Column: The Supreme Court's useful fiction
WASHINGTON — Mitt Romney said it, and on Monday the Supreme Court upheld it: Corporations are people, my friend.
In its last day in session, the high court not only affirmed corporate personhood but expanded the human rights of corporations, who by some measures enjoy more protections than mortals — or “natural persons,” as the court calls the type of people who do not incorporate in Delaware. In 2010, the court ruled that corporations are people for the purposes of making unrestricted political contributions. Now, the court has decided that some corporations have religious beliefs, just like other people.
“The purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees,” Justice Samuel Alito wrote in the much-anticipated Hobby Lobby decision. “Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.”
Alito’s ruling notably did not protect the rights of people employed by Hobby Lobby. They can now be denied contraceptives they were supposed to receive as part of their employee health plan — because the craft chain’s owners object to certain forms of birth control required under Obamacare. In a statement from the bench, Alito argued that those who say corporations are “just a piece of paper” are making a “dangerous” argument and would turn religious executives “into second-class citizens.”
There was a certain risk in having Alito deliver the 5-4 opinion defending corporate personhood, because his mannerisms are strikingly robotic for a human. Assigned both of Monday’s opinions, Alito delivered a 33-minute monologue that seemed to have a soporific effect on his colleagues. Clarence Thomas rubbed his head, Anthony Kennedy rested his head in his right palm, Ruth Bader Ginsburg drank a large quantity from her coffee mug, and the others stared ahead with unfocused gazes.
Alito, seated between Ginsburg and Justice Elena Kagan, and his colleagues in the majority also may not have considered how flesh-and-blood humans might perceive the ruling — the five men of the conservative bloc allowing restrictions on birth control over the objections of the three women on the court.
Ginsburg, in her dissent, wrote: “Until this litigation, no decision of this court recognized a for-profit corporation’s qualification for a religious exemption. ... The exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is ‘an artificial being, invisible, intangible, and existing only in contemplation of law.’”
Alito, in his opinion, allowed that qualifying corporations as persons under the law is a “fiction” — but a useful one. “The purpose of this fiction is to provide protection for human beings. ... When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”
In this case, people should feel well protected, because corporations enjoy rights that “natural persons” do not. The act of incorporating allows officers to avoid personal responsibility for corporate actions. Corporations have the benefits of personhood without those pesky responsibilities.
Outside the courthouse, women’s groups protested the decision with messages such as: “You are not a doctor. You are not a church. You sell stencils.” Conservatives hailed the Hobby Lobby ruling as a natural extension of religious liberty. “Corporations have had the rights of persons for a very long time in this country,” Mark Rienzi of the Becket Fund for Religious Liberty told reporters.
This ruling, however, required extra creativity. The 1993 Religious Freedom Restoration Act, the basis for Alito’s opinion, referred to “a person’s exercise of religion,” without mentioning corporations. So Alito, while granting that “artificial persons” are sometimes excluded from the definition of personhood, reverted to the “Dictionary Act definition of ‘person,’” which includes corporations. (The Dictionary Act also defines “writing” to include typewriting, multi-graphing, mimeographing and manifolding, and it says the words “‘insane person’ shall include every idiot.”)
Alito’s ruling was, Ginsburg said, an “expansive notion of corporate personhood.” She invoked the writing of former Justice John Paul Stevens, who wrote that corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.”
Stevens might have delivered the dissent himself, but he was watching Monday’s proceedings from the section reserved for retired justices. Artificial persons don’t grow old, but natural persons do.
Follow Dana Milbank on Twitter, @Milbank.