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For-Profit and Non-profit Organizations Should Enjoy the Same Civic Rights

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.

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on May 24, 2015 at 16:02:34 pm

[…] and Non-profit Organizations Should Enjoy the Same Civic Rights”: John O. McGinnis has this post today at the “Library of Law and Liberty” […]

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“For-Profit and Non-profit Organizations Should Enjoy the Same Civic Rights” | Internet Tax Lawyers
on May 25, 2015 at 11:07:36 am

"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." -- Think Corn Laws from Merry Old England or for that matter some of the resentments of the Agrarian-ists from early America. Or even better, the entire predicate of the South's critique of the North was simply a re-hashing of the age old resentment of the landed gentry against the new merchant / industrial class.

And now for proof of the new two-class approach to Free Speech, see the following wherein the rich class (leftist, of course) gets to fund its preferred agenda by subsidizing media efforts for its favored agencies.

http://www.foxnews.com/world/2015/05/23/foundations-plan-to-pay-news-media-to-cover-radical-un-agenda/?intcmp=latestnews

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gabe
on May 30, 2015 at 00:57:04 am

To the extent that the argument here involves the fourteenth amendment privilege of "equal protection", the court, has historically argued against applying such a doctrine to this type of case. Historically, the court has said that "equal protection" only extends to natural classifications, such as race, in which one has no choice whether their members of class 'a' or class 'b'. The court early on in gay rights legislation refused to apply equal protection to homosexuals as a class, stating that one could 'choose' their sexuality, thus having the ability to 'choose' to be members of either class, making equal protection an abuse of the law. (worth noting that this concept as applies to homosexuality was quickly overturned, given the evidence of modern psychology!) An organization either chooses to be for profit, or not for profit, depending on its objectives. Thus congress is free to regulate each differently, as an organization could quickly reform into a for-profit corp, or vice versa, depending on the law.

With respect to religious organizations, what is really at play is the balance between the first-amendment rights, and the separation of church and state clause. What the court here has done, is merely extend first amendment law to artificial persons, such as corporations, LLCs, etc. The court acted in such manner, as to avoid the separation clause, as most non-profits are religious in nature. Therefore the court formulated a jurisprudence it would have applied to for-profits anyways.

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John Doe

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