Should corporations have religion?: Chris MacDonald

How would that affect mergers?

 
(Justin Sullivan/Getty)

(Justin Sullivan/Getty)

Last week, the U.S. Supreme Court heard oral arguments in an important pair of cases, namely Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius. Hobby Lobby and Conestoga are companies that want to be allowed to opt out, on religious grounds, of the U.S. Affordable Care Act’s requirement that employer health plans pay for contraception. The First Amendment to the U.S. Constitution, after all, forbids the government from passing laws that restrict the free exercise of religion, and the practice of some religions includes refusal to engage in (or, apparently, to promote) the use of certain forms of birth control.

(Set aside for now the apparent hypocrisy implied by the fact that Hobby Lobby apparently invests some of its 401(k) employee retirement plan’s money in the pharmaceutical companies that produce the very contraceptives that Hobby Lobby is so hell-bent on avoiding paying for.)

The cases before the court seem to hinge on the question of whether corporations can have religious beliefs. For some, the answer is obvious. The corporation, they say, is “merely an inanimate vessel,” and as such it cannot have beliefs or exercise a religion. But as Kiel Brennan-Marquez rightly points out, it is of course possible for corporations to be religious, because we have an entire category of religious corporations called churches, whose entire raison d’être is religious and who are given special treatment on that basis. The question, then, is really whether for-profit corporations like Hobby Lobby should enjoy the same protections that non-profit corporations like the Catholic Church enjoy. The key difference, for Brennan-Marquez, is that a church—as a not-for-profit—cannot be owned. Because a corporation can be owned, and because its assets are therefore transferrable, attributing a religion to a corporation would raise thorny questions in cases of corporate acquisitions, mergers and so on.

More to the point, perhaps, is the question of instrumentality. As I argue in a forthcoming paper in the Georgetown Law Journal, there are cases in which we should think not in terms of the rights the corporation should enjoy, but in terms of the appropriate limits to be placed on the corporation, understood as a tool for achieving human objectives.

Now, there are cases in which it may be genuinely useful to think in terms of the corporation itself as having rights. The interests of corporations are not always directly reducible to the sum of the interests of its various stakeholders. But in other cases, it is more illuminating to think of which legal protections are necessary to protect the rights of persons who make use of the corporation as a way to carry out their own objectives. In such cases, the legal protections that the corporation should have are just those necessary to protect the human beings involved.

So, consider the difference here between a church and a for-profit corporation. A church just is an instrument for engaging in the exercise of religion. People form churches in order to express their religious beliefs and carry out their religious commitments; failure to allow religious freedom to a church is a failure to allow religious freedom to the people who make it up. A corporation, on the other hand, is many things to many people: an investment, an employer, a supplier and so on. And it will only be in rare cases that the exercise of a single religion is a fundamental goal of a sufficiently broad range stakeholders to justify attributing freedom of religion to the corporation as a whole.

Thinking of the question this way lets us avoid thorny metaphysical questions about what sorts of things can “have” religion. If we think of the corporation (for-profit or otherwise) as an instrument or technology by means of which people seek to achieve their goals, then it becomes clear that the rights (or “rights”) of different kinds of corporate persons depend not on what kind of entity they are, but on the the demonstrable goals of the human beings involved.

Chris MacDonald is director of the Jim Pattison Ethical Leadership Education & Research Program at the Ted Rogers School of Management

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