In My Opinion’s Wake

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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41 Responses

  1. Avatar Jonathan McLeod
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    says:

    Burt, I respect that you are examining possible contradictions in your opinions, but the explanation seems too cute by half. Saying congress cannot limit speech but can limit the exercise of religion seems more like wordplay than logical reasoning.

    Now, perhaps I’m misreading you (likely), or just missing a step in your thought process (also likely), but can you expand on “there is no actor with a religious belief to exercise religion in the first place”? I can’t really parse that in the way you mean, especially since, from the way I’m reading you, speech must exist “in the first place” if it is to receive the protection that religious exercise does not.Report

    • Avatar Burt Likko in reply to Jonathan McLeod
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      says:

      For each situation, the question is does the Government attempt to control conduct beyond the limits of its power to do so.

      In the Hobby Lobby case, the Government attempts to control a corporation’s conduct by incentivizing it to buy a certain kind of insurance benefit as part of its employee compensation package. The corporation objects because it claims that mandate intrudes upon its right to freely exercise religion. But a corporation lacks the ability to hold a religious belief. Therefore, it cannot exercise such a religious belief, since it by definition has none to exercise. The government’s extension of power to control the corporation’s conduct is legal, because it does not intrude upon a religious exercise.

      Meanwhile, a natural person has a religious belief, but is not asked by the Contraception Mandate to do anything in her personal capacity. Whatever belief she wishes to exercis is not compromised. The Government does not purport to extend its power to control conduct to anything she does on her own behalf.

      In Citizens United, a corporation has the capacity to engage in speech, and does so. The Government purports to restrict that speech, but that extension of power is illegal, because Congress shall pass no law restricting the freedom of speech.

      I’m sorry if you think this is playing word games. To me, it’s not; it’s a matter as serious as a heart attack. The Constitution is a delegation of power from the people generally to the Government. The people only gave limited powers to the Government and tasked the judiciary with the role of watchdog to keep the Government’s exercise of that power within those boundaries. Such is the foundation of our liberties and the structure of our Constitution. I do take that quite seriously.Report

      • Avatar Jonathan McLeod in reply to Burt Likko
        Ignored
        says:

        Sorry, Burt, I wasn’t trying to say you didn’t take it quite seriously.

        If I’m to understand your explanation here, your argument is that corporations can engage in speech, but they cannot have religious belief/expression thereof. Am I understanding you correctly?

        If I am, I’m still unsure how you get to a place where corporations may participate in speech but not in the exercise of religion… other than saying that the laws of corporations say that they can in one instance (speech) but not another (religion). Though this is perhaps correct, it still seems quite circular to me.Report

      • Avatar Burt Likko in reply to Burt Likko
        Ignored
        says:

        Let me approach it this way. It’s a threshold question of capabilities.

        A person, any person, has the right to marry a spouse of the same gender. I believe that you and I agree on that much. So how might a person, who also happens to be a corporation, exercise that right?

        If the answer is that it is a practical impossibility for a corporation to exercise this right, then a law restricting the right of a person to marry a person of the same gender does not affect the corporation in the first place. Therefore, a corporation lacks the ability to challenge a law purporting to restrict the right to marry.

        In my view, a corporation has no more ability to get married then it has the ability to hold a religious belief. It’s not a matter of a legal restriction on the corporation, it’s inherent in the nature of being a corporation.

        But, a corporation does possess the ability to engage in acts of speech. As a practical matter, acting through its officers and employees, a corporation can say things to other people. Because a corporation has the practical ability to engage in speech, it enters the Everina where it’s speech might be regulated. Once in that arena, it can stand up to the government and say this or that speech ought not to have been regulated and the government can reply no it should have been, and a court can decide which of the two is correct.

        As a default, the government lacks the ability to restrict speech. Of course, sometimes it can. But, when the government attempts to restrict speech, it must demonstrate a very good reason for doing so. And I have great difficulty conceiving of a situation which the identity of the speaker is a good enough reason.Report

      • Avatar j r in reply to Burt Likko
        Ignored
        says:

        The difference is that speech is an act and religious belief is a belief. That is religious belief is something held in the hearts and minds of individuals. A corporation can act, but it cannot hold a belief. That seems quite plainly true.Report

      • Avatar kenB in reply to Burt Likko
        Ignored
        says:

        “But a corporation lacks the ability to hold a religious belief. ”

        Doesn’t a corporation just as equally lack the ability to hold a political opinion? The speech of a corporation is just the expression of the thoughts and opinions of its natural-person representatives, no?Report

      • Avatar Jonathan McLeod in reply to Burt Likko
        Ignored
        says:

        Hi Burt, that explains it much better for me.

        So if (and I stress if*) a corporation could have a religious belief (and/or expression thereof), then maybe it could challenge the contraception mandate (or other laws possibly restricting religion). Would that jibe with your views on the matter?

        *Let’s just go with it, whether you or I or anyone agrees with itReport

      • Avatar Burt Likko in reply to Burt Likko
        Ignored
        says:

        @jonathan-mcleod yes, if a corporation could hold a religious belief, then it might be able to exercise that belief somehow (through adoption and enactment of a policy or a bylaw, perhaps) and then it would have standing to make a Free Exercise claim.

        I allowed for that possibility in a footnote to part II of my opinion, musing about a church or the equivalent thereof.Report

      • Avatar Burt Likko in reply to Burt Likko
        Ignored
        says:

        @kenb I assure you that it is possible for a person to say something that is not congruent with his own opinions. I am obliged to do precisely that in my professional life whenever my client insists on pursuing a legal right contrary to my advice.Report

      • Avatar Mark Thompson in reply to Burt Likko
        Ignored
        says:

        I think this is the easier way of explaining it: the First Amendment protects speech, full stop. The speaker is irrelevant – any act of speech is protected, regardless of whether there’s even a belief underlying it and regardless of the motive. Speech doesn’t cease to be speech if it’s written on corporate letterhead.

        But the protection for the exercise of religion is both broader and narrower. Broader in the sense that it potentially protects any conceivable action, whereas the speech protection only protects the act of speech. But narrower in that those actions are protected only insofar as they have a religious motivation, and only natural persons can have motives.

        This is why I couldn’t bring myself to recognize HL itself as having a free exercise claim even though Burt and I disagreed as to whether the Greens could themselves have a free exercise claim based on the regulations directed at HL.Report

      • Avatar Jonathan McLeod in reply to Burt Likko
        Ignored
        says:

        Thanks, Burt. My main reason for pursuing this was just to make sure that I understood your opinion correctly, not to pick apart your opinion.Report

      • Avatar Burt Likko in reply to Burt Likko
        Ignored
        says:

        No worries, @jonathan-mcleod !Report

      • Avatar Michael Cain in reply to Burt Likko
        Ignored
        says:

        I think this is the easier way of explaining it: the First Amendment protects speech, full stop. The speaker is irrelevant – any act of speech is protected, regardless of whether there’s even a belief underlying it and regardless of the motive. Speech doesn’t cease to be speech if it’s written on corporate letterhead.

        I think the difficulty arises when the corporate speech becomes merely the opinion of the shareholders, directors, or whatever. When Wal-Mart speaks against inheritance taxes (by funding a PAC whose sole issue is abolishing such taxes), that’s not Wal-Mart speaking, that’s Sam’s kids trying to avoid giving the government a few billion dollars when Mom kicks off.

        I accept that in a coal-mining corporation, the officers and board have a fiduciary duty to the shareholders that might include spending corporate income to lobby against regulations on sulfur dioxide emissions. But so far as I can tell, the courts haven’t limited corporate speech to matters in which there is a connection between the speech and purely corporate interests; they’ve turned corporations into vehicles for financing the personal political opinions of the owners, directors, and managers.Report

      • Avatar Mark Thompson in reply to Burt Likko
        Ignored
        says:

        @michael-cain That’s not correct, actually. The courts have very much left open the possibility that political campaigning could be a breach of fiduciary duty giving rise to a shareholder suit. Indeed, the majority in Citizens United explicitly defended itself against concerns about the effects of its decision by stating that “There is, furthermore, little evidence of abuse that cannot be corrected by shareholders “through the procedures of corporate democracy.””

        There is a question of how difficult shareholder suits are to win in practice, but that’s a broader issue rather than an issue specific to corporate political campaigning.

        Keep in mind that the campaigning that has drawn the most fire in the wake of Citizens United and that has been by far the greatest source of increased campaign spending has primarily (if not almost entirely) come via closely held businesses like Koch Industries rather than publicly held companies.Report

      • Avatar kenB in reply to Burt Likko
        Ignored
        says:

        @burt-likko I do see the distinction, but it still leaves us in an odd place — the government is not allowed to restrict HL as a corporation from advancing the religious interests of its members via speech, but it can force HL to act against the religious interests of its members in ways that don’t impinge on speech.

        So under your construction, could the government, say, pass a law forcing all corporations to donate money to Planned Parenthood (or going the other way, to Focus on the Family)?Report

      • Avatar Burt Likko in reply to Burt Likko
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        says:

        @kenb no, because that would be compelling speech, something else the government lacks power to do. But the government does in reality collect tax dollars and given them to private charities, and even particular religious institutions, ostensibly to support their charitable work, and the Supremes have in effect given this practice their blessing by saying no one has standing to challenge it.Report

      • Avatar Jim Heffman in reply to Burt Likko
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        says:

        “no, because that would be compelling speech, something else the government lacks power to do.”

        But paying a tax isn’t speech. (using here the Roberts reasoning that “anything the government does that involves private entities disbursing money at the government’s direction is a tax”).

        “…the government does in reality collect tax dollars and given them to private charities, and even particular religious institutions, ostensibly to support their charitable work, and the Supremes have in effect given this practice their blessing by saying no one has standing to challenge it.”

        That’s because the taxes are distributed as part of the government budget, and subject to the myriad negotiations and choices that are part of that budget. And, presumably, if citizen taxpayers don’t like how that budget is being distributed, they have a means to change it by contacting their legislators (or choosing new ones at the next election.)Report

      • Avatar Michael Cain in reply to Burt Likko
        Ignored
        says:

        Keep in mind that the campaigning that has drawn the most fire in the wake of Citizens United and that has been by far the greatest source of increased campaign spending has primarily (if not almost entirely) come via closely held businesses like Koch Industries rather than publicly held companies.

        Oh, absolutely. And unsurprisingly, since the officers/boards of publicly traded corporations are much less likely (IMO) to consider corporate funds as “their” money. I suppose the two aspects of the thing that offend my sense of fair play are that (a) the court hasn’t provided any real guidelines as to how closely held the business has to be (have they?) and (b) would Congress and/or the state legislatures have extended the same tax and liability policies to closely-held corporations if they had known then what the courts have decided now.

        In an e-mail to Burt a couple of weeks ago when I said that I thought the Hobby Lobby case deserved some time here, I also said that I suspect we will see liability cases in the future against closely-held corporations that put forward the legal theory that if the owners and the corporation are so closely entwined that religious and political beliefs can flow one way, then surely they are so close that liability must flow in the other direction.

        Just for the record, I am not overly concerned about unlimited political speech (so long as there are no tax shenanigans going on) — the rich will find a way. I do find the insistence on unlimited anonymous political speech/spending concerning, because it encourages tax shenanigans. Although I suppose the simple solution to that is “Buy all the political speech you want — with after-tax dollars. It’s not an allowable expense/deduction.”Report

      • Avatar Mark Thompson in reply to Burt Likko
        Ignored
        says:

        For purposes of speech, I don’t know why there would need to be a legal distinction between whether it’s a closely held or publicly held corporation. The issue is whether there’s a fiduciary duty to the other shareholders being violated. If you only have three shareholders and they all agree on the speech, then there’s no fiduciary duty to be overly concerned about so as a practical matter there’s no basis for a shareholder suit. If you’ve got three shareholders and two of the three have serious objections to the corporate speech and think that the third shareholder is just using corporate proceeds to advance his personal agenda over their objections, then they presumably have no less of a basis for a shareholder suit than a shareholder in a publicly held company. It’s just that the more closely held a corporation is, the less likely there is to be a diversity of opinion that might give rise to a shareholder suit.Report

      • Avatar Road Scholar in reply to Burt Likko
        Ignored
        says:

        This doesn’t seem quite right to me, @burt-likko . The Court has long held a distinction between types of speech and between speakers. Commercial speech in particular has been subject to regulation of various kinds. And corporations have even been compelled to speak in ways that are contrary to their natural interests, like the health warnings on tobacco products.Report

  2. Avatar RichardS
    Ignored
    says:

    This post and the series on HL spell out for me some of the problems I have with the concept of corporate personhood. From the inside, corporations are fiefdoms where the board can exercise almost absolute control over the lives of it’s employees, extending beyond working hours. That makes corporations autonomous beings whose reach is beyond that of the government. I know the libertarians and cons will scream that you can always leave that employment, but that would be cold comfort if you’ve ever lived in a one company town.

    Meanwhile, corporate entities mostly exist to shield owners from personal responsibility from the consequences of the actions of the Frankenstein monster they hold and control. Must be nice to have it both ways….Report

  3. Avatar J@m3z Aitch
    Ignored
    says:

    Thought-provoking.

    It all seems to turn on two questions.

    First, whether the corporation is effectively the person(s) owning/running it–whether they are identical or distinct. I agree that for some legal purposes, they are distinct. But I think Mark demonstrated that for some purposes–in the case of closely held corporations–they are not. If so, that would mean that rather than just declaring that the corporation and person(s) is/are distinct, we would have to investigate the question of whether in this particular capacity they are distinct.

    Do we have clear case law definitively establishing the answer to that question, either pro or con?

    I admit to being very leery of your approach, because I don’t see anything limiting the application of the rule to churches, or even to non-profits in general. By your logic, a church can’t have religious beliefs. So the Fundamentalist Bible Baptist Four Square Church in Honor of the Holocaust of the Unborn could be required to pay for abortificants. To get me on board–if you happened to find that a pressing concern–you would need to clarify a limiting principle. If you did in your opinion and I missed it, my bad.

    The other question is, as @j-r rightly notes, the distinction between belief and practice. You say that corporations can’t hold beliefs. As a methodological individualist who disparages the attribution of human qualities to groups, I fully agree. However, what the First Amendment specifically protects is practice, not belief. You and I are in agreement that corporate speech is a practice, but are we sure that corporate religious exercise is not a practice?

    One might say it can’t be a practice, because it does not stem from the corporation’s beliefs (because as a non-human, it is not capable of belief). But what about speech? Is speech different from religion in that it is wholly separate from the concept of belief? That’s a tempting thought; there seems an element of logic to it (we know people sometimes say things they neither mean or believe, and yet we protect that speech as well). But can a person not exercise a religious practice without belief? If I am a private atheist who attends Mass because the ceremonial nature soothes my troubled mind, and the government forbids the serving of communion, would we say my rights to free exercise of religion are unhindered? I can see where logically we might say yes, but in law it might be more difficult.

    Overall, I think I find this issue troubling because the fundamental nature of the free exercise clause–as we have traditionally conceived of them in the U.S., anyway–is somewhat at odds with the grant of regulatory authority to the government. The constitutional language is: “Congress shall make no law…prohibiting the free exercise of religion.” Quite evidently the intentional prohibition on free exercise is forbidden. But does it cover unintentional prohibitions? I think, logically, it must, because in general (at least in theory–4th amendment excepted) we take a hard look at unintentional infringements on fundamental rights (which brings to my mind my deep dislike of the Smith decision, but I’ll avoid that tangent for now).Report

    • Avatar Burt Likko in reply to J@m3z Aitch
      Ignored
      says:

      It might be the case that even an explicitly religious entity, say, the Roman Catholic Archdiocese of New York, does not inherently possess religious beliefs or inherently engage in religious practices. Perhaps only its employees, directors and officers do.

      I’m not quite sure how I feel about that yet. I didn’t think I needed to resolve that issue in order to address the contentions made in the Hobby Lobby case.Report

  4. Avatar Tod Kelly
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    says:

    One of the most fascinating parts of the whole Ordinary Courts exercise — other than how super-space-awesome it was — is the degree to which it exposed the subjectivity involved in the interpretation of law, despite law’s reputation for being a cold, calculating and logical thing.

    There was really never a doubt in my mind, to list two examples, that you were going to find against corporations having religious rights or that Tim was going to find firmly in favor of Hobby Lobby. And there was likewise never a doubt in my mind that each of you would present a rational, thoroughly reasoned, dispassionate and logical argument – based on the cold truth that is law — as to why you were each doing so.

    This is in no way a criticism — I think SCOTUS does the exact same thing, and they are always (I’m assuming) among the top legal minds in the country at any given moment.

    But watching this occur here, in OT, revealed to me a wee bit of the man behind the curtain, if you will.Report

  5. Avatar Jim Heffman
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    says:

    I submit to you that had the Greens been aware that choosing to do business under the format of a corporation would lead to this kind of issue, they would have chosen a different method of organizing themselves into a business entity.

    I further submit that this case, no matter how it comes out, is one of those things that will make people right on the edge of turning a hobby into a business say “you know what? It’s not worth it.”Report

    • Avatar Patrick in reply to Jim Heffman
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      says:

      I submit to you that had the Greens been aware that choosing to do business under the format of a corporation would lead to this kind of issue, they would have chosen a different method of organizing themselves into a business entity.

      I’m not sure that’s a problem.

      (Indeed, if that solution is all that easy, I’m not sure that reflects all that well on the credibility of the Green’s case.)

      I further submit that this case, no matter how it comes out, is one of those things that will make people right on the edge of turning a hobby into a business say “you know what? It’s not worth it.”

      If this is the sort of chip that tips the scales for somebody… I got news for you brother, they just saved themselves a whole lotta heartbreak and most of their startup cash, ’cause they weren’t very likely going to be running a business very long anyway.

      That aside…

      I will say I’m totally on board with lowering the barriers to starting new businesses… it’s one of the reasons I don’t like PPACA in the first place. I think the two biggest barriers to new, small business are (a) the structural advantages we give big ones and (b) the nonexistence of transition support for people who are part of the labor force and want to move to entrepreneurial life.

      For the problems with PPACA (and there are many) it does actually provide some support for (b).Report

      • Avatar Jim Heffman in reply to Patrick
        Ignored
        says:

        Well, yes, I guess if running a business means the government can force you to directly participate in behavior you believe is unjustifiably immoral, then I could see a lot of people deciding that the principled choice is to not run a business.Report

    • Avatar zic in reply to Jim Heffman
      Ignored
      says:

      The Greens could completely turn their business over to a church or other organization. They could do so with the stipulation that they continue running it, or whatever other terms they chose to negotiate. This is planned development, the man who once did the for the Mt. Washington Weather Observatory (my sweetie used to work at the summit). once at margarita night on the summit — employees, family, and friends only — the man who did this charmingly told me he “waltzed old ladies around the dance floor for their money.” There are experts at it this all over the place, including the group behind the legal challenge.Report

  6. Avatar Stillwater
    Ignored
    says:

    Burt, I like this analysis, especially since, intuitively, it seems to me that there is a fundamental difference between speech and religious exercise which we want our decision making to reflect. For my part, I come at this stuff from a different direction such that when I analyze arguments distinguishing the limitations imposed on congress I’m a bit perplexed as to how that intuitive distinction is maintained with respect to corporations.

    For starters, I tend to think that the language of the first is structured in such a way that teasing out a distinction in the types of limitations it imposes isn’t justified. (You haven’t argued that it is.) By saying that I don’t mean to suggest suggest that any one interpretation is correct, but only that consistency sortamaybe requires interpreting the relevant restrictions as having the same scope. Eg, if speech is protected fully generally irrespective of the type of entity engaging in that action, then free exercise ought to be protected fully generally irrespective etc as well. Likewise, if the viwe is that only speech of natural persons is protect, then ditto for free exercise protections. So accounting for how the provisions in the first might differentially apply to corporations in one case but not in the other seems like a mistake to me. And if we think there is (or ought to be) a difference in application then it can’t (perhaps!) be found there.

    To sorta further that point, I don’t think that a distinction between speech and free exercise, cashed out in terms of actions and beliefs, makes mush sense either. Speech is deemed political if it expresses political beliefs; free exercise of religious practices requires beliefs that those practices are sacred (or fill in the blank). So in each case, the relevant actions require the requisite beliefs. Further, and I think this is correct but I could be wrong, the substance of the first amendment has nothing to directly with beliefs (except by entailment) and is limited to legislation which restricts or prohibits certain types of actions: those deriving from political beliefs and those deriving from religious beliefs.

    And finally, I’d say that there is no tenable way to hold that a corporation can hold political beliefs and deny that it holds religious beliefs since there is no relevant difference between the types of beliefs we’re talking about here. (And I mean this to apply irrespective of whether corporations can or cannot hold beliefs.) What would the distinction rest on such that there’s a fundamental difference between holding (and acting on) a political belief which doesn’t apply equally to a religious beliefs? If I were bolder and more confident about this view, I’d use the example of a corporation holding religious beliefs as a reductio on the idea that corporations can hold any beliefs. It seems a very compelling argument to me. But that’s not what I’m arguing right now so I won’t do that! Instead, I’ll only point out that if someone were to try to sustain a difference between religious and political beliefs such that corporations can have and act on one but not the other, I’d want to see the argument.

    So…

    But for this to be meaningful, religion must be exercised in the first place.

    I would submit that this is true, but equally true of speech. I’m not sure I understand the reasoning in the short paragraph you provided, but it seems to me you’re saying that a protection of religious exercise requires the actual existence of religious practices while speech protections can remain theoretical. (That could be an incorrect interpretation of course.) But why think that? It seems to me that a protection accorded political speech requires actual, non-theoretical political speech, else why would the protection be accorded? Alternatively, if the claim is that political speech could be theoretically justified (by a priori reasoning, say) then why not think that religious exercise couldn’t also? I dunno. Maybe I’m splitting hairs too finely at this point, but it seems to me that religious exercise requires religious beliefs and practices just the same way political speech requires political beliefs and actions.

    And all *that* said, cutting the ice one way or the other leads to bad outcomes. I could outline them but the permutations get too complex and this comment is long enough already. My best guess tho, insofar as what I’ve written is correct, is that pragmatics plays a pretty huge role in resolving and justifying the types of concessions we make to thread all these very tiny needles.Report

    • Avatar Burt Likko in reply to Stillwater
      Ignored
      says:

      So that means that bad facts make for bad law?

      Let me suggest that there is no difference between political speech and non-political, or at least less, even from the perspective you outline. Why should a science fiction movie be protected from governmental censorship less than a pundit’s unhinged screed? Certainly from my rights-are-limitations-on-powers perspective, they are both presumptively beyond the ability of Congress to regulate.

      I see the intellectual consistency in saying that a corporation is as incapable of speech as it is beliefs, required as it is to act if at all through human agents. For my way of thinking, I need neither agree nor disagree with the statement.Report

      • Avatar Stillwater in reply to Burt Likko
        Ignored
        says:

        I agree that you can remain silent about that issue, yet you maintain a distinction in the two types of actions to which the restrictions apply such that they apply differently.

        All I’m saying is that I’m not sure at all that a principled distinction can be maintained and that our intuitions for supporting such a distinction resolve to pragmatics. And I’m not even sure about that, really. I just don’t see any substantive or principled differences between the two types of actions – speech or religious exercise – upon which the distinction rests. You can of course argue that protections against restrictions on speech are fully general because we as a matter of fact treat it as fully general whereas we might be (and in some sense are) disinclined to so treat restrictions applying to restrictive religious exercise. But why that distinction is maintained is exactly what I’m questioning given the wording of the first amendment. I’m still not seeing it.Report

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