By Mark Gabrish Conlan • for East County Magazine, www.eastcountymagazine.org
April 2, 2014 (Washington D.C.)--The U.S. Supreme Court sure picked a weird way of celebrating the 50th anniversary of the landmark 1964 Civil Rights Act this year. On March 24, they heard arguments in a case called Sebelius v. Hobby Lobby, in which a chain of art supply stores claimed that the mandate under the Affordable Care Act (so-called “Obamacare”) that employer-provided health insurance cover birth control is an infringement on their freedom of religion. Stated that boldly, Hobby Lobby’s claim that its for-profit business has the capability of worshiping God in its own way and the government can’t dictate the terms under which it can provide employees health insurance because that would violate its freedom of religion is preposterous.
But at the March 24 hearing, the current Court’s five-member conservative majority seemed to be leaning in favor of ruling for Hobby Lobby and establishing, for the first time in American law, that corporations not only have freedom of speech (the “right” the same five creeps established in the 2010 Citizens United decision) but freedom of religion as well. The Hobby Lobby case was argued on the all too familiar culture-war battlegrounds of birth control and abortion — indeed, central to Hobby Lobby’s case was the question of when one becomes the other — but a Court ruling in Hobby Lobby’s favor would attack the very basis of all U.S. civil-rights legislation and give corporations vast new powers over the personal lives of their employees.
When the Supreme Court took up the constitutionality of the 1964 Civil Rights Act, it was not a foregone conclusion that they would uphold it. After all, in 1875 the U.S. Congress — dominated by Republicans back when they were the party of civil rights and racial justice — had passed a civil-rights law strikingly similar to the 1964 bill. Like the 1964 law, the 1875 Civil Rights Act provided “that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement, subject only to the conditions and limitations established by law and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.”
In 1888 the Supreme Court found the 1975 Civil Rights Act unconstitutional (http://supreme.justia.com/cases/federal/us/109/3/case.html) on the ground that the Fourteenth Amendment, on which the law was based, applied only to government action and could not be used to compel private businesses and their owners to serve people they didn’t want to serve. Modern-day U.S. Senator Rand Paul (R-Kentucky) made a similar argument when he said that if he’d been in Congress in 1964 he’d have voted against the Civil Rights Bill because, while it was right and proper for government not to discriminate on the basis of race, government had no business telling private citizens, including business owners, that they should not discriminate either.
The liberal Warren Court of the 1960’s had a very different view of constitutional law. They regarded the Fourteenth Amendment as a guarantee of “equal protection of the laws” for all people, regardless of race, and interpreted that to mean not only that government couldn’t discriminate but that private businesses that offered services to the public had to do so to all comers. They actually considered the argument now being made by Hobby Lobby — that a business owner ought to have the right to refuse service to certain people based on his “sincerely held” religious beliefs — and saw it as what it was (and is): a way for private businesspeople in a community who had similar beliefs about racial inferiority to nullify civil-rights laws by citing their “religious” beliefs as a reason not to serve African-Americans or other people of color.
But just as an increasingly conservative judicial system in the 1880’s and 1890’s morphed the Fourteenth Amendment from a weapon against racial discrimination to a way for corporations to nullify virtually any attempt by government to regulate them, the Right-wing judges of today are rewriting the First Amendment to undermine all attempts to put brakes on the power of today’s corporations. In Citizens United (2010), the Supreme Court established that corporations have virtually unlimited power to contribute to election campaigns, thereby permanently skewing the U.S. political system to reflect the priorities of the corporate rich. A decision in favor of Hobby Lobby would go even further, giving business owners unprecedented power over the personal lives and beliefs of their employees.
One of the principal weapons of the judicial Right, then and now, is a doctrine called the “freedom of contract.” It’s based on the idea that no one is forced to do business with a private corporation. No one is forced to go to work for one, and no one is forced to consume its products. Thus, in the infamous Lochner case of 1904, the Supreme Court ruled that the state of New York could not set limits on how long a bakery could require its bakers to work because that would undermine the “freedom” of a baker voluntarily to work longer hours than the maximum that law allowed. The Court used similar “logic” to declare minimum-wage laws unconstitutional on the ground that they violated the “freedom” of workers voluntarily to agree to work for less.
The person who, more than anyone else, reversed this bizarre perversion of legal logic was a turn-of-the-century attorney, law professor and (ultimately) Supreme Court justice named Louis Brandeis. When he represented workers victimized by low wages, long hours and hazardous working conditions, he insisted that the courts rule on the basis of how the laws worked in the real world. A typical Brandeis brief would contain a page or two about his legal theory of the case — and hundreds of pages of social-science research documenting how workers suffered when they weren’t paid enough and when they were overworked in crowded, filthy conditions. For Brandeis, and the liberal justices who eventually became the majority on the Supreme Court in the 1950’s and 1960’s, law wasn’t an abstract exercise in logic. It was a weapon that could be used either to oppress or to protect those without economic power in a world increasingly dominated by giant corporations which often literally had the power of life or death over their workers and their consumers.
But as American politics in general and the Supreme Court in particular started shifting Rightward in the 1970’s, the “freedom of contract” doctrine made a comeback. It turned up in a 1979 Supreme Court case called Smith v. Maryland in which the Court ruled it was O.K. for police to go to the phone company and get a so-called “pen register” on a robbery suspect, Michael Smith, without obtaining a search warrant. A “pen register” meant a listing of all the phone numbers Smith called, or which called him. The Court said that once Smith made the totally voluntary decision to have phone service, all the personal information he provided the phone company, as well as the records of everyone he called or who called him, was no longer his property. It now belonged to the phone company, which could do whatever it liked with it — including turning it over to the government.
In 2013 U.S. District Judge William Pauley cited Smith v. Maryland in ruling that the National Security Agency (NSA) had a constitutional right to collect similar information on every single American with a cell phone or an e-mail account. As long as the phone companies and Internet service providers (ISP’s) were on board with the NSA’s programs, Pauley said, no individual being spied on had a right to complain because they had no “reasonable expectation of privacy” for data they had willingly turned over to phone companies and ISP’s to get cell-phone and e-mail service. It’s true that another judge, Richard Leon, had earlier found the NSA’s program unconstitutional on the Brandeisian ground that one shouldn’t apply to cell phones and e-mail a case decided before either existed — but President Obama’s recently offered “compromise” reflects the doctrine behind Smith: instead of the NSA collecting the data, the phone companies and ISP’s will keep it and turn it over to the NSA whenever the agency makes a request for information about a specific person.
What Smith v. Maryland, Citizens United and the likely ruling in favor of Hobby Lobby add up to is a Supreme Court ready and, indeed, eager to grant private corporations incredible degrees of control over the lives of ordinary Americans. Smith essentially ended Americans’ right to privacy against corporate power; as long as you either work for a corporation or buy goods or services from one — which is practically everybody — you’ve given them control over your personal information and they can use it pretty much however they like. Citizens United said that political representation is a commodity like any other; the more money you have, the more of it you can buy.
Indeed, billionaire venture capitalist Tom Perkins and others in the 0.001 percent have taken the logic of Citizens United even farther than the Court did and argued that the rich should have more votes in elections than the not-so-rich. “You don't get to vote unless you pay a dollar of taxes,” Perkins said at a public event in San Francisco last February 13 (http://www.huffingtonpost.com/2014/02/14/tom-perkins-votes_n_4788086.html). “But what I really think is, it should be like a corporation. You pay a million dollars in taxes, you get a million votes.” It’s a fascinating throwback to the reality of the American republic in the first 40 years or so after the Constitution was enacted, when only white males who owned property (i.e., land) were allowed to vote.
Smith v. Maryland said that you no longer own your personal information — not when you “voluntarily” (“freedom of contract,” remember?) share it with an employer, a phone company, a supermarket or drugstore offering you member-card discounts, or any other corporation that asks you for it. Citizens United said you no longer own your political system; that’s for sale to the highest bidder. A ruling in favor of Hobby Lobby in the current case will go even farther; with absolutely no consideration for the rights of the employees of Hobby Lobby or any other business that might decide to police their workers’ morals, it will essentially make corporate leaders into prophets and give them control of their employees’ souls.
The whole idea of a for-profit corporation having a religious conscience is bizarre on its face. Civil-rights advocates have grudgingly given ground to actual churches, carving out exceptions to laws — especially ones banning discrimination based on sexual orientation — on the ground that a church has the right to preach against abortion, contraception or homosexuality and therefore it shouldn’t be compelled to employ people who support reproductive choice or LGBT rights. But the churches, and their acolytes running businesses like Hobby Lobby, want more than that. They want their views so enshrined in the law that they can discriminate against anyone they want, for any reason they want, as long as they can argue it’s part of a “sincerely held” religious belief.
Corporations are not people. For the benefit of Supreme Court justices and others too thick to make the distinction between actual flesh-and-blood human beings and artificial entities formed to limit the legal liability of the flesh-and-blood human beings who create them, I’ll repeat that: corporations are not people. Indeed, back when there were actually religious people in politics who not only expressed liberal and even radical opinions but said their faith compelled them to do so, William Jennings Bryan argued that the whole idea of “corporate personhood” was blasphemy. If you really believed, as the Declaration of Independence said, that all men were created equal and endowed by their Creator with unalienable rights to life, liberty and the pursuit of happiness, then, Bryan argued, it followed that those rights belonged only to God-created people (human beings) and not to people-created people (corporations).
But the trend in the U.S., and indeed worldwide, is to endow corporations not only with all the rights of human beings but several more besides. One of the scariest notions behind so-called “free-trade treaties” like the North American Free Trade Agreement (NAFTA) and the proposed Trans-Pacific Partnership (TPP) is something called “investor-to-state dispute resolution.” This may sound innocuous and wonky, but what it means is that under these treaties, corporations can sue governments to have labor and environmental regulations, zoning laws and any other attempts to restrain corporate power thrown out as “unfair restrictions on trade.” These treaties give corporations the power to challenge any laws, no matter how democratic the process that created them, that might reduce the corporations’ ability to make profits. What’s more, the cases are heard in secret tribunals that essentially make their own legal rules, and a country that defies a ruling against it by an investor-to-state dispute resolution panel could find itself essentially locked out of the international economy — much the way a person who decided to protect their privacy against corporate intrusion by not having a landline phone, a cell phone or an Internet connection would be cutting themselves off from the modern economy and most ways to make a living.
The vast expansion of corporate power on all fronts — and the decimation of organized labor and virtually all other ways workers and consumers can come together and fight back — is radically remaking the world. In the name of capitalism, we are increasingly reverting to the feudalist system capitalism was meant to replace, in which the government was relatively weak and the authority most people had to obey and fear was that of the local overlord. In the Hobby Lobby case, it’s true that giant corporations are less likely to use the “freedom” to dictate the religious beliefs of their employees than individual-owned businesses and medium-sized companies like Hobby Lobby. When the Arizona legislature passed a bill allowing civil servants to refuse to serve people whose lifestyles or beliefs offended their religion, the Arizona Chamber of Commerce and giant companies like Apple lobbied Arizona governor Jan Brewer to veto the bill — which she did.
What Apple and the members of the Arizona Chamber of Commerce were worried about was that discriminatory actions by civil servants against their workers would hurt their ability to recruit qualified people who happened to be LGBT, pro-choice women, or whoever offended the state employees with “sincerely held” religious beliefs against reproductive choice and LGBT rights. They were also worried about facing boycott campaigns like the one led by LGBT activists against Target in 2010 for having donated money to a political action committee (PAC) that supported an anti-LGBT candidate for governor of Minnesota. But a regional company like Hobby Lobby that does most of its business in states where the majority of people share its owners’ religious prejudices has much less to lose if it discriminates against women and LGBTs than a nationwide company like Target or a global giant like Apple.
So if the Supreme Court rules for Hobby Lobby in the current case — which seems likely, though by no means certain — American workers’ rights will be dependent on the good will of their corporate masters. Indeed, one wonders how far the Court will go in protecting the “rights” of employers to impose their religious beliefs on their workers. Will they be required to attend company-sponsored services in a particular faith? After all, according to the logic behind the Hobby Lobby case, it’s not government that’s creating an establishment of religion or prohibiting the free exercise thereof — it’s a private employer for whom workers have the right under “freedom of contract” to work or not. The fact that in many parts of the country people’s only “choice” is to work for employers with the mentality of Hobby Lobby’s owners or to starve doesn’t enter into it. Like their predecessors in the 1880’s, 1890’s and 1900’s, today’s Supreme Court justices exalt an ideal of corporate legal power and are either indifferent or actually supportive of the harm such judicial ideals do when applied to the real world.