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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6 comments on “Should corporations have religion?: Chris MacDonald

  1. Jim, your comments involve a popular and erroneous idea of what religion and churches are. Correctly speaking, religion is any idea about how people ought to live and what they ought to believe about life is best lived. A church is simply any group of people, whether assembled or not that essentially holds the same idea about how to live life best. These are the correct definitions. The government has no business making laws that restrict the practice of religions that do not advocate forcing “unbelievers” to accept their particular beliefs under penalty of persecution or death. We, the people, as a whole would not make laws that are not in our best interests as a society because we recognize that “what’s good for the goose is good for the gander.” In other words, it would be hypocritical for one person or one group of people to do to others what they would not want others to do to them. I’m sure, that the people in power would not want someone forcing them to violate their consciences and force them to support things they considered immoral or against what “God” requires of faithful people no matter what kind of business relationship they might happen to be in. Simply because someone makes a law does not, in any way, mean that the law is just or moral and all immoral and unjust laws must be resisted if freedom is to be had or maintained. We, the people, cannot allow the government to become our slave master and be free citizens at the same time. Either we, the people, are in power or the people we entrusted to carry out the duties we gave them to do will be in power over us and that would be an absurd tragedy but this is exactly what’s taking place in America.

    • David:
      Not sure who “Jim” is but I’ll assume you are addressing me. In point of face, churches are more than one thing. Yes, they are aggregations of people. But they also have independent legal (and ethical) status as entities that have rights and obligations of their own and that exist in perpetuity.

  2. This is absolutely brilliant! Congratulations on trying to revitalize the written word no texting, no email, no whatever’s next! I do not own a computer proud of being “computer free”. Maybe old fashioned, but receiving a hand written letter is heading to be so refreshing! Thank you for focusing on a rapidly declining art the hand written letter and/or note.Can’t wait to receive my first letter! Judy Robertson

  3. Township Meeting Set For Monday, Despite Road Vacation Reduce Pottsgrove commissioners canceled their last community session on April 19. They are not most likely to skip two in the row, even if the board president is on an “international tour.”