In Burwell v. Hobby Lobby, Justice Ruth Bader Ginsburg drew a sharp contrast between for-profit and religious organizations. Whereas for-profits are “organized to do business in the commercial world,” religious organizations, she said, serve citizens as believers. The strict separation between commerce and other spheres of civic life is also reflected in the common complaint that the Supreme Court in Citizens United wrongly reached out to extend First Amendment protection to for-profit corporations as well as the non-profit corporation actually at issue in the case.
The attempt to deprive for-profit enterprises of the rights to participate in political and civic life is characteristic of modern left-liberalism, which seems to believe that for-profit activity is inherently less civic-minded than not-for-profit endeavors. The distinction is not altogether new. For centuries nobles disdained those in trade and asserted that merchants should have fewer rights than they did. This stance is yet another instance where social democrats want to create a society based on status distinctions rather than on the exercise of equal legal rights.
But the distinction is not a sound one. Individuals and organizations engaged in for-profit enterprise can have objectives and motivations that parallel those in non-profit enterprises. For instance, an enterprise may aim to work for profit but only while also advancing moral or religious objectives, as did Hobby Lobby. And non-profit institutions generally aim to capture the resources of others either through voluntary contributions or through the state. Moreover, the members of non-profit organizations often choose to be part of its activities, because the sum of the salary they earn and the non-pecuniary benefits they enjoy are the highest they can obtain. This aim is no different from participants in a for-profit enterprise. And there has never been a showing that civic rights of for-profit organizations benefit society any less than those for non-profits.
The general presumption should be that organizations engaged in for- profit and non-profit activities should enjoy the same civic rights under law. Thus, if the law chooses to provide for religious exemptions under certain conditions for a non-profit, it should extend the same exemptions under the same conditions to a for-profit. For-profit organizations should also enjoy the same free speech and free press rights as non-profits.
The equality of rights for for-profit and non-profit media is strongly embedded in our law, and no one seriously argues that The New York Times should enjoy fewer First Amendment rights because it makes profits or even uses a corporate form. Of course, the for-profit organizations that get a constitutional press pass have been on the whole allied with the left. Yet more evidence that the distinction between non-profits and for-profits may be instrumental is that the left appears welcome the exercise of civic rights when they are doing so to advance a left position. No one found any metaphysical impossibility in a corporate organization acting on its beliefs when many large corporations recently opposed state versions of the Federal Religious Freedom Restoration Act. But the principled position in a liberal society is to defend the civic rights of for-profits and non-profits alike, regardless of their likely positions.