In his Washington Post column, Harold Meyerson reacts to the Supreme Court’s pending review of two cases involving the HHS “contraception” mandate with reflexive hostility to the claims of employers that they have a right to run their businesses in accordance with their religious beliefs. But Meyerson hasn’t done his homework, and his ideology runs away with his reasoning powers.
1. About the homework: first, Meyerson can’t even describe the position of the Green family (owners of Hobby Lobby, one of the corporations whose case is to be reviewed) correctly, writing:
For one thing, the Green family’s acceptance of some forms of contraception and rejection of others, while no doubt sincere, suggests that they, like many people of faith, adhere to a somewhat personalized religion. The line they draw is not, for instance, the same line that the Catholic Church draws.
But the Greens state no objection whatsoever to contraception, properly understood as methods for the prevention of conception–and so the reference to the “line that the Catholic Church draws” is a stupid distraction. The Greens object to abortion, and thus to the inclusion in the mandate of coverage for abortifacient drugs under the guise of “contraceptives.” And opposition to abortion is no mere “personalized religion,” as Meyerson’s foolish mockery has it. It is practically universal among Christians of every denomination who hold to the faith’s historic teachings.
Second, citing the 1990 Smith decision in which the Supreme Court declined to carve out an exemption from a generally applicable criminal statute, Meyerson writes:
Justice Antonin Scalia wrote that Native Americans fired for smoking peyote as part of a religious ceremony had no right to reinstatement. It “would be courting anarchy,” Scalia wrote in Employment Division v. Smith, to allow them to violate the law just because they were “religious objectors” to it. “An individual’s religious beliefs,” he continued, cannot “excuse him from compliance with an otherwise valid law.”
It will be interesting to see whether Scalia still believes that now that he’s being confronted with a case where the religious beliefs in question may be closer to his own.
It may be to Meyerson’s credit that he knows so little about drug abuse that he believes users smoke peyote. (As I know from the all-knowing Wikipedia, it is eaten, or a “tea” is made from it for drinking.) But that’s not the principal blunder here. Meyerson never mentions the Religious Freedom Restoration Act, the ground of the Tenth Circuit’s decision in favor of Hobby Lobby. Smith was based on the First Amendment’s free exercise clause, but RFRA (enacted in 1993) provides a statutory basis for exemptions from federal laws. As the Supreme Court showed in the unanimous Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal case in 2006, it is perfectly capable of deciding RFRA cases without disturbing Smith. So Meyerson’s attempt at a preemptive “gotcha” of Justice Scalia is decidedly feeble.
2. About the ideology: Meyerson harrumphs at length about corporations being treated as “persons” under the law. Citizens United comes in for the usual abuse, for deciding that corporations have free-speech rights under the First Amendment (a constitutional provision that does not mention “persons,” by the way). But Meyerson can’t seem to decide whether he wants corporations to be treated like persons or not. He writes:
Where does this corporations-are-people business start and stop? Under the law, corporations and humans have long had different standards of responsibility. If corporations are treated as people, so that they are free to spend money in election campaigns and to invoke their religious beliefs to deny a kind of health coverage to their workers, are they to be treated as people in other regards? Corporations are legal entities whose owners are not personally liable for the company’s debts, whereas actual people are liable for their own. Both people and corporations can discharge their debts through bankruptcy, but there are several kinds of bankruptcy, and the conditions placed on people are generally far more onerous than those placed on corporations. If corporations are people, why aren’t they subject to the same bankruptcy laws that people are? Why aren’t the owners liable for corporate debts as people are for their own?
The purpose of a corporation, and the reason personal risk is mitigated, is to accomplish more than individuals generally can without the corporate form. That often involves incurring more debt than it would ever be prudent for an individual to bear, which is why it is central to the concept of the business (or any other) corporation that owners bear a limited liability. The different standards of bankruptcy law reflect legislators’ moral judgments about how best to restructure debts in the very different situations that obtain between individuals and corporations. If Meyerson has any bright ideas for reforming bankruptcy law, he should let us know.
But this column isn’t an argument. It’s a rant. Like everyone else, Meyerson would hold a corporation responsible for any acts it undertakes that he regards as wrong. That’s fine. Then he is outraged that corporations are held to have rights under the law, akin to those of individuals—like freedom of speech and the free exercise of religion. But don’t responsibilities and rights travel in tandem?
Here’s the question Meyerson never stops to ask: when groups of persons unite in some purpose as one body (which is what “corporation” means)—including charitable purposes, religious purposes, educational purposes, business purposes, and even political purposes (for communities at every level can be considered corporations too), are they capable of acting as singular moral agents, such that we would say “the church bought property” or “the company sold cars” or “the university admitted students” or “the state purchased goods” without referring to the acts of individual natural persons?
If the answer is yes, that many natural persons joining together in the corporate form can become one moral agent, then it follows that the corporation is as capable of being a holder of rights as it is a possessor of duties. Meyerson would like to live in a world, it seems, in which corporations have moral and legal duties but no moral or legal rights. Quite apart from the impracticality of the world he imagines, this is a deeply defective moral vision.