Last week, the Supreme Court agreed to hear Hobby Lobby Stores Inc. v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius — a pair of cases probing whether the religious rights of a for-profit corporate entity allow it to refuse to provide employees insurance that would include certain forms of birth control. In so doing, the court may now be forced to reckon with the question of whether the same corporate personhood that includes the right to free speech also encompasses rights to religious conscience.
In other words, Corporate Personhood is back! And this time, it's got God on its side.
But corporations aren't America's only new people. States and the U.S. Congress are also attempting to expand the definition of personhood in a different direction. Anti-abortion activists are attempting to redefine "personhood" to include the potential personhood of a fertilized egg. If the so-called personhood bills and ballot initiatives across the country succeed, a day-old zygote would have the same legal status as a person, with sweeping implications for criminal law, reproductive rights, and access to birth control.
So pause for a moment with me to ponder: What does it mean for actual human "personhood" if the far right succeeds in stretching these two legal fictions to their illogical extremes. Will American "personhood" begin at conception, diminish somewhat at birth and regain its force upon incorporation?
A brief review: In 2010 the Supreme Court determined in Citizens United v. FEC that corporations can be treated as persons for First Amendment speech purposes, although the notion of corporate personhood certainly long predated the case. It certainly celebrated the notion that corporations have complex moral, political and social needs that must be expressed in the same ways as the rest of us, you know, human beings.
There is almost no way for the Supreme Court to analyze the Religious Freedom Restoration Act claims or the First Amendment claims raised in the two challenges to the birth control mandate without contemplating the prospect of corporate personhood. Certainly the two religious families that own the businesses challenging the birth-control mandate argue that the law's bar on government efforts to "substantially burden a person's exercise of religion" applies to corporations as well as people. Hobby Lobby operates more than 500 arts-and-craft stores and employs about 13,000 people. It operates "consistent with biblical principles." (It's closed on Sundays, for instance.) Conestoga Wood Specialties is a Pennsylvania woodworking firm run by a Mennonite family that employs almost 1,000 workers.
Some appellate courts have been more than open to extending the corporate personhood metaphor as unfurled in Citizens United to include religious convictions as a component of corporate personhood. As the Appeals Court judge in the Hobby Lobby challenge explained in his majority opinion: "We see no reason the Supreme Court would recognize constitutional protection for a corporation's political expression but not its religious expression." Because there is no way for the courts to assess which religious convictions are heartfelt, there can be no limiting principle here. If for-profit secular corporations have religious beliefs, companies run by Christian Scientists can be free to limit medical treatment and those run by Jehovah's Witnesses could object to paying for blood transfusions. Artificially created constructs that exist to shield owners from lawsuits will be able to shield owners from compliance with basic civil rights laws.
Meanwhile, and in a completely different context, the legal metaphor around what constitutes "personhood" has been stretched beyond recognition in another direction: Across the land, the personhood movement has been attempting for several years now to confer the status of legal personhood to fertilized eggs, granting them all the same civil rights as actual people, and thus effectively banning abortions and some forms of birth control.
The silliness of this notion, that everyone gets to be a person merely by wishing it, is not without its legal limits. The Supreme Court, when confronted with the possibility of extending corporate personhood to AT&T in 2011 with respect to the notion of "personal privacy," balked. AT&T challenged the Freedom of Information Act, claiming it should be seen as a "person" under the statute. Chief Justice John Roberts — in an opinion that was long on humor but even longer on linguistic common sense — found no connection at all between the noun "person" and the adjective "personal." The chief justice concluded that "the protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations." He then added, cheekily, "We trust that AT&T will not take it personally."
Conferring human attributes such as religious conviction and embarrassment on a corporation is dangerous. Conferring human rights upon a fertilized egg is, too. When you designate a nonperson as a person, you devalue what it means, as a legal and policy matter, to be human.
Hobby Lobby and Conestoga are so worrisome because they fuse together two of the most dangerous right-wing civil rights obsessions of our times: the ambition of large, for-profit corporations to see themselves as people, with faith, convictions and consciences, and the attempt of citizens, using their own science and their own facts, to declare when legal personhood begins, and then impose universal laws based on those beliefs.
It simply cannot be the case that in a country of 319 million people, we are ready to recognize zygotes and Wal-Mart as legal "persons." Turning everything and anything into a "person" ultimately also serves to turn people into things.