What do Claire’s Corner Copia, the Owl Shop and J. Press Clothing have in common? All three are on College Street, and all cannot do what they do — sell stuff to people who want it — without a government license. For many years now in America, virtually wherever a government’s writ has run, you’ve needed its approval to run a commercial establishment.
The legal fiction of corporate personhood, by which humans can form a new entity with its own life, is a good thing. Allowing companies to limit their liability, file for bankruptcy and settle disputes quickly helps make our economic world go round. But what rights and privileges under government and in relation to other entities in society — corporations or people — might a corporation have?
This was the real question before the Indiana State Legislature last week as it debated and passed a law to restrict the government from “substantially burdening a person’s exercise of religion.” Few argue that, for instance, a Catholic priest should have to marry gays. The controversy was really about whether, for example, a restaurant owned by a devout Muslim couple should be forced to cater a gay wedding if the owners object to gay marriage.
This is not an easy question. There’s a strong case against the law. First, discrimination on the basis of demographics in what the Supreme Court calls “public accommodations” — hotels and bars, for instance — has a nasty history in the United States. Before the 1964 Civil Rights Act, a drugstore could refuse blacks urgently needed medicine because of their race. There’s no commercial reason for this — it’s just racism.
Second, corporations are not, strictly speaking, people. The American Revolution was fought so that individuals, equal under government, might control their destinies without interference from an unaccountable sovereign. It’s a stretch to say that the Founders’ vision of rights and equality, embodied in our central documents, should apply to the legal fiction of a corporation, an entity nonexistent for the vast majority of civilization’s history.
I sympathize with the argument against the law. I don’t like that a law of general applicability — a military draft law, say — might not apply to some people because their creed says it. I think it was unjust, for instance, that Jews could import liquor during Prohibition because they’re supposed to get drunk every year on Purim. But I think the law’s proponents have the better argument.
The biggest difference between Mike’s Pizza and Goldman Sachs is that I can name the person who owns Mike’s, and can’t do it for Goldman Sachs. Goldman Sachs is owned by thousands of different entities: truck drivers, university endowments, banks and even Goldman’s own employees. And really, they only own stock in Goldman that entitles them to dividend payments and votes for board members. If the Goldman’s officers commit fraud, its shareholders won’t get jail time.
But Mike’s Pizza is some fellow’s property. He set up the corporate entity known as “Mike’s Inc.” and with his own capital, he built the place. He owns Mike’s Pizza — you know because he can sell it whenever he likes. Maybe he’s also a devout Catholic who thinks marriage is a holy sacrament between a man, a woman and God. The fact that he could only sell pizza from a business incorporated under state law is no fault of his, and shouldn’t be construed to interfere with his rights to the free exercise of religion. For him, selling pizza is his vocation, as crucial to his existence as raising a family or praying at church. Importantly, his refusal to cater a gay wedding is not prejudicial against gays as such. He objects not to their sexual identity — a characteristic similar to race in that no one chooses it — but to the endorsement of what he believes to be a sinful act. A non-religious example might help illustrate the point: If you thought you were selling something to someone who was going to do something dangerous or immoral with it, wouldn’t you be permitted — indeed, obligated — not to sell? The case is even stronger for Mike’s, where the vendor is complicit in the objectionable act, without any plausible deniability about how his customer is using his goods.
The First Amendment was designed precisely to prevent this sort of coercion of religious minorities. Opposition to gay marriage, unlike opposition to racial integration, is often not rooted in any sort of bigotry. For many, marriage has a specific, divinely ordained definition: that of comprehensive union between one man and one woman. This does not negate love for gay friends or acceptance of gays generally. Even gay marriage is irrelevant to religious marriage, which derives its legitimacy from God, not a transient majority. All religion asks is to be left to observe eternal institutions without harming others. America was founded in part to defend against infringements on conscience: Let the wall of separation between church and state keep state out of church, in addition to the other way around.
Cole Aronson is a freshman in Calhoun College. Contact him at email@example.com .