How anti-slavery law created American corporate personhood

This makes no sense. It shouldn’t apply as it stands - not because of “person vs. corporation” but because the RFRA’s main intent is to re-establish the Sherbert Test. That test first requires that the “person” seeking exclusion from a law prove two things to the court:

• whether the person has a claim involving a sincere religious belief, and
• whether the government action is a substantial burden on the person’s ability to act on that belief.

Note the word “sincere”. Since Hobby Lobby both invested in companies producing contraceptives (including those they specifically opposed), and didn’t apply their beliefs equally to the sexes (male employees are offered Viagra and vasectomies), they fail the very first question. They also weren’t given a substantial burden. When the Blunt Amendment failed in 2012, a workaround involving pooling employee payments with employer payments for insurance was developed to protect the rights of all concerned.

Even had they passed the first two parts, they still shouldn’t have won. The Sherbert Test has four total points, and the last two are required to be proven by the government - should a “person” pass the first two. In this case, the government still passes the final two parts:

• that it is acting in furtherance of a “compelling state interest,” and
• that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

Because the ACA protects Civil Rights laws, it does represent a “compelling state interest”, and as already explained, the feds already tried to work with religiously-oriented employers on this matter.

Hobby Lobby (no matter the status of their corporate personhood (CP)) should not have won this case! CP has gone bonkers, with far too much leniency given to corporations, but in this case, CP really isn’t to blame - this is simply a bad ruling.

Sherbert v. Verner, source of the Sherbert Test:

Text RFRA:

It just gets worse when you realize that use of the RFRA has, in the past, been considered unconstitutional when it was determined that the Congressional power being used didn’t meet a test of “congruence and proportionality” - because in those cases, the “Court has determined that such action must be congruent and proportional to the deprivation of the right that the Congress is seeking to remedy” So the RFRA has, in the past been trumped, and in this case, the religious desires of a few (typically same-family shareholders) owning a corporation, will suddenly be allowed to railroad the rights of all their employees - outside of their employment. Hobby Lobby currently has over 18,000 people working for them.

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Oh boy, I don’t care.

I’m not defending the analysis here, but I think I can make a couple of points that may help understand it.

First, Hobby Lobby claims that it is only against abortifacients, which they consider to include, for instance, IUDs. Thus, the fact that it provides Viagra and the like doesn’t go against this. (What does call the shareholders’ sincerity into question is that various places have reported that HL provided coverage of “abortifacient” contraceptives right up until about the time the ACA mandated that coverage. If true, this is extremely telling.)

Second, in the RFA, congress may have intended to restore the Sherbert test, but that doesn’t mean that it succeeded. Courts are a bit stubborn about going with “plain language” over expressed intent. I’m just starting to read the HL decision carefully, so I’m not sure how defensible the Court’s reading of the RFA’s language was, but I’m not at all surprised by a reading that exceeds the stated intent.

I’m still working my way through the decision; how have these things gotten so bloody long. Still, it looks very much as though amending the RFA to apply to natural persons would make HL go away. It’s very much a statutory interpretation case. I suspect that a lot of people who would be sympathetic to the amendment would want the protections to extend to religious corporations and maybe all nonprofit corporations, though. That would just mean a slightly more complicated amendment.

I’m not a big fan of the RFA’s core standard. It’s phrased to place the burden on the government to show that the a restriction on free exercise does not “substantially burden a person’s exercise of religion” or that the restriction is in “furtherance of a compelling governmental interest” and is “the least restrictive means of furthering that compelling governmental interest.” Those are pretty high hurdles.

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Their investments include companies that produce i.u.d.s.

Religious ideas of what is and isn’t consistent are… unpredictable. Far more telling if they actually paid for them before.

The investments that I’m talking about are not minor, and are current. Not only that, they are directly related to their employees. A separate thread was already devoted to this information. Their 401k plan includes $73M in mutual funds and those funds include companies producing both morning after pills and IUDs. You always have the right to selectively invest, so Hobby Lobby could have avoided these investments, had they opted to do so.

Meanwhile, Hobby Lobby, “specifically names contraceptive products such as Plan B, Ella, and IUDs as violating their religious beliefs because they work by preventing a fertilized egg from implanting in a woman’s uterus.” So, apparently contraceptives are fine for profit (as an investment must succeed to be profitable), but not for cost or use by anyone working for Hobby Lobby - even if they have different beliefs. (That’s that whole Civil Rights issue.)

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Can anyone explain how Lawrence vs Texas relates to corporate personhood? I couldn’t figure out the connection after reading about it…

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