Corporate Personhood, the Church of Progressivism, and the Preservation of Liberty: A Commentary on PayPal and Pizza Shops

An exterior view of eBay/PayPal offices in San Jose, Calif., is seen, Wednesday, Jan. 19, 2011. EBay Inc. says its fourth-quarter revenue rose, as the healthy holiday shopping season bolstered growth in its PayPal online payments business and online marketplace. (AP Photo/Paul Sakuma)

Luke Phillips

I haven’t seen anyone make this argument yet (maybe someone made it a meme,) but I couldn’t help but notice a parallel between recent events and a story from a while back. Remember when that pizza shop somewhere in the vague Midwest refused to cater the wedding of two gay men? Now remember the recent story of PayPal and various other large corporations cancelling their services in North Carolina due to that state’s recent anti-transgender bathroom law?

Well, I hate to break it to you, but these two actions basically have the same plotline- a business refuses service to potential customers because it disagrees with something they’re trying to do (get married as two people of the same sex) on moral grounds. Another business refuses service to potential customers because it disagrees with something they’re trying to do (preclude transgender people from using their preferred bathrooms) on moral grounds.

The secular liberal community, of course, backs PayPal and opposed whatever that pizza shop’s name was. The conservative Christian community, of course, backed the pizza shop and opposes PayPal’s decision.

Absent from the conversation is the fact that both businesses committed the exact same action- they discriminated against certain entities to make a statement of their beliefs and to avoid violating their beliefs. Call it what you want, a defense of principle or conscience or whatever- but in the practical world, we call that discrimination. Both the conservative Christians and the secular liberals are hypocrites for denouncing one exercise of discrimination and celebrating the other.

Moreover, both instances of discrimination spring from the same legal ground- the fact that businesses and other non-individual entities have first amendment rights. Otherwise there would be absolutely no basis for PayPal to cancel its new headquarters in North Carolina, or for the pizza shop to refuse service on grounds of the beliefs of its owners. Let’s review the First Amendment, first and foremost:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

These rights apply to both individuals and “corporations,” in the broad sense- associations of individuals organized into communities for various ends, to include civic leagues, religious establishments, businesses, unions, and plenty of other entities. And if you look empirically at how “corporations” act in society nowadays- or indeed, across American history- it’s undeniable that they exercise these rights of speech, assembly, press, petition, and, yes, religion.

Lobbying. Public statements and press releases. Rallies. Other aspects of political and public life not directly related to making money, building community, or doing other things that “corporations” tend to otherwise do. Etc., etc., etc.

It’s a complicated argument, so I’ll let Carson Holloway speak for me, from the pages of National Affairs in an excellent article entitled “Are Corporations People?”

“The idea that corporations have legal rights, and therefore a kind of personhood, is not an invention of contemporary conservatives. Its roots stretch all the way back through the history of American law and deep into the English common-law tradition. That tradition was captured most comprehensively — and communicated to the American founders most forcefully — by William Blackstone’s Commentaries on the Laws of England. The very table of contents of that work bears witness to the legal tradition of granting rights to corporate persons. Chapter 18, “Of Corporations,” is placed in “Book the First: The Rights of Persons.”

Corporations as legal forms, Blackstone explained, are “artificial persons,” created by law “for the advantage of the public.” The rights accorded to the corporate form, he thus suggested, were granted in order to encourage cooperation among individuals with a view to socially useful ends. Without the corporate form, an association of individuals could not make binding rules to govern its members or internal structure. Without certain rights, it could not hold property indefinitely as an association — the death of the association’s members would mean the death of the association. Without granting corporations certain rights, individuals could not securely create an association that would have a life, an identity, and a mission that could continue from one generation to the next.

Blackstone’s account importantly teaches us that legal recognition of corporations is not limited to the for-profit kind. The corporate form was developed, he noted, particularly for “the advancement of religion, of learning, and of commerce.” Just as in Blackstone’s day, when corporations would have included not only the British East India Company but also Oxford and Cambridge, today’s concept of the corporation embraces not only for-profit enterprises like Apple and General Electric but also non-profit institutions like the Metropolitan Museum of Art and the New York Philharmonic. Indeed, the first corporation chartered in America was not a business but an institution of higher learning — what is now Harvard University.

There is, moreover, nothing outlandish in Blackstone’s view that such institutions should have rights, or that the discussion of those rights belongs in the context of a larger account of the “rights of persons.” A corporation is simply a legally recognized group of people cooperating with a view to some common end. Indeed, the very purpose of that legal recognition and the rights that accompany it is to provide a framework for a group of citizens to freely associate with one another in a stable, productive, and harmonious way…”

You should really read the whole thing. It’s a fascinating piece.

There’s another recent piece in National Affairs that, unfortunately, is behind the paywall and inaccessible to the general public. (That’s probably for the best, because the progressive left would go crazy if they found it.) It’s entitled “The Church of Progressivism,” and it argues exactly what it sounds like it argues. Secular Liberalism or Progressivism or Universal Human Rights or whatever you’d like to call it is just as much a “functional religion” as is Protestant Christianity (even if it’s not a theological religion like the Christian faith.)

Progressivism has holy texts and dogmas. It embarks on crusades. It has true believers, recent converts, apostates, and Christmas-and-Easter churchgoers. It has its high priests and its deacons, and it occasionally embarks on crusades against other religions (the response to the anti-transgender bathroom law is a case in point.) It excommunicates its own followers, at times. It meets my three criteria of all functional religions- it deals with issues of right and wrong, it deals with ultimate reality, and, most importantly, it prescribes certain rules of social order such as individual rights and moral progress. It’s a religion all right, and it happens to be one of the most dominant religions in the American public sphere.

I’m not saying this to mock or expose Progressives and Liberals. I’m just saying it to, hopefully, provide some shock therapy as to Progressives’ and Liberals’ vision of themselves- when they donate to help the starving children in Africa, when they sign petitions to challenge anti-LGBT laws, when they weep at Stonewall and cherish the Universal Declaration of Human Rights as an eternal document, they are doing exactly what Christians do when Christians pay their church tithes, sign petitions to protect publicly-funded nativity scenes, make pilgrimages to Bethlehem, and read the New Testament as truth born eternal. They’re just conscious of the fact that they’re practicing a religion, based on the fundamental realities they believe to govern the universe. Progressives are not as conscious of it, but they believe their beliefs to be true and crucial nonetheless. And that’s a fundamental right nobody should take away- belief, as well as practice, and practice both individual and communal.

It follows that individuals can follow many faiths, that no society can be truly atheistic, that every moral code with social consequences is a functional religion or cult, etc. I will go more into that in a future post. But I say all this to follow up on Yuval Levin’s point in The Perils of Religious Liberty– the danger the Founders worried about was not believers having their right to free practice taken away. The danger the Founders worried about was the imposition of some believers’ faith upon the practitioners of other religions. Which is what Christians do when they demand school prayer, and what Progressives do when they demand that everybody recognize Caitlyn Jenner to be a woman.

It’s veritably nonviolent religious warfare, and it’s dangerous to the Republic’s institutions of liberty and pluralism.

Which brings us to my final point.

Now, I’m a Progressive Republican. I personally think that PayPal was morally justified in doing what it did in North Carolina. I personally think that the pizza shop shouldn’t have denied that gay couple service- which is hard for me to say as a Catholic, because I can envision certain cases where a Catholic-owned business should and shouldn’t do the same thing.

But what I think, and what society thinks, is not the point. Rousseau’s General Will does not rule in America. We were founded and have lived as a nation under law. As that bastard atomistic liberal Thomas Paine said, “In America, the law is King.”

If we are to be a nation of laws, we cannot allow the passions of the moment- and the religious convictions of any of our major religions, to include Catholicism, Progressivism, and Protestant Christianity, and so many others- to crowd out the free exercise of religion in any situation, or to violate the consciences of any of our diverse citizens or “corporations.” The ease with which it seems so many Americans would have forced the pizza shop to cater a gay wedding, and the blatant anger with which so many Americans denounced PayPal, suggests that were true democracy to rule in this country, it would quickly devolve into a theocratic mobocracy- be it a theocracy of Christianity, or a theocracy of Progressivism.

Our institutions were designed, and have for two centuries evolved, to preserve a certain social stability and certain social liberties. If the Founders and their greatest heirs feared anything, it was the erosion of that order and those liberties by the imposition of revolutionary change or a single dominant social force. So when people advocate bold, revolutionary ends, like Progressives hoping to “get money out of politics” or Christian populists hoping to “make America great again,” (with coded appeals to making the country what it once was, reversing the 1960s, etc.) it concerns me. The American people have their unique qualities, but are fundamentally just as any other people- bounded by institutions and buoyed by prosperity, they live in freedom; unbound from those institutions and shackled by poverty, they turn to demagogues.

If our people is to regain its maturity, it needs mature leaders and a mature governing class, not the decadent ruling elite we have now. Fortunately, as I’ve argued before, it appears we’re at one of those great transitionary periods in American history where the old class falls and a new order rises. I pray that that new order is as respectful of religious liberty, “corporate” liberty, individual liberty, and liberty in all its senses as the leaders of tomorrow re-forge the institutions of the Republic.


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