Grave threat to religious freedom being mounted

Summary: 

Certain members of the Congress have proposed an amendment to the United States Constitution that, if ratified, will strip incorporated churches of their Constitutional rights. And not just churches -- any kind of corporation, whether for profit or not for profit, would be stripped of its rights as well.

The amendment does this by specifically defining "people, person, or citizen" to mean only individual human beings and specifically excluding from that definition, "corporations, limited liability companies or other corporate entities."

Background:

The presumptive rationale for the amendment is a Supreme Court decision (Citizens United v. Federal Election Comission) that invalidated the part of the Bipartisan Campaign Reform Act (known as BCRA or “McCain-Feingold”) that restricted corporate expenditures in elections. The amendment's sponsors say that the only way to reverse the Supreme Court's decision is to amend the Constitution. Since the Court held that corporations have Constitutional status as persons before the law (in fact, a longstanding legal principle, not a novel ruling), the amendment therefore dismisses such entities from personhood as Constitutionally defined.

The Amendment

The proposed amendment is called the "People's Rights Amendment," sponsored by US Rep. Jim McGovern (D.-3rd District, Mass.) and is supported by US House minority leader Rep. Nancy Pelosi (D.-8th District, Calif.) and others. The PRA would amend our Constitution so as to define "person" or any part of "the people," as the Constitution uses the term, to mean only individual human beings. The PRA reads in entirety:

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons. 

Section 2. The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state, and such corporate entities are subject to such regulations as the people, through their elected State and Federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution. 

Section 3. Nothing contained herein shall be construed to limit the people's rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are inalienable.

Rep. McGovern explains it this way:

 

 And Rep. Pelosi says,

 

What this means for America and its churches

UCLA Law School Prof. Eugene Volokh is one of the forty most cited law-faculty members in the country.

These citation counts refer to citations in law review articles, but his works have also been cited by courts. Six of his law review articles have been cited by opinions of the Supreme Court Justices; twenty-one of his works (mostly articles but also a textbook, an op-ed, and a blog post) have been cited by federal circuit courts; and several others have been cited by district courts or state courts.

According to Prof. Volokh, the PRA would "Strip Most Newspapers, Churches, Nonprofits, and Other Corporations of All Constitutional Rights."

So just as Congress could therefore ban the speech of nonmedia business corporations, it could ban publications by corporate-run newspapers and magazines — which I think includes nearly all such newspapers and magazines in the country (and for good reason, since organizing a major publications as a partnership or sole proprietorship would make it much harder for it to get investors and to operate). Nor does this proposal leave room for the possibility, in my view dubious, that the Free Press Clause would protect newspapers organized by corporations but not other corporations that want to use mass communications technology. Section 3 makes clear that the preservation of the “freedom of the press” applies only to “the people,” and section 2 expressly provides that corporations aren’t protected as “the people.” 

Congress could also ban the speech and religious practice of most churches [boldface added], which are generally organized as corporation. It could ban the speech of nonprofit organizations that are organized as corporations. (Congressman McGovern confirms this: “My ‘People’s Rights Amendment’ is simple and straightforward. It would make clear that all corporate entities — for-profit and non-profit alike — are not people with constitutional rights. It treats all corporations, including incorporated unions and non-profits, in the same way: as artificial creatures of the state that we the people govern, not the other way around.”) Congress could ban speech about elections and any other speech, whether about religion, politics, or anything else. It could also ban speech in viewpoint-based ways. 

State legislatures and local governments could do the same. All of them could seize corporate property without providing compensation, and without providing due process. All corporate entities would be stripped of all constitutional rights. Quite a proposal; I blogged more generally about this issue here, but it seems to me that simply listing the consequences of Congressman McGovern’s proposal largely suffices to explain its flaws.

As a clergyman, I will speak (while I can, I suppose) about the effect the PRA would have on churches or other religious assemblies. Prof. Volokh is correct that it is commonplace for a church to be incorporated as a not-for-profit corporation. One big reason is because of tort liability. As a tort lawyer explained at a meeting I attended, if a church is not incorporated and someone is injured on the property, that person can sue the entire membership of the church, each member being named individually in the suit. Because of the established principle of joint and several liability, all members of unincorporated churches can be held financially liable for damages awarded. Each member can be ordered by the court to pay a pro-rata share of the damages. Not only that, every individual church member is potentially liable for the entire amount of the damages. This has happened, said this trial lawyer, and the only way to prevent it it to make the church a legal entity, or "person," under the law.

The PRA would remove the protection completely that incorporation affords because, as Rep. McGovern says explicitly, "corporate entities" would not have Constitutional rights -- at all.

Prof. Volokh also points out that the only present arrangement that would escape the PRA's tentacles is a partnership. After noting that any corporation would be stripped of Constitutional rights, including, say, media conglomerates (are you paying attention, CNN?), he goes on to say,

Now this would have two effects. First, any media organization that wants to be free would thus have to give up the benefits of the corporate form, and will have to organized as a partnership. This will make it much harder for those media organizations to raise operating capital, dealing with changes in ownership as partners die or leave, and the like.

Prof. Volohk's coblogger, Ilya Somin, Associate Professor at George Mason University School of Law, explains the tyrannical nature of the PRA thus:

Thus, the PRA would deny all constitutional rights to all entities organized as corporations. If the Amendment passes, government would be free to search corporate-owned premises at will, restrict freedom of religion at houses of worship owned by corporate entities (which includes most churches), condemn corporate-owned property for private uses and without paying compensation, and so on.

Understand what this means!

The effects of the PRA, if ratified, are almost too innumerable to imagine. But here are three examples.

1. Incorporated churches would have no right of redress or access to the courts if their property is claimed by local, state or federal government under eminent domain. In fact, churches' real property could be seized by governments with no notice or reason given and with no payment made. Why? Because the Fifth Amendment to the Constitution states that

No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

But an incorporated church (and any incorporated business, no matter how small) will not be a "person" under the terms of the PRA, and therefore shall not be entitled to any of these rights or protections.

2. Incorporated entities of churches, such as the United Methodist Printing House, could find themselves with no First Amendment rights of freedom of the press. Here is why:

a. The First Amendment states in part, "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; ..."

b. However, Section 2 of the PRA excludes the UM Publishing House as being included in the definition of "the people."

c. Section 3 of the PRA specifies exactly that "Nothing contained herein shall be construed to limit the people's rights of freedom of speech, freedom of the press, ..." but the PRA has already defined the UM Publishing House outside the boundaries of "the people."

3. The First Amendment also protects, "the right of the people peaceably to assemble," but the PRA would utterly separate this right of church members from the church itself because an incorporated church has no rights. Governments from local level to federal could padlock a church's property (or simply seize it entirely). Note that the PRA's Section 3 does not reinforce freedom of assembly, only "freedom of association." While assembly is definitionally personal presence with one another, "association" has no such meaning. We would have only the "right" to call ourselves United Methodists, but not the right personally to assemble together on any property owned by our incorporated church.

A word to skeptics

I would say to readers who are skeptical of the conclusions that Professors Volokh and Somin draw, or of the implications I identify, please just consider the record of the federal government over the past half-century (or more) and ask yourself exactly why you are skeptical:

Self restraint on the part of government officials or bureaucrats?  Based on what empirical or historical evidence do you think that future governments will be more restrained than those of the last several decades?

Good will on the part of government agencies? Again, based on what historical record and what reasons?

Try to think of a single time when government, having been granted (or having seized) the power to exercise more control or regulation of citizens' lives has failed to use that authority beyond what was ever envisioned -- regardless of which party has controlled the Congress or the White House at the time. We would do well to heed George Washington's warning, "Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master."

Next steps

I am presently working to draft a resolution to be presented to the annual conference of the Tennessee Conference in June that, if adopted by the annual conference, will put the annual conference on record as opposing ratification of the People's Rights Amendment and urging Tennessee's two senators and the US Representatives of the Tennessee Conference are to vote against it if/when the time comes.

Presently, I am seeking co-sponsors of this resolution which I will post on this site when I have finished it. I also will seek sponsorship of the resolution by the Tennessee Conference's General Commission on Church and Society.

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