by Barry Edelson



Are Corporations and Churches People, Too?


Who exactly is a person? One would have thought that a question so fundamental to the nature of human existence was solely the province of philosophers, or possibly, on a bad day, theologians. In any event, it is far too important a matter to leave in the slippery hands of lawyers and politicians. Nonetheless, we have been treated to a kind of public debate on the subject that is a thousand parts demagoguery to one part enlightenment. This debate has, coincidentally, encroached on both the political and theological spheres, and so portends to affect our lives in a number of unpredictable and potentially unpleasant ways. It is incumbent upon us to take the matter seriously and decide for ourselves.

First, the political. The Supreme Court ruled in Citizens United v. Federal Election Commission that a corporation, for all intents and purposes, is a person when it comes to free speech. By "speech" the court means "money", insofar as the ruling is credited with enabling corporations, in possession of excess cash that they do not see fit to reinvest in ways that would lead to higher employment, to donate large quantities of said cash instead to politicians of both parties (but one in particular) whose platforms, oddly, call quite specifically for an increase in said employment. Exceedingly wealthy individuals may also give comparably enormous sums with legal impunity in support of "free speech" on behalf of political campaigns, though some argue that such opportunities to buy political influence — or perform a solemn civic duty to the utmost ability of one's checkbook, depending on your point of view — were permissible under the law prior to this ruling.

The salient point of the court's majority opinion is that a corporation has the same right as an individual to support positions in the public square, and that to curtail that right is to run afoul of the First Amendment. In the recesses of memory there is a stirring of recollection of the espoused beliefs of a renowned economist of a decidedly conservative persuasion, Milton Friedman, who famously said that, in essence, there is no such thing as taxing a corporation, because all taxes fall on individuals. It is difficult to decipher whether the court's ruling supports or opposes this view. On the one hand, if a corporation is not an individual for the purposes of taxation, then neither can it be considered a person for the purposes of campaign contributions. On the other hand, since the corporation is owned and controlled by individuals, the activities of that corporation ought to be construed as representing the views of those individuals, and should be allowed to stand in for them in all matters legal and financial.

Perhaps Mr. Friedman's own words can shed some light on this conundrum. More than 40 years ago, in an attack on the doctrine of corporate social responsibility, this Nobel laureate wrote, "Only people can have responsibilities. A corporation is an artificial person and in this sense may have artificial responsibilities, but 'business' as a whole cannot be said to have responsibilities, even in this vague sense." So, if a corporation has no responsibilities, can it have rights? Does not having responsibilities extend so far as to assert that, if someone is killed as a result of negligence or malfeasance on the part of a corporation, though not by the hand of any single officer or as the result of any particular decision of that corporation, no one is therefore responsible? If a corporation supports an organization that produces campaign commercials, one of which defames its intended object, can the corporation not be sued for libel? Mr Friedman would seem to say no, but the court, astonishingly, seems to have taken the opposite view. Should a case testing this principle ever reach the court, it would indeed be fascinating to watch the justices contort themselves to explain the rights of corporations who have committed errors in judgment, as might individuals, in their zealous pursuit of their civic duty.

Be that as it may, we are left with legal confusion. Justice John Paul Stevens, in his dissent, noted that corporations cannot vote or run for office, among other things they cannot do. But quoting from dissenting opinions is, admittedly, the last redoubt of the losing side. The majority said otherwise, and so we are left to ponder the peculiarities of welcoming into the human family the nebulous agglomeration of buildings, equipment and personnel, not to mention the financial, legal, public relations and lobbying apparatus, that constitutes the modern corporation. Let's look in the attic to see if we have a chair big enough for them to sit at the dining room table.

My Church, Myself

If a corporation is a person in the eyes of the law, as determined by the Supreme Court, can a church also be a person? This is the argument that is implicit in the Catholic church's vociferous objections to the Obama Administration's decision to require employers to offer contraception as part of any health insurance policy. It's imperative for women's health, says the administration. It's a violation of religious liberty, responds the church. What the church is really insisting, without actually saying so, is that it, too, deserves the rights accorded to individuals.

If this line of reasoning is a stretch in the case of corporations, it is positively confounding in the case of a religious institution. The law would have to consider the church as being capable of sin, and of having an immortal soul, characteristics of personhood that even the church does not assert for itself. Consider: If a church-owned hospital offers its employees a health-care plan that covers services that are antithetical to the church's moral teachings — notably, contraception and abortion — and an individual employee makes use of those services, who exactly has committed the sin? How can the church put its soul in jeopardy when it doesn't have one? It cannot confess its sins. It cannot be condemned to damnation. It is impossible for anyone to bear responsibility for the use of these medical services except the individuals who avail themselves of them.

But, you protest, is the government not responsible if it sanctions murder? Interesting question, but it overlooks that fact that the government's obligations are entirely different from the church's. The government is bound to maintain the public order and, under the Constitution, to protect the life and liberty of its citizens from infringements thereon by the depredations of their fellow citizens. The church's responsibility, or so it claims, is entirely different: to save souls by delivering people to the gospel of Jesus Christ. But, you might continue to argue, isn't the church leading people directly into temptation by offering such services, thereby violating its own sacred principles? Perhaps, but, to put it bluntly, it is not for the church to say which medical services may be offered to the citizens of the United States who happen to be in the employ of a religious body. If a church wishes to avoid this situation, it has the option of getting out of the business of running organizations that are legally bound to employ all qualified applicants. Otherwise, it runs the risk of tacitly admitting that the object of a Catholic hospital is not to heal the sick, nor a homeless shelter to house the indigent, but to proselytize and convert people to Catholicism.

If we follow the church's logic to its conclusion, isn't it also committing a sin merely by paying an employee a salary, which the employee then uses to pay for a forbidden act? What if the employee uses his Catholic-provided salary to frequent prostitutes, or to buy a gun and commit murder — has the church committed a sin? If so, then any employer could be held accountable for the actions taken by its employees in their private lives. The suggestion is patently absurd, and would lead to social and legal chaos. The onus for any individual's action clearly falls on that person and his or her own conscience. To argue otherwise is to assert that a church, or a corporation, can be liable for criminal as well as civil consequences for their actions, a possibility that neither has likely considered in their zeal to be labeled as persons in those fields of endeavor for which such a designation happens to be expedient.

What, Me Sorry?

The aforementioned economist, Mr Friedman, also opined that a corporation's only responsibility is to make money for its shareholders. Because it is a legal construct, as opposed to a person, a corporation has no conscience as such, and therefore no obligation to perform good works. (One can only hope that he did not mean to suggest that the individuals who populate corporations are also devoid of moral responsibility.) Churches, by contrast, exist for the express purpose of doing good, at least as far as the tax code is concerned. Nevertheless, for the purposes of the nation's laws, they are also legal constructs. They have no more claim to personhood than any random assembly of individuals, gathered for any purpose whatsoever.

A church is free to declare its own supremacy in spiritual matters, and to sermonize that the sins of the fathers are visited upon the children. But there is no organizing principle more fundamental and sacred to a democracy than that of individual rights and responsibilities. Without the foundation of "one man, one vote", the entire edifice would collapse of its own weight. It is particularly astonishing that several Justices, who happen to subscribe to the Vatican's dogma on the sanctity of life, did not contemplate how the bestowal of an individual right upon a nonliving entity like a corporation not only undermines the essence of democratic government, but cheapens the very basis of their own religious convictions.

June 17, 2012


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