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Archive for August, 2013

A friend of mine posted a link to an article this morning he prefaced with the question “Is sacrificing your religious liberty the price of market participation?”  The article, by Benjamin Wiker, entitled “The Religious-Liberty Quagmire to Come” discusses a recent Slate article sympathetic with the current HHS mandate overreach in which government attempts to abrogate the rights of people to exercise their religious liberty with their property, specifically duly chartered legal business entities.

The article’s author opposes the viewpoints expressed in the Slate article, by author Dalia Lithwick.  I oppose them also, but on grounds originating not just in my studies, but also by practical experience and logic.

The first point raised is this:

Lithwick argues, first of all, that corporations are distinct entities from individuals.

This is true in a literal sense.  Corporations have a legal identity that are separate from their owners in the same way that I have a legal identity that is separate from my oldest son.  You’ll note that I did not use my wife in that example.  It was not an accident.  While she is indeed an entity that is distinct from myself, we happen to live in a community property state, so we “enjoy” the dual status of having distinct legal identities, while legally being considered as having the same legal identity for legal, and more to the point, commercial, purposes.  This reality is imposed upon us by the state, which applies this status based upon an action we took based on a shared religious conviction, and retain based upon that same shared religious conviction.  We are each “owners” of that resultant fictional legal entity known as a “marital community”, which, at least in our case, exists and acts in both personal and commercial transactions in ways that express or are the result of our individual religious beliefs.

While individuals can have religious beliefs, corporations can’t. Once you establish a corporation, it is automatically a secular corporation.

This is what we called in law school a “false starting premise”.  The reason is simple.  The state’s blessing to act as a corporate entity does not automatically confer a “secular” (like the author of the piece, I also object to the common use of the word “secular”, and for the same reasons, however, for the purpose of this essay, I will use it in the context of the incorrectly presumed “neutrality” in which it is often used) status on the resulting entity.  The reason for this is simple.  State enabling statutes almost always permit corporations and limited liability companies to be established “for any lawful purpose”, which by its nature would include the conducting of any lawful business in a manner consistent with the religious faith of the owners of the entity in question.  In fact, thanks to the First Amendment, and its extension to the individual states, the states would be legally prohibited from restricting individuals from forming entities for such purposes.

The other obvious weakness in this rather remarkable assertion from Ms. Lithwick would be the fact that churches often incorporate as non-profit corporations in order to apply for Section 501(c)(3) status so that donations, gifts, and tithes maybe tax deductible to the donor. (Contrary to popular opinion, churches do not have to apply for this status to be tax-free.  They are already tax-free, as they should be, as a result of the First Amendment.)

Wiker states that Lithwick’s assertion is rooted in the decision in the Conestoga Wood Specialties Corp. decision.  The corporation is owned by a Mennonite Family which employs 950 people.  The family opposes the HHS mandates regarding abortion on religious grounds.  The Federal Judge hearing the case concluded:

“We simply cannot understand how a for-profit, secular corporation — apart from its owners — can exercise religion,” circuit Judge Robert Cowen wrote. “A holding to the contrary … would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”

Aside from the naked and unsupported (and unsupportable) conclusion that a corporation is secular, there are a few other weaknesses.  State law would rightfully permit me to draft and file for a client Articles of Incorporation or a Certificate of Formation establishing that the entity is “being formed for the express purpose of selling ice cream, and spreading the gospel of Jesus Christ, and any other lawful purpose,”, and there is nothing that the state or the Federal government could Constitutionally do to prevent me from doing so. Being a distinct legal entity doesn’t mean that a corporation cannot express or conduct itself based upon a specific political or religious viewpoint.  And while there are instances in which government may lawfully restrict what an owner does with its private property in certain balancing of the equities situations, at this time, I can think of none which directly conflict with the right of conscience.

The assertion of an automatic secular nature of corporations based on a theory of complete segregation between a legal entity and those that own them faces other philosophical and logical difficulties aside from being an assumption of a fact not in evidence.  First among them is the fact that one of the pillars the good Judge rests his opinion on is the notion that that an individual can exercise religious freedom, but a corporation cannot.  This point ignores the fact that corporations ARE allowed to exercise other First Amendment rights, such as freedom of speech, and Freedom of Association, which is the main principle underlying the freedom to enter into contracts with people of your choosing, or the freedom to hire people who you think make a good fit with your corporation, and will make a good employee.  Recognizing this, there is no logical or legal basis to presume that these freedoms can be exercised by a corporation or an LLC, but that those same entities can or should be barred from exercising religious freedom to act in a manner consistent with the religious beliefs of its owner.

The second weakness with this assertion is the fact that the income from many of these “separate, distinct legal entities” is reported not on a separate tax form for that entity, but on the personal tax forms for those who own those entities, which would hardly make sense if these were indeed separate and distinct from their owners.

The third weakness of this viewpoint is that our economy would be in much worse shape without corporations and LLCs because they make it possible for more people to provide goods and services at prices and in quantities that the risk that they would necessarily have to bear individually would either make prohibitively expensive, or practically impossible to provide.  While the very word “corporation” often evokes the image of boardrooms filled with grey suits making decisions that impact the livelihood of hundreds or thousands, or more, the fact is that the majority of corporations are closely-held businesses, where the ownership consists of a individuals, or small numbers of people, often members of the same family, or of one or two families. And in some instances, this is also true of those large corporations that I previously spoke of.  Ford is one example that comes to mind.  However, even if it wasn’t for the fact that a majority of these entities are small, closely held corporations or LLCs that permit individuals to offer products or services because of the risk management that the law permits through the use of these entities, there is also the fact that the law DOES allow certain individuals who offer goods and services through corporations and LLCs to refuse to offer those goods and services based on the individual owner’s right of conscience and/or religious beliefs, among other factors.  Doctors, who can refuse to perform abortions, and attorneys, who can refuse representation based on any factor at all, are two that come to mind.  While competence or having the requisite skill are among the reasons for these rights of refusal, they are not the ONLY ones.  And while it might be tempting to say that the personal nature of services rendered by these professions support such an exemption, the fact is that for nearly all closely-held business entities, the nature of what those individuals do is personal.  For such individuals, their business is at the forefront of their thinking.  It is the first thing they think of in the morning, it is what they contemplate as they drift off to sleep at night.  Their businesses ARE an expression of who they are, and  that “separate legal entity” invariably becomes associated with the individuals who own them.  The manner in which they conduct their business often expresses an opinion or a philosophy held dear to the owner of that business.  It is not reasonable or logical to suggest or expect that these individuals segregate their religious and spiritual identity and activity from the profession or career that they otherwise breathe and eat; to do so would be a denial of the very essence of the person that the law and society would find morally objectionable and repugnant if any other belief or activity was being discussed instead of the free exercise of religion. This is no less true for a baker of wedding cakes, or a photographer than it is for a doctor or a lawyer who has incorporated so they can ply their trade without risking the loss of everything they own and have worked for to one lawsuit.

Another logical weakness in this assertion is that many of these entities often are operated day-to-day in accordance with various codes of ethics voluntarily committed to by the owners and employees of the corporations and LLCs.  For an entity to be, even indirectly, conducted according to such a code of ethics, but presumably not capable of exercising a religious point of view is facially absurd.

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I’d like to think that things will get better, but the current prevailing prejudice against religion in some of the most litigious groups in our society leads me to believe that we’re in for a lengthy fight to preserve our first liberties.  Especially if examples such as the New Mexico photographer, and the pink swastika philosophy that seeks to punish those who do not wish to participate in their activities, regardless of whether not it makes any logical sense to compel those who object with their beliefs to provide a personal service or product is any indication.  But then, with a federal government that is engaging in similar unconstitutional behavior as a guide, there really is no reason to be surprised at the bold entitlement demonstrated in this strategy, which is why legal interest groups such as the ADF are going to become increasingly important and need our help in the coming years.

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In the wake of the Republican Party’s ambivalence and contempt for conservative, small-government ideals, and a complete unwillingness to fight any of the battles that matter, I’m thinking it is time for a new political party, founded upon the ideals of a small and limited government, and a ruthless disdain for all things “progressive”, including the ubiquitous but erroneous belief that the individual is simply not competent to determine how to spend their money, their time, and their labor, because they will invariably make the “wrong” decisions, and that government can, and should better decide for you how to spend these possessions of ours, along with the belief that government has a duty to protect you from the consequences of your decisions, even if it must first enslave you to do it.

Power based on the spending of a shrinking pool of other people’s money is a zero sum game, and for far too long, government has been expanding into areas and spheres of influence in which it has not traditionally had ANY authority, while treating small business as a cash register till to be dipped into whenever it wants more money to fund welfare masquerading as “charity” and setting its sights on the wallets of individual taxpayers, using compulsion and decrying any protest as a “lack of generosity” because we’re sick of letting government “be generous” with our money, preventing us from doing so in a way that would require accountability from the recipients.

Government is broke, and regardless of the extraordinary proposition propounded by Congressman Keith Ellison and others, it has NO right to simply confiscate more money from those who actually earn it, and who by virtue of their status as producers in society, already bear an ever-increasing burden of supporting a profligate leviathan that spends its days issuing regulations and rules like a king of old issuing edicts and proclamations that only serve to discourage ambition and yoke entrepreneurialism to a stultifying collar of mediocrity, ensuring that instead of a rising tide to lift all boats, we’re dropped to a muddy and rocky bottom, with the rest of the broken wreckage of dreams and industriousness.  Those in Washington D.C. who are ostensibly there to represent our interests have lost sight of what those interests are, and have become part of a leviathan which is diligent in ensuring that its cogs never get sullied by the indignity of having to live under the same laws, rules, and regulations that it makes for us, while at the same time, turning a blind eye to the blatant lawlessness being practiced by its various components.

As government swells, it increasingly forces its way into the minutiae of the average person’s daily life, until the only right to privacy that it is willing to recognize is the right of a mother to snuff her child in utero; all else must be yielded to the state upon its demand, whether it is wage data, or the number of toilets in your home.  You cannot be forced to quarter troops in your home, but none the less, government believes it can compel you to disclose information about that could be gleaned from such an act.

Enough.

The time has come for the “Nunya Damn Business” Party.  A party that will not compromise on removing government from the performance of tasks it had no business doing in the first place.  A party that will shrink the current bloatocracy by eliminating laws and regulations that have long ago advanced beyond anything resembling a reasonable safeguard, and have turned into a rolling juggernaut that gets heavier, slower, and more intrusive with every attempt to bubble wrap people in an attempt to save them from themselves.  The Nunya Damn Business Party recognizes the concept of curtilage, and will not intrude upon individuals’ quiet enjoyment of their residences unless to  stop a crime.  It will not make increasing demands on the individual citizens’ time, in essence confiscating even more from those it is supposed to serve, not be served by.

Our society is on a collision course with itself, navigated there by a government that increasingly rejects any limitation on its scope or reach, that has created a class of dependents who are incapable of recognizing their chains, paid for more and more by a class that cannot help but to feel its chains.

Freedom is the answer for both, and the satisfaction of honest labor will do more to refresh American Exceptionalism and national solvency than any government entitlement or program.  Join me.

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So I got a letter from my friends at the Census Bureau.

Frankly, after my last phone conversation with them, I’m shocked.  But after reading the letter, I’m appalled.  The Census Bureau’s dedication to finding more ways for my government to spend other people’s money buying votes is almost…heroic.  But I’m getting very tired of the idea that I should be an unpaid information gatherer who needs to cheerfully and dutifully provide to them information that can be used to aid identity theft AND target us for more government “dedication”, and that their assurances that our information will be kept confidential and not be misused should be trusted.  In the immortal words of Brother Theo, “I can only assume someone has been spray painting “IDIOT” on my forehead again.”

Dear Resident:

Recently, a U.S. Census Bureau telephone interviewer contacted your household on behalf of the American Community Survey (ACS).  The Census Bureau is conducting this survey under the authority of Title 13, Section 141, 193, 221, of the United States Code, and response to this survey is required by law.  I understand that you have some concerns about participating in this survey, but your household’s participation is important to the success of this survey.

The American Community Survey contains questions about your household characteristics including such topics as education, employment, and housing.  The primary goal of this survey is to provide the information each year about the social, economic, and housing characteristics of the United States.  Your participation helps provide the information needed by your community, county, state, and nation to plan and fund programs at all levels.  The ACS will provide detailed information updated every year.  Before the ACS, such information was only available from the census which is done every 10 years.

We want to emphasize that any information that you give to our interviewer will be kept confidential.  By law, the Census Bureau cannot publish or release to anyone any information that would identify you or your household (Title 13, Section 9).  The information you can provide can be used only for statistical purposes.

We hope that you participate in this survey to help us improve the information that you and others provide about your community.  If you have any questions, call us at 1-888-817-2153.  We will be pleased to help you.

Sincerely,

James B. Treat

Chief, American Community Survey Office

Let’s brake it down, shall we?

Dear Resident:

Recently, a U.S. Census Bureau telephone interviewer contacted your household on behalf of the American Community Survey (ACS).

More than one, actually.  I made the mistake of being polite to the first one.  As the second one learned, I am not amused by unwarranted intrusions on my privacy and my time.

The Census Bureau is conducting this survey under the authority of Title 12, Section 141193221, of the United States Code, and response to this survey is required by law.  I understand that you have some concerns about participating in this survey, but your household’s participation is important to the success of this survey.

1.  I’m tired of the passive-aggressive bullshit.  Seriously, you set the wrong tone sending an attorney a fat envelope with the words “YOUR RESPONSE IS REQUIRED BY LAW” on the outside.  And the “Pretty please, participate please?” offered in the same sentence as a reminder that my response is required by law isn’t convincing, it is embarrassing, as I try to keep from laughing out loud at this hamfisted approach.  Knock it off.

2.  I have a law degree.  Continuing to tell me that 13 USC 141, 193, and 221 “gives you the authority” to seize my time, and make me an unpaid gatherer of information that you have no authority to demand of me isn’t very convincing.   You are empowered to ask questions that would tend to aid in the apportionment of Congressional representation.  Nowhere in the three sections you cite are you granted authority to ask me about my education level, my employer, my wages, my commute, my residence and the amenities in it, or the health of the people who live under my roof.  These have as much to do with Congressional apportionment as a goldfish has to do with a delivery truck, and even if the authority to ask such things was clearly spelled out, which it is not, I’m not some vassal or serf to be bullied into coughing up my papers, and letting you know what goes on behind my closed doors simply because Congress wants to know.  Perhaps you have heard of the penumbras and emminations of privacy rights in the Constitution, at least those not specifically enumerated in the Bill of Rights?  If “privacy” means enough that a woman can hire a doctor to snuff her child in utero, then it certainly would permit me to tell a nosy government that still works for me to go pound sand when it starts asking me to spend significant amounts of my time sharing information with it which is none of its business.

3.  I don’t “have some concerns about participating in this survey” (did you learn condescension on our dime as well?) ; I DON’T TRUST YOU.  I read the pretty pamphlet you included with the survey, which outlined how your employees are prohibited by law from disclosing or misusing my confidential information.  It might have even been reassuring, had I not been paying attention to recent news, but given the fact that the IRS is subject to laws and regulations more specific and strict regarding the treatment of citizens’ personal data, and the late revelations demonstrating that IRS employees weren’t deterred one whit by these laws and regulations, you’ll just have to understand that we both know I’d have to be three days dead to trust your agency with that data.  No thank you.

The American Community Survey contains questions about your household characteristics including such topics as education, employment, and housing.  The primary goal of this survey is to provide the information each year about the social, economic, and housing characteristics of the United States.  Your participation helps provide the information needed by your community, county, state, and nation to plan and fund programs at all levels.  The ACS will provide detailed information updated every year.  Before the ACS, such information was only available from the census which is done every 10 years.

1.  Those household characteristics are as related to the topic of the census as a goldfish is related to a delivery truck.

2.  So, as I correctly discerned from the outset, the purpose of this survey is to get information that will allow our elected officials to go shopping with our money and buy votes.

3.  Every year?  I definitely didn’t see the authority to conduct a survey annually in 13 USC 141.  In fact, it was very specific about surveys in addition to the decennial census, but it did NOT authorize the taking of a survey annually.

We want to emphasize that any information that you give to our interviewer will be kept confidential.  By law, the Census Bureau cannot publish or release to anyone any information that would identify you or your household (Title 13, Section 9).  The information you can provide can be used only for statistical purposes.

I want to emphasize that I don’t trust you, no one with three functioning brain cells has any reason to trust you, and you are asking for information that is none of your business.  If I can’t be forced to quarter troops in my home, then I can’t be compelled to reveal to a Census Bureau employee information about amenities in it, or the people who live in it.  And I do not appreciate the presumption that my free time is yours to hijack for purposes of me reporting on myself and my family so that Congress can go on a vote-buying shopping trip with even more of other people’s money.  I realize that you think that the 40 minutes you estimated would be necessary for me to fill out your survey was an innocuous demand on my time.  But you’re only one of many agencies which think that they are making innocent and de minimus demands on my time.  And it is starting to add up.

The fact is that I am citizen of a nation founded on the unique recognition of the rights of the individual…a concept we felt so strongly about that we drafted a Bill of Rights to ensure that the power of government would be limited and subservient to the individual.  This hasn’t been revoked, nor have these rights been surrendered…a fact that many federal employees and elected officials are on the cusp of being very deliberately and unpleasantly reminded of.

The law you cite doesn’t give you the authority to ask the questions you have asked, and even if it did, it is an unwarranted and intrusive invasion of my privacy.  I answered the only questions that the statute can be reasonably said to allow, and they are the only ones I have any intention of answering.  Your time might be better served harassing someone who doesn’t understand the difference between a citizen and a subject.

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