07/03/2014 09:27 pm ET Updated Sep 02, 2014

The Hobby Lobby Decision and the Samson Option

In the name of expanding right to life politics in the Hobby Lobby case, the Supreme Court may have leveled the notion that we are all subject to the law.

That's because the real issue now isn't abortion. By giving a corporation the same civil rights as natural persons, the issue is now how much farther those rights go.

That corporations have the rights of natural persons is, for better or worse, settled law -- stare decisis -- in the United States, and the country set off on that road in 1819, in Trustees of Dartmouth College v. Woodward. The doctrine was set in stone in 1886 in the case of Santa Clara County v. Southern Pacific Railroad.

Whether these artificial creations of the state could then assert religious beliefs is what SCOTUS affirmed in Hobby Lobby, and in the process, the Justices ruled that the claim of corporate personhood is identical to those of flesh-and-blood persons.

But if Hobby Lobby can assert its religious beliefs against a law, the next question is from what other government obligations a person can claim an exemption on religious, or even purely ethical, grounds.

One of them could, for instance, claim that it need not honor any demands for payment for a debt after seven years, as laid down in Deuteronomy 15:1, and Nehemiah 10:31. An individual could then claim they needn't keep paying of their mortgage, or their student loan, and the bank, or Sallie Mae, would have to prove that the claim had no basis in the person's true beliefs. Since it's impossible to prove a negative, the result would be people walking away from billions of dollars in debts, scot-free.

And in fact Justice Kagan raised just this problem during the oral arguments stage of Hobby Lobby, telling Paul Clements, arguing for the company, that "Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative."

Kagan was paraphrasing Justice Antonin Scalia's opinion in the 1990 case Employment Division v. Smith in which he wrote: "The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind," Scalia wrote in the 6-3 opinion, "ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."

As both Justices observed, it's a small step from the import of the Hobby Lobby decision for an individual, or a corporation owned by pacifists, to claim it needn't pay that portion of its income taxes that goes to national defense, or some other essential government function, since doing so violates their beliefs. This is very dangerous ground.

And there's the other side to this: If corporate persons and natural persons have the same Constitutional rights, why don't they also have the same Constitutional obligations, and why aren't they subject to the same penalties of law?

If, for instance, a bank were found to be guilty of intentional, felonious mortgage fraud, shouldn't that corporation be liable to the same penalties as a natural person -- imprisonment?

Or let's say a car company was found to have known about a lethal flaw in its products for years, and instead of moving to fix it, hid the information from the public. Is the corporation guilty of negligent homicide? And if so, should the corporation be imprisoned, or even executed?

Take that course, and corporate claims to be exempt from laws they don't want to obey would vanish overnight. All it would take is an ambitious DA somewhere to pursue a criminal case against a corporation, and press for imprisonment.

For instance, the legal doctrine in a contractual or negotiation dispute is that a corporate agent has apparent authority. That's why call center employees have to stick to a script vetted by company lawyers.

Now consider the recent truck/bus accident that killed one person and badly injured actor Tracy Morgan. It was a Wal-Mart truck . Why should the driver be indicted when he was acting as an agent of Wal-Mart, which implicitly endorsed his over-work? Shouldn't it be Wal-Mart that's indicted for vehicular manslaughter?

Looked at within the broad scope of the law -- and I'm not hearing anyone claim this decision is anything but broad -- the impact of this decision is likewise broad, and has many implications never intended by the people who pressed it. In this context, abortion is almost a side issue.