The Corporation at Prayer (and Other Things)

Last week Colorado and Montana passed citizen initiatives stating that corporations are not entitled to constitutional rights as people — a response to the Supreme Court’s Citizens United decision, but also to a longer history of vesting various rights in corporations.

It was thus something of a surprise to encounter today a reference to a new paper by Ronald J. Colombo, The Naked Private Square, which argues that,

Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.

Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.

I have a lot of sympathy for the impulses that animate the corporations-are-not-a-person movement, but I’m a little uncomfortable with absolutist ideas about how to implement it. For example, simply saying that corporations do not have First or Fourth Amendment rights as an entity should not imply that the people working in them check their rights at the door either.

Similarly, the entity has legitimate needs for some rights-like legal guarantees if only to serve the legitimate interests of its owners and employees. Would due process still apply? I hope so. How about the right to counsel? Again, that seems like a necessity, doesn’t it?

I suspect that just removing all current protections would not work at all well; some sort of statutory code of intermediate protections would be necessary to replace the current framework. There’s a lot of work waiting to be done mapping out how wide swaths of law relating to speech, to search, and no doubt many other things, would and should work if we were to treat the corporation-as-entity as outside the protections of the bill of rights.

(Article spotted via Larry Solum.)

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8 Responses to The Corporation at Prayer (and Other Things)

  1. CAVW says:

    What exactly is Colombo suggesting? That a corporation should be entitled to adopt a religion? If that is so, wouldn’t that actually create the danger of people checking their First Amendment rights at the corporation’s door because they would be subject to whatever belief makes up the corporation’s religious persona?

    If Colombo is simply suggesting that people should be allowed to practice their respective religions at their corporate place of work, then I fail to understand how that would create a distinct religious persona for that corporation.

  2. William Allen Simpson says:

    Without reading more than the abstract, I suspect what Colombo is suggesting is the right of corporations to employment and services discrimination based on religion. For example, a corporation could exclusively hire roman catholics and refuse to dispense contraceptives. Or could serve only white southern baptists or other white right-wing evangelicals. There’s a good reason that most towns have 2nd Baptist and/or AME churches.

    For some unknown reason, conservatives arguing the “freedom” of religion mostly want a restriction of the religious freedom for others.

  3. CAVW says:

    Such a practice would directly infringe upon an individual’s Fourth Amendment right though, wouldn’t it? It seems odd to me to depict the right to discriminate against potential employees based their religion as a consequence of the Fourth Amendment. I can’t find a way to reconcile individual protection from religious discrimination with the protection of Fourth Amendment rights to corporations. But I, too, have only read the abstract.

  4. CAVW says:

    Having read only the conclusion of the paper, I understand that Colombo would consider an extension of Fourth Amendment religious rights to for-profit corporations as in fact protecting religious rights of the individual. He sees a problem with forcing individuals to shed their religious identity upon entering their place of business, and considers the “failure to recognize the religious liberty rights of the business corporation [equal to a] failure to fully recognize the religious liberty rights of flesh-and-blood human beings.”

    To me, this seems to be predicated on the assumption that there will be a religious corporation for everybody. What if I practice Asatru? Assuming that few corporations endorse the same nordic gods, I would be forced to join a corporation that holds out a religion different of mine – in the unlikely event that it would even hire me. It seems much more egalitarian for me to, along with everyone else, leave my religious identity out of the workplace.

    But, I’m probably biased as I don’t practice a religion, so I have nothing I could possibly gain from an intrusion of religion into the private sector.

  5. Earl Killian says:

    Here’s my proposal for dealing with Citizen’s United:

    The Federal government should pass legislation requiring corporations engaged in interstate commerce to have a Federal charter. State-chartered corporations would have to re-incorporate under a new Federal corporate law, enacted for this purpose. The Federal incorporation law would specify what rights Federal corporations have and don’t have (hint: political activities would not be one of them). If the SCOTUS were to overturn this law, then it would be time for a constitutional amendment empowering Congress to define the rights of corporations.

    The founders specifically left corporations to the states because the states could better regulate them. That was in the days when charters had to be granted by an act of state legislature, and the charters had limited lifetimes and limited purposes. That all ended when the railroads bought the Pennsylvania legislature and changed the rules, starting a race-to-the-bottom between the states for the least onerous incorporation rules. A Federal charter requirement for interstate commerce would change that.

    • Vic says:

      Wow…

      Ignoring the myriad of OTHER things wrong with this idea…There is just too much law missing for Corps to suddenly become Federal entities. What law is to be applied in a contract suit? How about worker’s comp? etc. What about professional regulation (i.e. the State agency that regulates real estate brokers), does that become Federal as well? For a variety of reason, this is simply not possible nor practical.

  6. Kaleberg says:

    Basically, these goons want contracts regarding one’s religion to be enforceable. Owning one’s body and mind are not enough. They want to own one’s soul. Right now, one cannot be contractually constrained to converting to a new religion or from an old one or have remaining within a religious faith a condition of employment, save in certain occupations within a religious organization. This, needless to say, bothers certain parties who feel that commercial law places undue emphasis on the secular.

    (There was a great essay on buying heathen babies some years back. It gives some good insight into how these people think.)

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