. After all, an entity that can hold religious beliefs would thus seem to be a person in a meaningful sense that would forbid ownership.

Thus, the dilemma seems to be this: if a corporation is a person and thus gains the rights of being a person, then it is unconstitutional to own a corporation. If a corporation is not really a person, then it is legal to own it but it is not entitled to the rights of a person, such as freedom of speech and freedom of religion.

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  1. Great post Mike. While the idea of equating a corporation with a person had some merit it clearly looks like a bad idea with hindsight.

    What is really needed is to declare that corporations have the state of being a corporation, that has some of the rights and responsibilities of a person, but also has different additional ones and cannot have others – for both rights and responsibilities. By defining that sort of entity without making it equivalent to personhood it is a simple matter of deciding which rights and responsibilities it has.

    It would be interesting to see the slavery issue raised as a legal case. I’d start by making a legal attack against those corporation owners claiming religious freedom for their corporations, by charging their owners with slavery.

  2. Doris Wrench Eisler

    Good argument and it might also be said that if a corporation has the privileges of a person it must also have the liabilities, and one of them is the possibility of going to jail or prison by due process. So obviously the ruling that made corporations persons is absurd in the first place and poses an anomaly in any system calling itself democratic. This is especially the case with monopolies, or near monopolies considering the weight and influence on government policies. There is a close alliance between government and corporations in a fascist system. But democracy seems to have taken a back seat to survival mode these days, and just about anything goes.

  3. I enjoyed reading this and was moved to offer a few comments:
    1. The whole point of the legal personhood of a corporation is that it is given a legal identity separate from that of its owners, so that the liability of its owners is limited. Owners may change but the corporation persists. It cannot therefore be argued that the beliefs of the owners are the beliefs of the corporation, as if owner and corporation were numerically identical. The very notion of ownership implies the existence of that which is owned, and which is separate from the owner.
    2. I agree that corporations do not have mental states. This is a matter of fact, not law. They cannot, therefore, have beliefs, religious or otherwise. It would therefore be nonsensical to argue that corporations have a right to freedom of religious belief.
    3. Irrespective of your views on rights with regard to real persons (I am a virtue ethicist), a corporation can only have those rights which are conferred upon it by the state. It cannot have ‘natural’ rights, since it has no ‘natural’ existence.

  4. Jon Goulding,

    “The whole point of the legal personhood of a corporation is that it is given a legal identity separate from that of its owners, so that the liability of its owners is limited.”

    No. As Andrew Jackson remarked, Corporations have neither bodies to kick nor souls to damn . Corporations, since their inception have had limited liability. That is their liabilities were limited to the assets of the corporation – and generally not extended to the assets of either its’ officers or investors.

    No bodies to kick nor souls to damn.

    Granting corporations a strange kind of personhood as has happened in the US, is more due to the actions of canny and unscrupulous lawyers. A strange personhood, as it grants the corporation all the rights of a person, without the obligations and responsibilities.

    There are so many holes in this corporate personhood, that it strains the bounds of credibility well beyond their snapping points. But, in truly ‘only in America’ moment, they got this one through. I imagine the most difficult aspect of the enterprise, was the lawyers and judges trying to keep a straight face – but maybe that’s what they teach them in law school.

    Okay, in other countries they cannot be as barefaced as in America; “Corporations are people too!”. But, since corporations have the money, which is like crack cocaine for lawyers, similar legal fictions exist to place the bodies and souls, of the responsible officers beyond a kicking and damning.

  5. JMRC,
    I am not sure what relevance Andrew Jackson’s words have here, as I was not suggesting that a corporation is a person in any sense other than a legal one. What ‘person’ means in popular usage, or psychology, or philosophy has little relevance to its use in law.

    I am in the UK and am not particularly familiar with US law. However, I understand that the corporation is a legal person (sometimes referred to as a ‘fictitious person’) pretty well everywhere. Given the limited liability of shareholders, the legal personhood (and thus legal capacity) of corporations is essential if they are to be able to enter enforceable contracts etc.

    I am not defending corporations, or corporate lawyers, or any of the rights which the US or other states might confer upon corporations. Far from it! I suspect that the differences between us are merely terminological.

  6. Jon Goulding,

    “I am not sure what relevance Andrew Jackson’s words have here, ”

    Andrew Jackson was specifically referring to corporations when he made his no bodies to kick, no souls to damn statement.

    At the time corporations were just coming into existence, and they were setting a peculiar precedent that even today we have problems with. Before the corporation, ownership conveyed moral and legal responsibilities on the owner of an enterprise. A shareholder of corporation has no legal responsibilities to anyone, and few believe they have a moral responsibility either.

    For example. In most jurisdictions, if a private individual owns a dangerous dog, and the dog attacks and harms a member of the public, then the dogs owner may be criminally liable for the harm caused – they can go to jail. On the other hand, if a corporation owns a dangerous dog, and it attacks a member of the public, they can be sued in civil court for damages, but who goes to jail?

    And it gets more serious. And this would have been Jackson’s concern. In the instance of Bhopal, where thousands died, who went to jail? The answer is no one. Jail is a wonderful deterrent. But if the deterrent is not there, and the owners and directors of a corporation are only limited in liability to the assets of the company, then you have a moral hazard. The owners and directors get to play Russian roulette with someone else’s head. Like the people of Bhopal.

    “as I was not suggesting that a corporation is a person in any sense other than a legal one. What ‘person’ means in popular usage, or psychology, or philosophy has little relevance to its use in law.”

    Actually, the law is one area where philosophy has a real world application. Interpretations are derived through logical argument. And great care must be placed in drafting law, that does not lead to unintended interpretations, and similarly in setting precedents – Mike’s path of reasoning is how it is done. If lawyers can find a logical argument, they can literally turn a law inside out. American law is headache inducing, but for the purposes of law, as you will see in UK acts of parliament, a person is a flesh and blood person. The legal definitions are very clear.

    The granting of personhood to corporations, as Mike is on about, relates to a very specific instance. And that is Citizens United v. Federal Election Commission.(Firstly, Citizens United is not a group of concerned rugged individuals, living somewhere out on the prairies. It’s just two concerned citizens; Charles and Bill Koch, heirs to a vast fortune.) There are limits on corporate contributions in the US. Bill and Charles cannot just buy the government as they’d like to. The supreme court case is more complicated, but the Koch brothers’ argument was their 1st amendment right, or more the 1st amendment right of their corporation, the right to free speech, was being violated by restrictions on financing political campaigning material.

    The corporation is a legal entity, it is not a person. The case did not in fact grant the corporation personhood, but recognised the right to free speech in terms of the officers of the company’s personhood. The counter argument of course is that the officers of company are responsible to their shareholders, and any political campaign financing, is a transactional; they are buying something to make their company more profitable. And this is often the case with political donations. In comparison to American elections and campaigning, England is quite quaint. UK political parties spend millions – their American counterparts hundreds of millions, and now it’s reached the point of billions. But UK campaigning is still largely handing out leaflets, knocking on doors and talking about pot holes.

    “I am in the UK and am not particularly familiar with US law. However, I understand that the corporation is a legal person (sometimes referred to as a ‘fictitious person’) pretty well everywhere. Given the limited liability of shareholders, the legal personhood (and thus legal capacity) of corporations is essential if they are to be able to enter enforceable contracts etc.”

    No, the corporation is recognised as an entity. And the officers of the corporation are recognised as persons. But, and this is a big But. Their legal liabilities as persons are limited too. The difference is, like in the instance of the dangerous dog. If a private individual; a person, owns the dog and it harms someone, they’re are criminally liable. If a corporation owns the dangerous dog, then the responsibility of an officer has to be proved before they can be individually criminally liable. The civil liability of the corporation is more clear cut, but not the criminal liability of individual officers. When the Koch Brothers’ company spills oil, as they do, they just pay a fine and get back to business.

    Even in the Koch Brothers Vs the American People, the corporate entity is not given personhood – there is a definite fudge, but it still does not receive personhood.

    Personhood is a contentious issue in itself. Anti-abortion campaigners have tried the tactic of having the foetus granted personhood – some jurisdictions the foetus does have personhood. One way the Roma were historically persecuted in Europe was for them to be legally denied personhood – you could legally kill them.

    “I am not defending corporations, or corporate lawyers, or any of the rights which the US or other states might confer upon corporations. Far from it! I suspect that the differences between us are merely terminological”

    Well it’s not really an issue of terminology. If personhood and corporate entity, became indistinguishable – then constitutional law concerning slavery, among other things, would automatically apply. American corporations do not have a personhood – but the case with the Kochs is they want certain rights but if one of their fertilizer plants explodes – or Koch industries is responsible for another Bhopal, the brothers are not asking for the right to take personal responsibility and go to jail. But what’s been set is a dangerous precedent. And the revolution gets exported. It’s only a matter of time before corporate lawyers in Europe attempt to use human rights legislation to protect or further the interests of a corporate entity.

  7. JMRC,

    My sincere thanks for taking the time to write at such length. I feel duty bound to up my game and respond in more detail. I still maintain that we are not arguing from substantively different attitudes towards corporations, but here goes:
    “Andrew Jackson was specifically referring to corporations … At the time corporations were just coming into existence …”
    Corporations have existed since the 16th century, although I accept that their rise to dominance occurred much later. I understood the context of the Andrew Jackson quote (although I have also seen it attributed to Edward Thurlow) but not its relevance. Were anyone to contend that corporations are real persons, then his comment would be telling. However, I for one am certainly not making that claim.
    “In the instance of Bhopal, where thousands died, who went to jail? The answer is no one.”
    I am familiar with these shocking and terrible events. Just because the financial liabilities of a corporation are not the financial liabilities of its owners or officers, this is no reason to exclude criminal liability of those making the decisions. Lamentably, though, courts will rarely hold executives criminally liable because generally it cannot be proven that a specific individual was a ‘directing mind’ behind a corporation’s criminal activity. Personally, I would like to see a legal presumption of criminal liability for all executive directors, so that if a corporation is proved guilty of a criminal action, the onus is on those directors to prove that they had no involvement in that action. Although this might be seen as contrary to the legal presumption of innocence, there is precedent for something akin to it – in English law at least – whereby if you are a member of a gang who is present when someone is murdered, you are deemed guilty of murder even if it cannot be proved that you personally killed them (or even if it can be proved that you didn’t personally kill them).
    “Actually, the law is one area where philosophy has a real world application. Interpretations are derived through logical argument. And great care must be placed in drafting law, that does not lead to unintended interpretations, and similarly in setting precedents …”
    Philosophy generally has real-world applications! And care must indeed be taken in drafting a law. (One problem here in the UK is that, owing to the sheer volume of legislation being passed, laws are often not drafted carefully enough.) However, laws can define terms in particular ways – ways which may well be different from normal usage. How these terms are to be interpreted may be specified in the law itself. Where not, interpretation by the courts may be as much a matter of legal convention as of ‘logical argument’. For example, if an act makes reference to ‘cats, dogs or any other animal’, ‘any other animal’ is interpreted by convention to mean only any other domestic animal. I will return to the interpretation of ‘legal person’ below.
    “The corporation is a legal entity, it is not a person.” (And similar comments in what follows.)
    No. The concept of a fictitious person goes back probably as far as the 13th century, when Pope Innocent IV gave monasteries a legal existence separate from that of the monks. The corporation as a legal/fictitious person is long established. Here is an extract from ‘The Historic Background of Corporate Legal Personality’ by John Dewey, published in 1926 in the Yale Law Journal:
    “In saying that ‘person’ might legally mean whatever the law makes it mean, I am trying to say that ‘person’ might be used simply as a synonym for a right-and-duty-bearing unit. Any such unit would be a person; such a statement would be truistic, tautological. Hence it would convey no implications except that the unit has those rights and duties which the courts find it to have. What ‘person’ signifies in popular speech, or in psychology, or in philosophy or morals, would be as irrelevant, to employ an exaggerated simile, as it would be to argue that, because a wine is called ‘dry’, it has the properties of dry solids; or that, because it does not have those properties, wine cannot possibly be ‘dry’.”
    In Dewey’s example – ‘dry’ when applied to wine and ‘dry’ when applied to solids – the word dry is equivocal (i.e. it has two different meanings). Similarly ‘person’, when referring to the legal (or ‘fictitious’) personhood of a corporation does not mean the same as ‘person’ when applied to me or you. The barrister who taught me law (many years ago before I saw the light and did a degree in philosophy) used to say that, whereas a real person can do anything unless expressly forbidden by law, a legal person cannot do anything unless expressly permitted by law.
    If you are denying that corporations are legal persons, then you are simply wrong as a matter of fact. However, whilst I was asserting that corporations are legal persons, I take you to be denying that corporations are real persons. I would concur. This is way I said that the differences between us are merely terminological.
    “Personhood is a contentious issue in itself. Anti-abortion campaigners have tried the tactic of having the foetus granted personhood – some jurisdictions the foetus does have personhood. One way the Roma were historically persecuted in Europe was for them to be legally denied personhood – you could legally kill them.”
    Since I, like you, deny that corporations are real persons, this is not an issue between us.
    “If personhood and corporate entity, became indistinguishable – then constitutional law concerning slavery, among other things, would automatically apply.”
    We have only to amend that to ‘if real personhood and legal personhood became indistinguishable …’ and we can agree.
    “It’s only a matter of time before corporate lawyers in Europe attempt to use human rights legislation to protect or further the interests of a corporate entity.”
    If corporate lawyers in the USA are arguing from the legal personhood of corporations to their real personhood, such that corporations would fall under human rights legislation, then they are arguing fallaciously. There fallacy would be of this kind:
    1. A three-day-old hamburger is better than nothing.
    2. Nothing is better than world peace.
    Therefore: A three-day-old hamburger is better than world peace.
    This is the fallacy of ambiguity, ‘nothing’ in the first premise having a different meaning to ‘nothing’ in the second. If the courts are falling for that kind of nonsense, then it really does lead to the kind of absurdity that has already been mentioned – such as the constitutional law concerning slavery preventing the ownership of corporations.

  8. Apologies for a couple of typos in the above comments.

  9. Legal personhood isn’t natural personhood.

    Legal personhood is a concept that applies to all sorts of entities, and it should. You can make a contract with Walmart, Inc., just as if Walmart were a person. You can sue Walmart, Inc., just as if it were a person. This is legal personhood – the idea that aggregate entities – political parties, unions, corporations, partnerships, churches, partnerships, etc. – have a fictitious legal existence.

    This is a necessity. If Catholics, for example, oppose the ACA requirement of birth control, it makes little sense to make the Pope or Archbishop sue in their names – because the church itself acts in a representative capacity. If NARAL wants to defend the regulations, it make little sense to make the president sue, and then the vice president, and then anyone else who has a claim. Similarly, it makes sense that NARAL should be able to pool funds for its political agenda. NARAL should be able to purchase a billboard, for example, and then defend its free speech rights, without the necessity of involving every contributor to the organization

    NO ONE has ever said that a corporation is a natural person, or is even particularly analogous to one. Obviously, a corporation can’t make a will, it can’t sue for being injured in an auto crash. It can advance the intellectual and social and political interests of a group.

    This article doesn’t address anything at all.

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