View on A. J. Greimas’s Essay “The Semiotic Analysis of a Legal Discourse: Commercial Laws That Govern Companies and Groups of Companies”

If legal practice is thus a production of law, of new legal rules and significations, as well as a recurring procedure of verification of the validity of the instituted legal language, and if that production requires naming “things” and inscribing predictable “events” into the modal grid of command, incentives, interdictions, requirements, assessments, etc.—then its schematization into nicely autonomous but interconnected oppositions, contradictions and complementarities, provides the pathways within which the actions of the objects of law can be tested against law’s grammar and semantics. This connection, one that drove Greimas initially to a consideration of the business of corporations in an effort to discover their legal essence, is very much in evidence in the efforts undertaken in the United States during the years 2013–14, to induce the state to recognize the legal authority of corporations to embrace a religion, and then to impose that religion on its employees, customers and others (under the protective cover of state power). That ensoulment has as its objectives to convert the juridical person incarnated in corporate form to the religion of its principal shareholders, so that they might form a more perfect community of like-minded religious souls for the conduct of economic affairs and the enhancement of the spiritual well being of their stakeholders. Economic activity, then, is transformed into an expression of the practice of religion, and the normative animus of the enterprise a reflection of that of its “owners.” Yet to do so requires both an act of ensoulment of the corporation and acquiescence by the state that its law no longer applies to the professing corporation. It is in the efforts by economic enterprises to not merely find their religion, or project that of their owners, but to compel the state to recognize that religion, and by doing so cede a substantial regulatory authority over these abstractions, that the multiple vectors and dynamism of law comes is more fully exposed.

The courts serve as the arena in which these networks are invoked. These serve as the site within which corporations seek to assert their usurpation of power by reframing that usurpation as a right granted by the legislature through a statute the purpose of which never contemplated the action at issue. And in an effort to constrain the state, and to impose personal will on others through the exercise of personal (though institutionalized) systems of “law” that by their character as generated through “religion” fall outside of “law” produced by the state, that then affect both the person, institution and thing that seeks to assert “law” by constraining the protections of other “law” meant for the objects of this assertion. The word law, then, becomes lost in polycentric layers of systems that each claim the status of law, the interactions among which remains regulated by one set of law givers (the state) though in ways that make the simultaneous application of law networks likely in ways that institutionalize contradiction, complementarity and reversals.

Over the course of nearly a generation, and in contexts far from the realms of corporate law, U.S. elites have been battling, through the courts, to develop a new settlement for the coordination of two legal systems, sometimes incompatible with each other. One is the “secular” law of the political state—the United States of America, a federal union, and its subordinate governmental organs. The other is the law and governance system of advanced institutionalized religions with large numbers of members who also hold political citizenship in the United States and its relevant sub units. After a period of judicial decisions that appeared to favor a larger “legal” space within which individuals could choose religious over political governance systems with respect to specific action where the two systems diverged, the courts appeared to shrink that gateway in Employment Div. v. Smith (494 U.S. 872 (1990)), which changed the rules for choosing to opt out of the framework of state law by holding that while states have the power to accommodate otherwise illegal acts done in compliance with religious law, they are not required to do so—effectively reducing religious opt out to a matter of political power. And that is precisely what happened. In response to Smith, the federal government enacted the Religious Freedom Restoration Act of 1993 (42 U.S.C.§ 2000bb (RFRA)). RFRA provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results form a rule of general applicability (42 U.S.C. §2000bb-1(a))”. That individual power to choose the application of religious over political obligation trumps all non-religious laws of general applicability unless the state can show that the legal obligation at issue is the least restrictive means of furthering a compelling governmental interest (ibid., 2000bb-1b). All of these terms have meanings that are specific to the law and the legal framework within which RFRA was expected to be applied. RFRA had originally served as a legislative response to a judicial construction of state power exercised against the choices of natural persons to practice their religions accordance with the dictates of the law of that faith.

This framework, this lexicon of inter-systemic relations between state-law and religion-law systems, has application to corporations, at least potentially, by the possibilities offered in the signaling language of Citizens United v. Federal Election Commission (558 U.S.-(2010)), in which the U.S. Supreme Court might have been thought to vest corporations with personal autonomy, and at least some of the political rights that follow from that.²

These implications are tested directly when a corporation, whose board of directors was determined to have the corporation adopt and practice its religious faith, the practice of which, in the opinion of its board of directors, prohibited it from providing certain medical benefits to its employees as otherwise mandated by the law of the United States.³ Evangelical Christians, among others, have begun to assert a much broader area of activity in which the law of their religious faith must take ‘precedence over any countervailing imposition enacted by the state’.⁴

In Sibelius v. Hobby Lobby, Inc. (723 F.3d 1114 (10th Cir. 2013) cert granted 134 S.Ct. 678 (2013)) the applicability of RFRA was tested in two respects. The first touched on the extent to which religious law could be used to evade an interpretation of general applicability related to the Patient Protection and Affordable Care Act of 2010 (124 Stat. 119 (ACA)). The second touched on whether juridical or legal persons might also assert rights to exercise religion, and in that exercise, avoid any obligation to comply with the law of the state. Specifically, ACA requires companies employing more than 50 employees to provide these employees with health insurance including preventive care and screenings for women (ACA 124 Stat. at 131). An administrative agency charged with the interpretation of this mandate determined thereafter that such care included “contraceptive methods” and “sterilization procedures.” “Hobby Lobby” is a closely held corporation, whose shareholders are committed to “Honoring the Lord in all we do by operating the company in a manner consistent with biblical principles … serving our employees and their families by establishing a work environment and company policies that build character, strengthen individuals and nurture families.” (See the “Hobby Lobby” Website: “Our Company”, May 2014, available at http://​www.​hobbylobby.​com/​our_​company/​). Thus, while the shareholders of Hobby Lobby were content to submit themselves to the law of the states of their citizenship and acquire the benefits thereof (the privilege of creating an autonomous juridical person through which to engage in economic activity), they “believe that it is by God’s grace and provision that “Hobby Lobby” has endured.” (Ibid). They sought to opt out of the network of state regulation with respect to those aspects of their organization and interactions with their employees that they determined were inconsistent with religious law, which they sought to apply to themselves, and through the company, to their employees. Among those state regulations abhorrent to the shareholders of “Hobby Lobby” was ACA’s requirement that insurance provided for employees include preventive care and screening requirements for women because this required them to provide their employees with services that might include contraception and abortion services which, they believed, their God found unacceptable for the community of the faithful to which they belonged.