Did you know that a for-profit corporation can be African American? Actually, a court recently ruled that a corporation can be an African American person under federal law.
This legal declaration did not come from an eccentric free-market theorist. Nor can it be found in the “dreaded” Citizens United Supreme Court case. It was affirmed earlier this month, on March 6, as the overwhelming consensus view by an Obama appointee to the Fourth Circuit court of appeals. The ruling allows minority-owned companies to object to racial discrimination committed against them under the Civil Rights Act of 1964.
This ruling illustrates a larger dichotomy—arguably a hypocrisy—in the public debate over the upcoming Obamacare cases involving the Hahn family’s Conestoga Wood Specialties (my client) and the Green family’s Hobby Lobby Stores, and whether the government should have the power to coerce family businesses to provide abortion products in their health plans.
The fundamental reality in the Conestoga and Hobby Lobby cases has long been recognized by the courts, including San Francisco’s Ninth Circuit: when a family seeks to earn a living in business, it brings its religious values to the table. And if the government threatens it with massive fines unless it violates its religious practice, the family and its business get their day in court.
A gaggle of special interest groups supporting Obamacare’s coercion is outraged at this suggestion. They profess to be shocked—shocked!—that anyone would say a family business has religious freedom. But these same groups apparently favor a legal regime that says for-profit corporations can be racial minorities and can exercise the most intimate and private constitutional “rights” to contraception and abortion. Their outrage is withheld until families in business claim to be religious.
Conestoga and Carnell: Comparing the Cases
In Carnell Construction Corporation v. Danville Redevelopment and Housing Authority, an African-American-owned for-profit construction company in Virginia accused a local government—which had awarded the company a federally subsidized building contract—of racial discrimination during the building project.
The Civil Rights Act of 1964, perhaps most well-known for prohibiting racial discrimination against employees, also has a provision (Title VI) declaring that “No person in the United States shall, on the ground of race, color, or national origin . . . be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Carnell Construction’s African-American owner did not personally bid on the contract. That was all done in the name of the company. Therefore, the court had to consider whether a for-profit corporation can be a racially identified “person” who may legally bring a “discrimination” charge before the court.
The court emphatically said yes, citing two reasons that may begin to sound familiar to those of you who know the arguments in Conestoga and Hobby Lobby.
First, the court reached the commonsense conclusion that a closely held for-profit corporation is an enterprise undertaken by a group of people. Those people have characteristics, such as race, that they bring to work every day and can’t leave at home. If discrimination occurs due to the owner’s race, the Title VI ban on discrimination is implicated even though the company is the technical victim of that discrimination.
“Several other federal appellate courts” agree on this, the Fourth Circuit noted. It quoted the federal appeals court in New York as correctly saying it would be “hard to believe” that discrimination could be allowed to occur against a company because of the race, color, or national origin of the owner, and yet no one could sue—not the owners, because they aren’t parties to the contract, and not the corporation, because it is a corporation.
Second, the Fourth Circuit observed that its conclusion was necessitated by the straightforward text of the Civil Rights Act. But the Act does not define what a “person” is who can suffer racial discrimination. Instead, whenever a federal statute has no definition, it reverts to the federal code’s general definitions in the Dictionary Act. The Dictionary Act, in turn, specifies that person means individuals or “corporations,” unless the context indicates otherwise. Since no such context exists, the Fourth Circuit said it further agreed with the Ninth Circuit that “a minority-owned corporation may establish an imputed racial identity” based on its owner’s race.
It would be hard to come up with a more blatant contradiction between what the government rejects as absurd in Conestoga and Hobby Lobby, and what it considers a given when it comes to combating racial discrimination. A family or close-holding individual business owner brings his values and his entire self—his faith no less than his race—to his daily work. And like Title VI, Religious Freedom Restoration Act (RFRA) protects “persons” from discrimination, relying on the Dictionary Act’s inclusion of corporations in that protection. If the government discriminates against an individual’s “company” because of his race—or imposes massive fines because of his practice of religion in that company—then legally protected rights are being infringed upon, and he, the company, or both can have their day in court. But the government and its special interest supporters deny that this basic interpretation applicable to Title VI and race also applies to RFRA and religion.
The government and special interest groups show themselves to be similarly hypocritical in other cases. The Supreme Court has, of course, declared contraception and abortion to be within a “right to privacy,” calling those rights “personal” and “intimate.” And we all hear of the constant lawsuits brought by Planned Parenthood, the Center for Reproductive Rights, the ACLU, and their allies to try to strike down laws that even mildly restrict abortion.
But what you may not have noticed until now is that in case after case, CRR’s clients include abortion for-profit corporations (like West Side Clinic, Inc., in Fort Worth, Texas), and assert that those corporations can exercise the “right” to abortion and privacy. By this logic, Kermit Gosnell could have exercised personal constitutional abortion “rights” in his for-profit house of horrors on Philadelphia’s Lancaster Avenue, but the Hahns can’t exercise their Christian beliefs in a business the family started in their garage in nearby Lancaster County.
To recap: Planned Parenthood, the ACLU, and their allies apparently agree that a for-profit corporation can be an African-American person; it can exercise the “right” to abortion and contraception; and it can file lawsuits against any government action taken against them on these grounds. But under no circumstances may a family in business defend itself when the government forces it to buy abortion products for other people. Got it?