Lawrence B. Glickman teaches American history at Cornell University. In this very interesting piece at Boston Review, he wonders why the Supreme Court continues to treat businesses as people. And why does the Court continue to favor the rights of businesses over the rights of individual consumers and employees?
Here is a taste:
Is there a meaningful distinction between Jack Phillips, “an expert baker and devout Christian,” as Justice Anthony M. Kennedy described him, and the company he owns, Masterpiece Cakeshop, a limited-liability company? The Supreme Court’s 7–2 ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission suggests not. The New York Times called the decision—which favored Phillips’s right to refuse service for religious reasons—“narrow” because it did not rule on the broader issue of discrimination against gay men and lesbians based on rights protected by the First Amendment. However, in terms of the relationship between capital and labor, the decision was anything but narrow. The Court’s majority opinion, written by Kennedy, is remarkable for its uncanny and unproblematic conflation of Phillips, the baker, and his business, the bakery. By insisting that the key issues in the case are Phillips’s artistic expression and his religious liberty, the Court was silent on the question of how a company can possess these rights. It did so by assuming not only that corporations are people, but that the cakes made by Masterpiece Cakeshop are produced by Phillips alone, when in fact we know that the bakery has other workers.
The Court saw fit to mention Phillips’s employees only once, in a remarkable sentence written by Clarence Thomas (joined by Neil Gorsuch) concurring with the judgement of the majority but making much broader claims about the rights of businesses to handpick their customers. Seeking to show both that Phillips is a sincere Christian and that his bakery reflects Christian values, Thomas wrote, “He is not open on Sunday, he pays his employees a higher-than-average wage, and he loans them money in times of need.” The last two clauses of the sentence are meant to demonstrate that Phillips is a good and generous employer, although one might wonder why well-compensated employees would need loans from their boss in order to make ends meet. But the first part of the sentence is particularly jarring. Presumably, Thomas meant to suggest that Phillips did not open his business on Sunday. But Thomas literally wrote instead that Phillips himself “is not open on Sunday.” Since it is impossible for a person to close or be open on Sunday or any other day of the week, Thomas here marked the extent to which the Court identified Phillips with the bakery.
The significance of this sentence is enormous and not just because, for Thomas and the other justices who sided with the majority, there is no appreciable difference between the baker and his company. (In this, the Court mimicked the language of Phillips himself, who in a 2014 video for the New York Times alternated between using “we” and “I” to describe the work of the bakery.) By extension, this means that the religious views and artistic contribution of the company’s workers are irrelevant. Phillips’s employees are merely props in Thomas’s morality tale—figures who receive the boss’s Christian charity but are otherwise unmentioned and invisible. The decision renders their status as workers for Phillips’s limited-liability company morally and legally immaterial.
I am not a legal scholar, but I find the question of how the Supreme Court defines personhood to be very interesting. Back in 2014, the American Historical Association asked me to write a response to the Burwell v. Hobby Lobby case. I am not suggesting what I wrote back then applies directly to the Masterpiece case, but I will throw it out there anyway. Here is a taste of my “‘We Hold These Truths to Be Self Evident, That All Corporations Are Created Equal“:
Ginsburg’s historical argument is a strong one. Indeed, religious liberty or the Free Exercise Clause has never been directly applied to a for-profit corporation. But this does not mean there is no precedent for considering a for-profit corporation a “person.” As the prominent American historians at Backstory have recently reminded us, the post-Civil War Supreme Court affirmed on multiple occasions that corporations (mostly railroads) are covered under the Fourteenth Amendment. Corporate personhood has a long history.
But can a corporation have religious liberty? I obviously don’t know how Roger Williams, Isaac Backus, James Madison, or Thomas Jefferson—the great early American defenders of religious liberty—would have responded to Burwell v. Hobby Lobby, but there is little doubt that they would have considered such a proposal to be very strange. For these men, religious liberty was a very personal thing. Religious liberty was meant to protect deeply held spiritual convictions that found their home in the “soul” or “conscience.” Religious liberty was an inherently Protestant concept. It stemmed from the belief that people could read the Bible for themselves and draw their own religious conclusions. It has always been a religious idea applied to individual human beings. Can a for-profit cooperation have a soul? Can it truly practice liberty of conscience?
We might also ask, as political scientist Patrick Deneen has done so brilliantly, whether a big box store such as Hobby Lobby, located in a massive shopping center constructed on a slab of asphalt at the edge of town, can be considered a person. And if it is a person, can it exercise religious liberty? What happens to a traditional and historical understanding of a person—a human being embedded in political, religious, and local communities exercising virtues such as friendship, love, duty, and citizenship—when it is defined in the context of a soulless corporate world with the primary purpose of maximizing profits?