Sheila Kennedy – Page 759 – A jaundiced look at the world we live in.

Did John Locke Doom America’s Social Safety Net?

The first issue of the Journal of Civic Literacy has been published, and is available at the link. We’re pretty proud of it; it features an introductory essay from former Supreme Court Justice Souter, several academic articles, a book review by Steve Sanders, and an argument for/example of effective civics instruction by Charles Dunlap, head of Indiana’s Bar Foundation.

It also includes an article–you might even say a meditation–on America’s difficulty with the concept of the social safety net. The thesis is that Americans have internalized John Locke’s libertarianism in a way that does not accurately reflect his philosophy, and by doing so have made it incredibly difficult to have reasonable public conversations about programs like Social Security, Medicare, and the Affordable Care Act (aka Obamacare).

Given the abysmal level of civic knowledge these days, it may seem almost fanciful to revisit Hobbes, Locke and other towering Enlightenment figures (we can hardly encourage people to reread works they’ve clearly never read or even heard of), but a careful consideration of where we come from can often illuminate how in the hell we got where we are.

Anyway, if you’re interested in a somewhat wonky deliberation on our intellectual forebears, I hope you’ll give the article–and the others in the issue– a read. (Admission/disclosure: I am a co-author of the Locke article.)

And if you want to remind yourselves what a really good Supreme Court Justice sounds like, read Justice Souter’s essay.

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It’s About the Rule of Law, Not Religion

Okay–this will be my last effort to explain why I am so appalled by the decision in Hobby Lobby, and it has little or nothing to do with warring definitions of religious liberty.

If Hobby Lobby were a sole proprietorship or partnership, and the Court had ruled that the Free Exercise Clause gave the owners the right to disregard a law of general application based upon their religious beliefs, I might or might not agree with the decision, but I would see the issue as one falling properly within a long line of jurisprudence.

But Hobby Lobby–“closely held” or not–is a for-profit corporation.

When people choose to do business using the corporate form, the law grants them certain benefits that are unavailable to individuals. Most significantly, they are shielded from personal liability. If someone sues Hobby Lobby and wins a huge judgment, they can recover from whatever assets the corporation owns, but they cannot “pierce the corporate veil” and take the owners’ personal assets.

That protection against personal liability is the main reason for the legal fiction we call a corporation, and it is meant to encourage people to go into business. In effect, the government says to potential entrepreneurs “If you’ll engage in economic activity, we’ll protect you from a significant measure of risk. You may lose the business, but you won’t lose your house.”

In return for that protection, however–in return for limiting both your risk and the amount that someone you may harm can recover–the public has a right to expect you will follow laws passed by Congress that are applicable to corporate commercial ventures, whether you like them or not.

The owners of Hobby Lobby want the benefits of corporate form, but not the obligations. Their argument was essentially that the rule they didn’t like shouldn’t apply to a company with “sincerely” religious shareholders. They asked the Court to pierce the corporate veil and treat the company as a sole proprietorship, for this purpose only. (At one point, the majority explicitly noted that the company wanted to act in accordance with its owners’ religion without losing the benefits of the corporate form.)

The rule of law and the Equal Protection Clause both require government to treat equally-situated people (fictional or real) equally. In its ham-fisted effort to advantage certain religions (does anyone think the outcome would have been the same if a Muslim-owned corporation had wanted an exception from laws inconsistent with Sharia?), the Court’s majority has announced its willingness to apply the rules selectively and arbitrarily.

There are many things wrong with this decision, and Justice Ginsburg’s scathing dissent identifies most of them. But in my opinion, the damage done to the rule of law is the worst.

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The New Feudalism

Yesterday, my son observed that the continued confusion of corporations with actual people in order to grant them human rights was part of a broader move back to a feudal social structure.

I thought about his analogy, and after I wrote the post about Hobby Lobby-– the latest manifestation of this phenomenon, after Citizens United and its progeny–I googled feudalism and found the following definition:“Classical feudalism” (before the rise of strong feudal monarchies in which kings claimed the role of liege lords) is characterized by the fragmentation of political authority and the passage of public power into many different private hands.

The Supreme Court’s corporatism is anything but market friendly capitalism; it’s all about privatizing power and eviscerating government’s authority to create a level playing field. It’s about making government (the monarch) more responsive to the oligarchs and less attentive to the polity. It’s about undercutting democratic decision-making and further empowering the wealthy and well-connected.

And then I found a visual….

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The Real Problem with the Hobby Lobby Decision

There are lots of things one might say about the Supreme Court’s immensely wrongheaded decision allowing closely-held corporations to deny birth control coverage to female employees in contravention of the corporation’s “sincere religious convictions.”

We could point to the hypocrisy of an owner who buys lots of merchandise from China, with its mandatory abortion/one child policy, but whose religious sensibilities recoil from offering birth control to female employees who want it.

We could note that, thanks to the Administration’s willingness to accommodate religious paternalism, the costs of coverage didn’t even come out of the corporate pocket–the insurers paid it. How does that “burden” the corporation?

We could certainly consider how this decision fits into the broader backlash against equal rights for women that has characterized American politics for the past decade. Reliable birth control gives women control of their lives, and it’s clear that a significant number of men resent anything that promises women personal autonomy.

We could observe, as one of my sons did, that America is devolving into feudalism–that this case is just one in a series of recent policies and judicial decisions favoring the rights of the powerful over the rights of their serfs. And we could couple that observation with growing dismay over the attribution of “personhood” to entirely fictional beings called corporations. Legal constructs created to facilitate economic activity have now been invested with freedom of speech and religion. (Ironically, this case confers religious rights on legal fictions while taking them away from real, human women.)

And we could–and should–point out that the Supreme Court doesn’t really have the final word: we serfs–i.e. consumers– do. Any woman who shops at Hobby Lobby after this is a traitor to her gender. There may not be legal recourse from a Supreme Court decision–at least, not until or unless we get better Justices and this decision is revisited–but we can certainly encourage fair-minded folks to boycott the theocratic corporate “person” called Hobby Lobby.

All of these thoughts–and some not fit to transmit–went through my head when I learned of the decision. But what really struck me was a warning from a 1992 book by Jane Jacobs. The book was Systems of Survival: A Dialogue on the Moral Foundations of Commerce and Politics. It’s a slim volume, and an easy–and fascinating–read. I recommend it. The basic premise was that once we recognize the universal rules of moral conduct (“don’t steal, don’t lie, etc.) there are two very different moral “systems,” a commercial system and a “guardian” or governmental system, with rules that make sense only within the imperatives of that system.

When you apply the moral rules developed for one system to activities properly within the jurisdiction of the other, you really screw things up.

Corporations are not inherently good or evil; they are simply a useful fiction. A line of cases that invests them with human attributes is worse than perverse; it’s dangerous.

Feudalism was bad enough when the Lord of the Manor was human, and would die.

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Ignorance on Display

Yesterday’s Indianapolis Star devoted much of its editorial real estate to the same-sex marriage debate. The paper took an editorial position in favor of recognition–an immensely encouraging sign of sanity I never thought to see in my lifetime–and also ran an “editorial dissent” that was a model of respectful disagreement.

Then there were the letters, most prominently a screed from Ryan McCann of Indiana Family Action. It would be hard to find a more perfect example of civic ignorance.

McCann trots out the Right’s usual list of dangerous incursions on “religious liberty,” including the claim that pastors will “come under legal attack” for refusing to marry same-sex couples.

Read my lips: the Free Exercise Clause of the First Amendment absolutely protects pastors and churches from officiating at weddings incompatible with their theologies. Period. Full stop. Anyone with even a modicum of constitutional knowledge should know better than to make or credit such a bogus claim, and it is a sad sign of how widespread civic ignorance is that the Rabid Right continues to parrot it.

McCann then bemoans the consequences for “small businesses” that refuse to serve same-sex couples (or, one intuits, gay customers generally) for reasons of religious “conscience.” He utterly fails to understand the difference between a church and a doughnut shop, which may tell readers more about his theology than he intended.

When a merchant opens a commercial enterprise, and advertises “come one, come all,” there is an implied transaction with local government; the government provides streets and sidewalks allowing customers access the business, police and firefighters to ensure its safety, and–in some cities–adequate public transportation to enlarge the pool of potential customers. In return for those services–necessary in order for a retailer to thrive– government asks that the owner pay his taxes, clear snow from his sidewalk, and honor that “come one, come all” invitation.

Catholic shopowners don’t get to refuse service to divorced and remarried customers; Jewish merchants don’t get to reject people who munched on BLTs before browsing the merchandise. Business owners whose “sincere beliefs” include a healthy amount of racism no longer get to turn away African-Americans. (Indeed, McCann’s letter echoes earlier laments from Southerners whose “liberty” to discriminate against black customers was being infringed by those hateful civil rights laws.)

So yes, “open for business” probably means open to anyone who wants to buy your cupcakes.

On the other hand, if your God tells you that gay people are all sinners headed for hell, your pastor and your church can continue to operate on that theory, and the nasty old government can’t touch you.

You are protected by the Constitution that you evidently read as selectively and uncomprehendingly as you read that bible you keep thumping.

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