Market Complicity and Religious Freedom
The controversy over the Affordable Care Act's mandate that health insurance policies cover birth control brings to a head a complicated tangle of issues. Some are legal: What is a corporation, and how far can government go in regulating its behavior? Some are philosophical: Who has a right to free speech? How far does freedom of religion go? Do corporations have ethical responsibilities? Some are theological: Does artificial birth control usurp God's prerogatives? Does doing business with an immoral company make us complicit? And there are political questions, too: How can the society devise a working healthcare system that a strong majority of the people can support? I want to propose a constructive way of thinking about these questions that may help us toward understanding each other's positions, and reaching a solution to this problem.
According to the Supreme Court (and Mitt Romney), corporations are people. When the Supreme Court said this, in the infamous Citizens United v. Federal Election Commission case, they were drawing on old legal language that emphasized that corporations have some of the legal characteristics that people have. Unlike sole proprietorships or partnerships, corporations have a financial existence independent of their owners. A corporation can own property in its own name. It can make promises and enter into contracts. It can borrow money. It can sue and be sued. But no matter what happens, the owners' liability is limited to the amount of money they invested when they acquired their equity share. Ownership can be transferred with a simple exchange of money for stock, without complicated issues of titles and estates, or redrawing a partnership agreement. This makes the corporate form of organization ideal for an industrial market economy.
Legal metaphors are one thing; reality is another. A corporation is not a person. Corporations are groups of people that are organized for particular purposes, such as conducting business. They are given independent financial existence by charter from a state government so that they can carry out their purposes. Unless their purposes are set out in their charter to be particularly religious, they do not have any claim to religious rights. A corporation chartered to do business has no religious rights but is obligated to deal with all people (buying and selling) in a non-discriminatory manner. A corporation that holds itself out to the public for business may not impose its religious or political views on its employees, vendors, or customers.
Corporations do have owners, and shouldn't they be able to express their moral and even religious values and standards in the way that the corporation conducts its business? This seems to be what Mitt Romney had in mind: Corporations reflect the convictions of the people who own them. My answer would be yes, with qualifications. Stockholders delegate their decision-making authority to a board of directors, who in turn hire managers. If the managers make business decisions that the stockholders consider immoral—say, exploiting workers or polluting the environment—the stockholders can use their votes to replace the board and the management. Failing that, they can follow the traditional Wall Street Rule: If you don't like the company's management, sell the stock.
Do corporations have freedom of speech? That is the question the Court faced in Citizens United. Again, there is a history here. The law has long recognized that business corporations engage in something called "commercial speech." They have a fundamental right to describe their products and services, and try to persuade people to buy them. This right is the foundation on which the courts have extended commercial speech rights to providers of professional services (like lawyers and doctors), pharmaceuticals, and medical devices, who were once prohibited from advertising.
But there are limits on the freedom of commercial speech, limits enforced by state governments and by regulatory agencies such as the Food and Drug Administration and the Federal Trade Commission, and recognized by the courts. Such speech must be truthful and must not mislead. Interest rates must be stated in standard terms, and safety warnings must be disclosed. There may be no unsubstantiated health claims. There is a much higher legal standard than there is for political or religious speech, to which a more absolute version of the First Amendment free speech right applies. Until Citizens United, this greater degree of latitude was reserved for natural persons and for corporations in the media business ("the press"). There were occasional full-page ads in the Wall Street Journal or the New York Times by corporations expressing their political positions or ideologies (Mobil Oil Corporation was well-known for this), but nothing resembling the "political action committees" or "social welfare organizations" of today. Traditionally, most corporations were reluctant to take political stands for fear of alienating potential customers or business partners.
This doesn't yet address the case of the moment: a government-imposed rule that all business corporations are legally required to follow but that the stockholders consider to be immoral. This would be the case of the rule under the Affordable Care Act that requires businesses to provide their employees with health insurance covering contraception, which is immoral according to strict Roman Catholic teaching. The easy answer, which, as a Protestant, I believe to be correct, is that the decision to use contraception properly belongs to the couples who are having sexual relations, not to their employers. It is those employees (or other customers of the insurer) who are responsible for making the decision and who bear the guilt if they decide wrongly. The fact that the cost may be covered by insurance is of no consequence.
For Roman Catholics, the answer is not so easy. Catholic doctrine teaches that contraception is wrong. Catholic theology also teaches the doctrine of "market complicity," which says that if you contribute to funding an immoral activity, however indirectly, you share in the guilt associated with the activity. In buying insurance that covers contraceptives, the corporation (meaning its stockholders) becomes guilty of the sin of contraception, even if neither the owners nor any of their employees actually use it, as long as some customer of the insurer uses it. Any rule or requirement forcing them to do something forbidden by their religion violates the owners' First Amendment religious rights.
There are recognized exceptions to market complicity. When it comes to taxation, market complicity does not apply. There are many things we fund as taxpayers that we may not agree with, or even find immoral. But with taxes, the payment is not in any sense voluntary. We are compelled to pay under penalty of law. Also, taxpayers have voice in the political process of deciding the government budget in a way that customers do not have voice in the operation of an insurance company, but only have the choice (sometimes) of taking their business elsewhere. Theology aside, the courts have held time and time again that requiring, say, members of the peace churches to pay taxes to support wars is not a violation of the First Amendment. Interestingly, in the Supreme Court's Obamacare case, the controlling opinion held that the requirement to buy health insurance should be legally regarded as a tax, rather than as a regulation of interstate commerce.
I think it is safe to say that the vast majority of Americans, including most Protestant Christians, do not believe that contraception is immoral. It can be argued that, since polls show that most Catholics use contraception at some point in their lives, many Catholics also disagree with their church's teaching on the subject. Most Americans, including Protestants, have never heard of market complicity, but I think that if pressed, most would consider the idea to be counterintuitive, at least. Why should full ethical responsibility for decisions not be presumed to rest with those who have the authority to make them? That's certainly the official attitude our government takes with many activities that are legal but sometimes (or often) immoral, like abortion. Restricting the choices available to people by restricting insurance coverage undermines public support for the objectives of the Affordable Care Act.
Of course, when it comes to Constitutional rights, majority rule does not decide the issue. Yet ethics and law sometimes have a tenuous relationship. There are many instances where the law permits things that are sometimes or always immoral, according to certain religious traditions or teachings. It is not common to require actions that religious people consider immoral. However, it is expected or even required for a business corporation to offer service to people whose activities the business owners might not condone, when market complicity might apply. Should a sporting-goods store refuse to sell a hunting rifle to a customer who is known to use such weapons illegally and perhaps immorally to destroy endangered animals? Can a drugstore refuse to sell contraceptives to an unmarried couple? Legally, the stores cannot even ask the kinds of questions that would reveal that information but are required to sell to a qualified buyer. The State of Arizona's attempt to clear the legal way for discrimination against gay people raised consciousness about this and created a political firestorm. The law probably would not have survived a court challenge.
It raises serious problems for Christians if market complicity requires us to look comprehensively at the morality of all potential business partners and refuse to deal with any who fall short of a very rigorous test. For one thing, there are legal and practical problems of obtaining the information necessary for such a test. Such inquiries are likely to violate various laws against discrimination and invasion of privacy and offend people with whom we wish to do business. It is also likely that the volume of such information will overwhelm our ability to process it. And it is likely to become very difficult to find people to do business with who meet our very high standards. Some businesses are better than others, but if you look hard enough, every business has done something that is morally questionable. (Sometimes we Calvinists call this "total depravity".) If we try to resolve things by dealing preferentially with people of our own faith, we fall afoul of the Christian principle that we should deal with all people we encounter in the ordinary business of life according to universal moral principles as we understand them, without any preferential treatment. Of course, this idea is associated more with Calvinism than with Catholicism.
So why should businesses behave ethically at all? If the organization has legal and financial existence, but no religion or soul, and is compelled only to follow the law, why should the managers worry about doing the right thing? Managers do carry not just legal but also moral responsibility for the decisions over which they have authority in their corporate roles. We expect the managers of businesses to behave in an ethical fashion because it is right, and because the continued stability and existence of a market economy depends on people behaving ethically. When the organization sells a product, it has to be truthful in its representations and fair in its pricing. It has no control and should bear no responsibility for what the buyer does with the product after purchase. Similarly, when the corporation hires people, it should compensate them fairly, including providing health insurance. It has no control and should bear no responsibility for what the workers do with the insurance.
Does market complicity add to the ethical responsibilities of corporations? Here we come to the heart of the matter. It seems to me that the theology of market complicity is not meant as a practical ethical principle that we can apply in daily life. It is rather one of those teachings that is meant to show us how deeply evil is embedded in the world around us and how inextricably enmeshed we are in it, no matter how hard we work at being good. We cannot help sinning. It is like the commandment against coveting, or the teaching of Jesus about lust in Matthew 5: 28. We are all guilty of adultery just because we are biologically programmed for sexual desire. We are all guilty of covetousness, because of our drive to possess what we see in advertising. We need to specialize and exchange with others, but somewhere in the process (who knows where?) sin will be abetted. There is no cure for this but the grace of God.
The law cannot make us righteous, but it can help us to live together in just relationships. We cannot arrest people for impure thoughts, unless they turn into theft or sexual assault. So too, we cannot let people opt out of, and thus undermine, the healthcare system for the reason that somebody somewhere may have sex outside of marriage or have an abortion to escape the responsibility of bearing and/or raising a child. The greater sin is to see the stranger lying at the side of the road, bruised and bleeding, dying, and just pass by on the other side.
John P. Tiemstra taught economics at Calvin College for 37 years. He is the 2009 recipient of the Thomas Divine Award "for lifetime contributions to social economics" from the Association for Social Economics. His latest book is Stories Economists Tell, published by Pickwick Publications (Wipf and Stock) in 2012.