It came to light recently that Facebook, in collaboration with some researchers at Cornell University, had conducted a research study on some of its users, manipulating what users saw in their news feeds in order to see if there was an appreciable impact on what those users themselves then posted. Would people who saw happy news then post happy stuff themselves? Or what? Outrage ensued. After all, Facebook had intentionally made (some) people feel (a little) sadder. And they did so without users’ express consent. The study had, in other words, violated two basic rules of ethics.
But I’m not so sure there was anything wrong with Facebook’s little experiment.
Two separate questions arise, here. One has to do with the ethics of the Cornell researchers, and whether Cornell’s ethics board should have been asked to approve the study and whether, in turn, they should have approved it. The other has to do with the ethics of Facebook as a company. But this is a blog about business ethics, so I’ll stick primarily to the question about Facebook. Was it wrong for Facebook to conduct this study?
With regard to Facebook’s conducting this study, two substantive ethical questions must be dealt with. One has to do with risk of harm. The other has to do with consent.
Let’s begin with the question of harm. The amount of harm done per person in this study was clearly trivial, perhaps literally negligible. Under most human-subjects research rules, studies that involve “minimal” risk (roughly: risks comparable to the risks of everyday life) are subject to only minimal review. Some scholars, however, have suggested a category of risk even lower than “minimal,” namely “de minimis” risk, which includes risks that are literally negligible and that hence don’t even require informed consent. This is a controversial proposal, and not all scholars will agree with it. Some will suggest that, even if the risk of harm is truly tiny, respect for human dignity requires that people be offered the opportunity to consent — or to decline to consent — to be part of the study.
So, what about the question of consent? It is a fundamental principle of research ethics that participants (“human subjects”) must consent to participate or to decline to participate, and their decision must be free and well-informed. But that norm was established to protect the interests of human volunteers (as well as paid research subjects). People in both of those categories are, by signing up to participate in a study, engaging in an activity that they would otherwise have no interest in participating in. Having someone shove a needle in your arm to test a cancer drug (or even having someone interview you about your sexual habits) is not something people normally do. We don’t normally have needles stuck in our arms unless we see some benefit for us (e.g., to prevent or cure some illness in ourselves). Research subjects are doing something out of the ordinary — subjecting themselves to some level of risk, just so that others may benefit from the knowledge generated — and so the idea is that they have a strong right to know what they’re getting themselves into. But the users of commercial products — such as Facebook — are in a different situation. They want to experience Facebook (with all its ups and downs), because they see it as bringing them benefits, benefits that outweigh whatever downsides come with the experience. Facebook, all jokes aside, is precisely unlike having an experimental drug injected into your arm.
The more general point is this: it is perfectly acceptable for a company to change its services in ways that might make people unhappy, or even in ways that is bound to make at least some of its users unhappy. And in fact Facebook would have never suffered criticism for doing so if it had simply never published the result. But the point here is not just that they could have got away with it if they had kept quiet. The point is that if they hadn’t published, there literally would have been no objection to make. Why, you ask?
If Facebook had simply manipulated users news feeds and kept the results to themselves, this process would likely have fallen under the heading of what is known, in research ethics circles, as “program evaluation.” Program evaluation is, roughly speaking, anything an organization does to gather data on its own activities, with an eye to understanding how well it is doing and how to improve its own workings. If, for example, a university professor like me alters some minor aspect of his course in order to determine whether it affected student happiness (perhaps as reflected in standard course evaluations), that would be just fine. It would be considered program evaluation and hence utterly exempt from the rules governing research ethics. But if that professor were to collect the data and analyze it for publication in a peer-reviewed journal, it would then be called “research” and hence subject to those stricter rules, including review by an independent ethics board. But that’s because publication is the coin of the realm in the publish-or-perish world of academia. In academia, the drive to publish is so strong that — so the worry goes, and it is not an unsubstantiated worry — professors will expose unwitting research subjects to unreasonable risks, in pursuit of the all-important publication. That’s why the standard is higher for academic work that counts as research.
None of this — the fact that Facebook isn’t an academic entity, and that it was arguably conducting something like program evaluation — none of this implies that ethical standards don’t apply. No company has the right to subject people to serious unanticipated risks. But Facebook wasn’t doing that. The risks were small, and well within the range of ‘risks’ (can you even call them that?) experienced by Facebook’s users on a regular basis. This example illustrates nicely why there is a field called “business ethics” (and “research ethics” and “medical ethics,” and so on). While ethics is essential to the conduct of business, there’s no particular reason to think that ethics in business must be exactly the same as ethics in other realms. And the behaviour of Facebook in this case was entirely consistent with the demands of business ethics.
A leader has to be able to do hard things, including, perhaps especially, leading his or her organization through difficult changes. Indeed, many leadership scholars regard that as the key difference between the science of managing and the art of leading. Lots of people may be able to manage an organization competently in pursuit of well-established goals. Fewer can lead an organization when hard changes need to be made. And in the case of Daniel Snyder, the owner of a certain football team whose home base is Washington, DC, one of those hard changes should be to get on with it and change his team’s name.
Snyder has faced a groundswell of criticism over his team’s continued use of the “R*dskins” moniker. There have been vows to boycott the team and its paraphernalia. A growing list of media outlets have even vowed no longer to use the team’s current name in their coverage of the team. There’s even a Wikipedia page detailing the ethical debate over what many take to be an offensive, even racist name.
And if Snyder is going to change the team’s name (something he’s given no indication he is inclined to do), it needn’t be just because he’s worried about offending people. Two professors from Emory University have argued that there’s a good business argument for changing the team’s name. In particular, their analysis suggests that the name is bad for brand equity. “Elementary principles of brand management,” they state, “suggest dropping the team name.”
The U.S. Patent and Trademark Office has even entered the fray by canceling the team’s trademark registration. The PTO has rules, it seems, against trademarking racial slurs. This doesn’t mean that the team has to change its name, but it surely helps to devalue the brand and promises to reduce income from merchandising.
The whole sorry mess has the feeling of inevitability about it. The name can’t stay forever. The tide of history—and sound ethical reasoning—is against Snyder on this one. Snyder is an employer, most of whose employees are members of a historically-disadvantaged group. It is unseemly at best to resist so adamantly the pleas of members of another historically-disadvantaged group that he stop making money from a brand that adds insult to injury.
It is time for Daniel Snyder to act like a leader, to do the hard thing—the honourable thing—and change that name.
Controversy has arisen recently regarding the installation of anti-homeless spikes on sidewalks. Spikes of various descriptions have reportedly been installed, for example, in the pavement outside an apartment building in London and a commercial building in Montreal. No doubt there are other examples of the use of such spikes. They are presumably intended to stop certain people — to wit, the homeless — from sitting, lounging, or sleeping in those locations. Outrage has naturally ensued. Advocates for the homeless criticized the spikes as a cynical, heartless approach to the problem of homelessness.
This example nicely illustrates the difference between having a right to do something, and it being right to do it. On one hand, property owners have the right to exclude anyone they want to exclude. In general, no one is obligated to share their property with random strangers.
So the owners of apartment buildings or commercial properties are within their rights (assuming they’ve installed these spikes on their own property, and not, say, on a public sidewalk). They are operating, in other words, within the limits of the set of conventions and legal protections that insist that we respect each other’s entitlement to control access to our stuff.
But being within their rights doesn’t imply that the owners are doing what’s right.
But as philosopher Jason Brennan points out, even libertarians — and libertarians are, shall we say, fond of property rights — do not regard property rights as absolute. Property rights are important, and our society is predicated on the basic assumption that each of us has the right to control the stuff we own, to do what we want with it and to invite onto our property those we want to invite and to exclude those we want to exclude. But — to borrow Brennan’s example — if I need to step onto your lawn to avoid being hit by an oncoming car, I am ethically justified in doing so, despite the fact that I am thereby invading your space, your property.
And even if property rights were absolute, it would still sometimes be the right thing to do, ethically, to allow other people access to your property. And one set of conditions under which allowing people access to your property would consist in situations in which the other person is in desperate need and lacks real alternatives, and in which allowing them access to your property doesn’t diminish your own enjoyment of your property in a meaningful way.
So even if property owners are within their rights to install anti-homeless spikes, they may be wrong to do so. But the fact that these property owners may not be doing right — the fact that they may, in other words, be acting immorally — doesn’t immediately license others to do anything about it. Such wrongdoing certainly doesn’t, for example, justify vigilante efforts on the part of private citizens to cover the spikes with fresh cement. If spikes are the “wrong solution” to homelessness, then vandalism is also the wrong solution to the spikes.
Nor does such wrongdoing warrant government action. The fact that you (or someone else, or all of us) find something morally abhorrent doesn’t automatically justify calling for government intervention. Consider, for example, the outrage over Canada’s new anti-prostitution law, which attempts to (re)criminalize behaviour more or less simply because some people think it morally reprehensible. Critics have rightly called the legislation wrong-headed. (A sane law would try to minimize dangers, but without criminalizing the behaviour of consenting adults.)
Taking ethics seriously isn’t simply about passionately insisting on ethical behaviour. It means a commitment to learning better and more subtle ways of thinking and talking about ethics. And that is especially important, perhaps, when the behaviour in question pushes our buttons emotionally.
Last week saw the sentencing of Nazir Karigar to 3 years in jail, under Canada’s Corruption of Foreign Public Officials Act. This week, the RCMP have charged two Americans and one British businessman, demonstrating the force’s willingness to extend its reach to non-Canadians in its efforts to combat corruption. The three, all working with one branch or another of a company called Cryptometrics, are accused of having joined with Karigar in a failed attempt to bribe officials at Air India in order to land a contract to provide security to the airline.
Two words ought to stand out from that last bit, for anyone contemplating engaging in bribery: “failed attempt.” Karigar and his accused co-conspirators are in hot water for an act of bribery that didn’t even work. They didn’t get the contract. That, of course, is one of the big problems with bribery as a business strategy. It doesn’t always work. You may drop an envelope full of cash on a foreign official’s desk, without knowing that someone else has already dropped off an even fatter envelope. And given that bribery is illegal everywhere — even in places where it is reputed to be common — it’s not like you can go complaining to the police that you’ve been cheated. It’s really an extreme case of buyer beware.
The other words that should be front and centre, of course, are “jail time.” Karizar got jail time, and it seems likely that if these latest charges stick, prosecutors will be seeking jail time again. There’s no slap on the wrist here. No mere financial penalty levied against the faceless corporation involved. People who do business overseas have got to get it into their heads that anti-corruption laws are serious.
But back to the question of failure. Every time I hear about a case of bribery, I can’t help but think of failure. More specifically, it always seems to me that if you’re resorting to bribery, you’re essentially admitting failure. You’re opting to cheat because you know you can’t compete fairly. Your product isn’t good enough. Your marketing isn’t sharp enough. You’re not smart enough.
Yes, I know that won’t always be the case. I’m sure there are places where bribery is common enough that you “have to” engage in bribery to compete, and where the fact that you can’t do business honestly really isn’t your fault. But I think our presumption should favour honest business. There’s a difference between saying you lose some business by avoiding bribery and saying that you simply can’t survive without it. There are lots of honest businesses out there, getting by without bribery even in fairly corrupt markets. So we should presume in favour of honesty. We should presume that bribery just implies that you’re not good enough to compete fairly, on the strength of the services you provide or the product you make. It’s the best presumption, ethically, and it’s very likely just plain true.
Canadian businessman Nazir Karigar is going to jail. This a small but important victory for citizens of developing nations across the globe.
Karigar’s been sentenced to do three years in prison for his role in a conspiracy (dating back to 2005) that tried — but failed — to land a $100-million contract to provide security for Air India.
This is an important case for Canada. For years Canadian officials have been criticized for their lax approach to overseas bribery, and to white-collar crime in general. As RCMP Assistant Commissioner Gilles Michaud put it, “It was felt that we weren’t doing enough.”
(I had the pleasure of meeting Michaud at an event I co-hosted with Canadian Business back in October. At that time, Michaud assured the crowd in no uncertain terms that the RCMP is now emphatically on the job.) The Karigar case is a small but significant move toward remedying Canada’s reputation for having a lax attitude toward enforcement, since it marks the first time an individual has been sentenced under Canada’s 1999 Corruption of Foreign Public Officials Act.
But it’s more than just an important case for Canada. It’s important for the developing world, where bribery and other forms of corruption are far more common than they are here.
Bribery is a scourge. It distorts markets, saps economies, and encourages decent people to violate their sworn duty. It’s a problem wherever it occurs, but it’s particularly corrosive in developing economies. Bribery is illegal everywhere, but sadly common in some places. And local efforts at changing that are not at all helped by businesspeople from affluent countries — with supposedly sophisticated markets and best-in-class business practices — show up with briefcases full of cash.
Chris MacDonald is director of the Jim Pattison Ethical Leadership Education & Research Program at the Ted Rogers School of Management.
Questions of human rights are almost continually in the news, whether reports of ongoing human-rights violations in South Sudan or North Korean accusations of human-rights violations in the U.S.
For many purposes, the language of human rights provides the lingua franca for discussing questions of ethics. Certainly debates over human rights have become prominent with reference to the world of business. The language of human rights come to mind pretty readily, for example, when we discuss dangerous working conditions, discrimination in employment, or environmental degradation. That’s why I recently co-hosted a day-long event called Where To From Here: A Canadian Strategy for the UN Principles on Business and Human Rights? The event was an attempt to begin the task of figuring out how to turn the United Nations Guiding Principles on Business and Human Rights into an actual agenda for concrete action for Canadian businesses, governments and NGOs. The discussion was fruitful, but I came away from the day with two lingering worries.
The first has to do with what is sometimes called the “business case” for human rights. During our day-long discussion, a lot of folks were concerned to make clear that respecting human rights is good for business. If we educate businesses on the business case, they suggested, then we can let executives’ built-in profit seeking impulse do the rest. And surely there is something positive to be said for the connection between respecting rights and doing well in business. Treating people well is conducive to productive long-term relationships, and productive long-term relationships are conducive to profits. But is respecting rights always conducive to maximizing profits? Clearly not. There will often be times when a business can increase profits by engaging in behaviours that put workers’ lives at risk or that stifle their right to free association or what have you.
But to look for a business case that establishes an iron-clad connection between human rights and profit is to ask for too much, and is perhaps not necessary in the first place. For practical purposes, you probably don’t need to prove (which you can’t anyway) that respecting rights always brings profits. It may be sufficient to establish that a) violating human rights brings substantial risks (risk of labour unrest, risk of litigation, risk of additional regulation), and that b) putting management systems in place to ensure that human rights are respected is not as expensive as you might have thought. In other words, the business case doesn’t have to be expressed in profits; it might be enough to express it in terms of avoiding losses.
The second point has to do with the notorious “hammer/nail” problem. When the only tool you have is a hammer, every problem looks like a nail. And when the only moral concept you have is “human rights,” then every wrong you see looks like human-rights violation. But of course, there are many ethical questions that have nothing to do with human rights, or that are at least not fruitfully expressed in such terms. Rights are important, but they aren’t all that matter. We also care about good consequences (for individuals and communities) and about character and about justice and so on. And sometimes it will simply make more sense to talk in terms of those concepts instead of in terms of human rights. An exclusive focus on human rights — and I’ve met people who literally could not express an ethical question without reference to the violation of some human right or another—brings two real risks. One has to do with what we might call “rights fatigue.” The language of human rights is incredibly potent, because human rights are ostensibly universal and because they are ostensibly inviolable. So such rights imply very strong obligations. If everything is about human rights, it tends to devalue the currency.
The second risk is that in some cases focusing on human rights may result in making it harder to reach agreement on ethical questions that really shouldn’t be that controversial. Is paying an employee very low wages to work 14-hour days a violation of a human right? Well, I don’t know. I mean, it’s probably a bad thing, and seems contrary to the spirit of various labour-related human rights, but is it an actual violation of one of those rights? What about hiring a 13-year-old girl with no better option to harvest cotton in Burkina Faso? It’s certainly a regrettable set of circumstances, one we should want to make better. But if making things better requires that we first agree on whether some right has been violated, we have a vary high moral hurdle to overcome first. It may be better to agree that the situation isn’t so good, and get on with trying to make it better.
I’ve been working recently with online learning company Emtrain on the development of their new corporate ethics training course on Codes of Conduct. It’s a customizable product available to corporate customers who want a slick, fun, and informative way to do online training. The course includes video scenarios, traditional instructional elements such as definitions and explanations, and self-test segments.
While the course is in principle about codes, a lot of the focus is actually on fostering an ethical business culture. As a “Contributing Editor” for the course, my goal has been to work with the Emtrain team to hone the technical details and to make sure that the course fosters the right kinds of critical thinking.
You can learn more about the course HERE, and you can see a free demo of part of the course by clicking below:
How much is a human life worth? Or, to put a finer point on it, how much is your life worth, to you? How much would you have to be paid in order to risk your life as part of your job?
It is sometimes said that you can’t put a price on a human life. This is of course nonsense — we do it all the time. When I buy life insurance, it means figuring out how much I am worth, financially, to my family: how much money would they have to receive to make up for the loss of my income? We also put a price on our own lives when we buy cars. Unless you’re driving the absolute safest car you could theoretically afford, you are implicitly putting a price on your life. To do the math, take the difference in price between your car and (let’s say) a high-end Volvo, compare that to the difference in the likelihood of death in the event of a crash, and there you go: you’ve put a price on your own life — and perhaps on your children’s lives, too.
But what about in an employment context? What about paying people to do the relatively dangerous work of soldiers, firefighters, miners, or fishers? Is it OK to put a “price” on people’s lives that way?
It is a fact of life that there are dangerous jobs out there, and it is also a fact of life that there’s a limit to how much safer we can do to make them safer. No job is totally safe, and some are liable to remain downright dangerous. So employers are unable to avoid the fact that they are sometimes going to be paying people to risk their lives.
How much should they pay? To begin, let’s ask how much they need to pay. Other things being equal, an employer is likely to have to pay someone more to get them to do a job that is dangerous, that involves working in an isolated place, that is tedious, or that involves shift work. Those are all factors that most people would like to avoid, and so getting people to submit to such conditions is going to require some form of inducement. But that is really just a practical necessity, rather than a matter of ethics. It doesn’t answer the harder question of how much an employer should pay workers to do a dangerous job.
The problem with trying to answer that question is that not everyone sees risk the same, or sees risky activities in the same light. They may even disagree over whether a given activity (bungee jumping, anyone?) is risky at all. One person’s insanity is another’s adrenaline rush. Members of some occupations (miners, for example) apparently don’t see their jobs as especially risky, even though the relevant statistics put it among the riskiest. And some firefighters think that the risks of rushing into burning buildings pale in comparison to the agonies of sitting behind a desk all day. Putting the point quite generally, people weigh various costs and benefits differently, both because of differences in individual psychology and because of differences in their personal circumstances. And when it comes to sorting people according to the risks they see as worth taking, and compensating them accordingly, the more-or-less free market system we currently use is probably the best (or least bad) system anyone has ever devised.
In the end, an employer’s primary focus really should be on safety — it is much better to eliminate or minimize a danger than to pay people extra to subject themselves to it. Part of the focus on safety should include a commitment to making sure employees and potential employees fully understand the risks that come with the job, something that can be no small achievement in a complex workplace. And once a workplace is as safe as practical, and once employees understand the residual risks, then from an ethical point of view offering and accepting danger pay becomes a matter of free and informed choice.
I discussed these issues on a recent episode of CBC Radio’s The Current. Thanks to the team there, including especially host Anna Maria Tremonti and producer Sujata Berry.
Chris MacDonald is director of the Jim Pattison Ethical Leadership Education & Research Program at the Ted Rogers School of Management.
As the teaching term draws to a close, an ethics professor’s mind inevitably turns to the significance of the grades that get assigned in an ethics course. Part of my job — part of every professor’s job — involves assigning grades. Grades are supposed to reflect achievement in the course. A student who performs inadequately gets an ‘F’. Most students (performing adequately-to-well) will get a ‘C’ or a ‘B’. Exceptional students get an ‘A’ or even the occasional ‘A+’. Those grades serve as a signal both to the student, and to anyone reading her transcript, just how well the student did in my course. In a History course or a Finance course, the meaning of grades is pretty obvious. You either learned the relevant history (and theories about history) or you didn’t. You either learned how to apply various financial models or you didn’t. But what does it mean when a student gets an ‘A’ in Ethics? Many people seem to find that question perplexing, because ethics is both a subject of study and a guide to behaviour. When a student gets an ‘A+’ in Ethics, does that mean they are excellently ethical?
As it happens, I recently had the opportunity to reflect on the question of high marks in ethics in a different context, namely the context of corporate ethics. I recently made an appearance on CBC Radio’s The Current, during a segment about the significance and challenges of corporate ethics rankings. Corporate ethics rankings are published by a range of think-tanks, magazines, and NGOs, and purport to hand out grades for ethics (or corporate social responsibility, sustainability, corporate citizenship, or what have you.). One of the issues we discussed on air was the fact that the results of ethics rankings are frequently counterintuitive, and sometimes downright shocking. There have been cases, for example, in which tobacco companies have topped corporate citizenship rankings, and others in which oil companies have done remarkably well on sustainability rankings. Some critics have been quick to point out the irony; others have taken those results as reason to dismiss a particular set of rankings altogether; still others have thought that such results cast doubt on the entire project of ranking companies in terms of ethical performance.
Again, what does a high grade in an ethics mean?
Now, when I hand out an ‘A’ in my Ethics class, I hope it is clear that that is in no way an endorsement of the student’s character, or of his or her capacity to make reliably excellent ethical judgments. Twelve weeks isn’t enough time for form much of an impression of each student’s character, and I don’t have an objective means by which to certify the quality of their real-life ethical decisions. So an ‘A’ in my class just implies that a student has gained a superior command of a certain body of knowledge — knowledge of the key concepts, and an ability to apply them to cases. It implies an appreciation of the key debates concerning corporate ethics (e.g., just how far down the supply chain do a retailer’s obligations extend? How should managers balance the duty they owe to shareholders against the duties they have to other stakeholders?) It means they have demonstrated an understanding of the key psychological and institutional barriers to good ethical decision-making in the world of commerce. But does it mean they are ethically ‘good’ people? Most emphatically not.
Now, my hope is that a richer, more sophisticated understanding of the relevant concepts and issues will lead to better decision-making in the long run. But proof of that causal link is hard to come by. So, as is generally the case with university courses, I settle for educating my students, rather than aiming at the less plausible target of transforming them. The grades I give only represent a measure of students’ level of accomplishment as compared to the set of criteria outlined in the course syllabus. And it is entirely possible to do well in my course while at the same time being an awful human being.
The same is true for corporate ethics rankings. A grading system for corporate ethics gives grades on the basis of some system of evaluation, some system of measurement. It generally won’t measure ethics directly, but settles for some set of proxies that, taken together, give us some hopefully-meaningful estimation of a company’s capacity for ethics. Of course, there are differences. Unlike a university ethics class, in many cases corporate ethics rankings do measure actual performance on some subset of ethical issues. Has the company in question been cited for regulatory violations? Has it reported numerous workplace injuries? Are women well represented on the Board? And so on. But such measures are inevitably rough, and inevitably leave important questions unasked. And sometimes, corporate ethics rankings look at more abstract markers. Has the company got a code of ethics? Does it have a robust compliance program? In other words, they ask whether the company has the capacity to deal appropriately with ethical issues, rather than looking at actual ethical performance. That’s not a criticism of those measures; it’s just an inevitable fact about systems of measurement.
So we shouldn’t automatically be alarmed, or even surprised, when companies that we think are ethically reprehensible do well on a corporate ethics ranking. We should simply remember that any grading system only grates performance against some set of measures. Those measures can of course be smart or dumb ones — dumb inputs mean dumb outputs. But the key, really, is to remember that a system of measurement only measures what it measures. And in some cases, an imperfect measure is better than no measure at all.
Last week, the US Supreme Court heard oral arguments in an important pair of cases, namely Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius. Hobby Lobby and Conestoga are companies that want to be allowed to opt out, on religious grounds, of the U.S. Affordable Care Act’s requirement that employer health plans pay for contraception. The First Amendment to the U.S. Constitution, after all, forbids the government from passing laws that restrict the free exercise of religion, and the practice of some religions includes refusal to engage in (or, apparently, to promote) the use of certain forms of birth control.
(Set aside for now the apparent hypocrisy implied by the fact that Hobby Lobby apparently invests some of its 401(k) employee retirement plan’s money in the pharmaceutical companies that produce the very contraceptives that Hobby Lobby is so hell-bent on avoiding paying for.)
The cases before the Court seem to hinge on the question of whether corporations can have religious beliefs. For some, the answer is obvious. The corporation, they say, is “merely an inanimate vessel,” and as such it cannot have beliefs or exercise a religion. But as Kiel Brennan-Marquez rightly points out, it is of course possible for corporations to be religious, because we have an entire category of religious corporations called churches, whose entire raison d’être is religious and who are given special treatment on that basis. The question, then, is really whether for-profit corporations like Hobby Lobby should enjoy the same protections that non-profit corporations like the Catholic Church enjoy. The key difference, for Brennan-Marquez, is that a church — as a non-profit — cannot be owned. Because a corporation can be owned, and because its assets are therefore transferrable, attributing a religion to a corporation would raise thorny questions in cases of corporate acquisitions, mergers, and so on.
More to the point, perhaps, is the question of instrumentality. As I argue in a forthcoming paper in the Georgetown Law Journal, there are cases in which we should think not in terms of the rights the corporation should enjoy, but in terms of the appropriate limits to be placed on the corporation, understood as a tool for achieving human objectives.
Now, there are cases in which it may be genuinely useful to think in terms of the corporation itself as having rights. The interests of corporations are not always directly reducible to the sum of the interests of its various stakeholders. But in other cases, it is more illuminating to think of which legal protections are necessary to protect the rights of persons who make use of the corporation as a way to carry out their own objectives. In such cases, the legal protections that the corporation should have are just those necessary to protect the human beings involved.
So, consider the difference here between a church and a for-profit corporation. A church just is an instrument for engaging in the exercise of religion. People form churches in order to express their religious beliefs and carry out their religious commitments; failure to allow religious freedom to a church is a failure to allow religious freedom to the people who make it up. A corporation, on the other hand, is many things to many people &mash; an investment, an employer, a supplier, and so on. And it will only be in rare cases that the exercise of a single religion is a fundamental goal of a sufficiently broad range stakeholders to justify attributing freedom of religion to the corporation as a whole.
Thinking of the question this way lets us avoid thorny metaphysical questions about what sorts of things can “have” religion. If we think of the corporation (for-profit or otherwise) as an instrument or technology by means of which people seek to achieve their goals, then it becomes clear that the rights (or “rights”) of different kinds of corporate persons depend not on what kind of entity they are, but on the the demonstrable goals of the human beings involved.