a court gone wrong

It is now something approaching settled law in the United States that corporations possess “personhood.” Corporations possess the right to freedom of speech and now, thanks to the Hobby Lobby decision, possess the right to a religious conscience and the right to exercise that religious conscience free of government interference.

I have to assume that corporations have the right to keep and bear arms and all the other rights granted to citizens of the United States under the provisions of the United States Constitution and the various states of that union. Corporations already receive compensation when they are required to quarter and/or equip soldiers (BOR Amendment 3), are protected against unlawful search and seizure (BOR Amendment 4), protected from unlawful prosecution (BOR Amendment 5), have a right to a speedy trial and all the rest (BOR Amendment 6), have a right to trial by a jury (BOR Amendment 7), and, though I know of no case where a corporation has been arrested and incarcerated, it, no doubt, has a right against excessive bail and against cruel and unusual punishment. In short, corporate personhood is a matter of settled law.

hobbylobbyWhat has not been adequately defined is how is the conscience of the corporation is defined and determined. In Hobby Lobby the court made much of the sincerity of the religious beliefs of the Greene family (primary owners of the corporation) and stated that sincerity is an important element in deciding if the religious belief rises to the ability to overturn federal and state law when such belief and the law clash. I do not see how a federal judge is to decide what constitutes a sincere belief and what constitutes an insincere one. After all, federal judges aren’t able to define pornography, how are they to gaze into the soul of a corporation and determine the sincerity of it’s beliefs. Beyond that, however sincere my belief may be, how is a judge to determine if that belief is based upon a religious principle and not some cultural norm? For instance, I absolutely believe that hamburgers are better than hotdogs but, as far as I know, this belief is not divinely inspired. On the other hand, a Jew or a Muslim holding this same belief may do so, at least in part, based upon the religious belief that pork products are unclean, unhealthy and unholy. Therefore, based upon religious belief, beef hamburger or lamb burger is far better. If I say my preference is based on my belief in the Old Testament, how is the judge to know whether I am just saying that to achieve my secular bias?

It seems to me that in order to determine the sincerity of a corporation’s religious belief, the judge must first isolate and examine the conscience of the corporation. How is the consciene of the corporation formed? Who forms it? It is one thing to say the Greene family has control over the day to day operations of their company as well as the longer term strategies for the future. The governing board of Hobby Lobby selects the management team, and they project the owner’s policies for operation down through the corporation where the policies are carried out by the employees.

But, a conscience is a different matter. I have been told Hobby Lobby employs some 120,000 humans. In addition, Hobby Lobby operates across the nation 575 stores as of July 2014. I don’t know how many different communities host a Hobby Lobby store as some have more than one. However, all the stores serve a general public, each individual of which has a stakeholder interest in the corporation. So, in addition to the majority owners of the corporation, there are untold millions of customers and tens of thousands of employees who comprise the corporation, not who own it, but who comprise it. How does a federal judge determine the collective conscience of all these de facto as well as de jure persons?

Indeed, how does the judge even begin to determine what population of persons make up the collective that legitimately projects this corporate conscious? Can two, five, 50, 500,000 owners be said to legitimately project the conscience of a corporation when there may be many times, perhaps orders of magnitude more persons comprising the population of legitimate and crucial stakeholders in a corporation? I know of no statutory law that states what population of persons comprises the body of persons with the sole right to project a corporation’s conscience. In the absence of such statutory definition, how is a judge to determine it?

Even it there was a way, in the absence of statutory guidance, to define the body of persons capable of projecting the conscience of the corporation, how is that projection to be divined? In the absence of a statute laying out the procedure for such divination, how is the judge to proceed? This is such uncharted territory that every judge is free, indeed is required, to follow his or her own logic, his or her own intuition in the matter. The Supreme Court gave no meaningful guidance in either Citizens United (the Corporations have free speech case) or Hobby Lobby.

This is Dred Scott 2.0, a Supreme Court decision so faulty and fraught with peril as to undermine the foundations of the republic. The five good Catholic boys who rendered this abomination against the rule of law and the good name of religion and God have unleashed a knife ripping through the fabric of the nation’s body politic.

It will not take long for legislatures to begin the work of defining all this as a way of making the definition of the population empowered to project the conscience of the corporation and to establish the procedure by which the conscience is determined for legal purposes. I don’t know about you but I just can’t wait for the General Assembly of South Carolina to take up that issue. We almost could not settle on an official state fossil because some brain dead senator decided the entire effort was an attempt to disrespect the creation myth in Genesis. Imagine how much delight we will offer the rest of the nation as we debate issues related to the divine conscience of corporations. Jon Stewart will coast into his retirement years on this.

It is entirely possible that few, if any legislatures will be able to craft such laws. In the meantime, what happens to the deluge of lawsuits that will flood the courts as the greedy bastards of the world use corporations to gain political and commercial advantage for this company or that company?

In backing away from the solutions to problems and obstacles to governance that sincere philosophical differences impose, and have since the birth of the republic, the Supreme Court may have unleashed the hounds of hell upon the nation. Some of these issues of conscience are not soluble and, to continue as a going concern, there has to be a son of a bitch in charge. Until recently, the SOB in charge had been the congress and president. Now, the Supreme Court, whether or not they intended to do so, has said “it is every corporation for itself.”

The Roberts court, like the Taney court before it, has done something much worse than commit a crime. The court has done the truly stupid thing. It has issued an unintelligible decision with which the nation cannot cope.

The decision in Gore vs Bush was an international infamy. In Burwell vs Hobby Lobby, the court has done much worse. The nation survived the Presidency of George W. Bush. Granted we suffered greatly and will do so for at least another generation. Granted, the world has been plunged into a worldwide religious war as a result of Bush’s megalomania and ineptitude. Even so, the nation survives. This ruling has left us with no way to reconcile short of long and discordant, perhaps even violent, struggles between neighbors, friends and family members.

Regardless of your political beliefs or your religious beliefs, Hobby Lobby was a stupid, stupid decision made by five arrogant men who put politics and their own religious beliefs above the rule of law they were sworn to protect. They deserve the shame history will visit upon them.

Mike Copeland

Mike Copeland

I am old enough to know better. I have a B. A. from Birmingham Southern College and a Master's in City Planning from Georgia Tech. I have worked in SC State government for over a decade leaving as the Deputy Executive Director of the State Budget and Control Board, the state's administrative agency. I have owned the Fontaine Company since 1984 and am the managing member of viscerality.com.llc a management, marketing and consulting company.

I am the author of several novels, some of which you may buy and read if you are of a mind to do so.