owners vs workers and consumers

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Boston Review's injunction "don't let them eat cake" by Lawrence Glickman calls the SCOTUS Masterpiece Cakeshop decision "a terrible trend of valuing businesses more than employees and customers:"

The New York Times called the decision--which favored Phillips's right to refuse service for religious reasons--"narrow" because it did not rule on the broader issue of discrimination against gay men and lesbians based on rights protected by the First Amendment. However, in terms of the relationship between capital and labor, the decision was anything but narrow. The Court's majority opinion, written by Kennedy, is remarkable for its uncanny and unproblematic conflation of Phillips, the baker, and his business, the bakery. By insisting that the key issues in the case are Phillips's artistic expression and his religious liberty, the Court was silent on the question of how a company can possess these rights. It did so by assuming not only that corporations are people, but that the cakes made by Masterpiece Cakeshop are produced by Phillips alone, when in fact we know that the bakery has other workers.

Pay attention to the pronouns in Clarence Thomas' statement that "He is not open on Sunday, he pays his employees a higher-than-average wage, and he loans them money in times of need."

Presumably, Thomas meant to suggest that Phillips did not open his business on Sunday. But Thomas literally wrote instead that Phillips himself "is not open on Sunday." Since it is impossible for a person to close or be open on Sunday or any other day of the week, Thomas here marked the extent to which the Court identified Phillips with the bakery.

Glickman notes that "the language of Phillips himself, who in a 2014 video for the New York Times alternated between using 'we' and 'I' to describe the work of the bakery.) By extension, this means that the religious views and artistic contribution of the company's workers are irrelevant:"

Phillips's employees are merely props in Thomas's morality tale--figures who receive the boss's Christian charity but are otherwise unmentioned and invisible. The decision renders their status as workers for Phillips's limited-liability company morally and legally immaterial. [...]

In the same stroke that the Court effaced Phillips's workers, it also stinted consumers. Writing for the Court, Kennedy viewed "the customer's right to goods and services," not as the essence of U.S. free enterprise, but as a potential threat to Phillip's right to "personal expression." From the perspective of the Court, the rights of producers not only trump those of consumers, but should be understood, not as corporate prerogatives, but as reflections of the artistic and religious temperament of one person--what the Court called "the deeply held beliefs" of the business owner. Of course, this is not new to the Roberts court: this way of treating businesses as though they were individuals capable of possessing deeply-held beliefs has already been enshrined by previous Court rulings, notably 2014's Burwell v. Hobby Lobby Stores and, after a different fashion, 2010's Citizens United v. Federal Election Commission.

"The Masterpiece Bakeshop is a small business," Glickman points out, "but it is also a limited-liability company, a distinct entity, legally separate from its owners:"

Yet the Court's decision, with its focus on Phillips, treats the cakes made by the bakery as though each one personifies Phillips's Christian values. Leaving aside fundamental issues of gay rights and freedom of expression in order to build a strong majority, the justices collaterally ratified a radical view of corporate personhood. They did so by leaning on language consistent with the broader conservative view of the business firm, small or large, as a victimized person, deserving of individual rights and protections that no longer are granted to actual workers. Viewing the desires of consumers not as the engine of the economy, but as a potential constraint upon the autonomy and selfhood of the business owner, the Court drew upon a conservative history of defining free enterprise as freedom for sellers and manufacturers rather than liberty for customers.

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This page contains a single entry by cognitivedissident published on June 7, 2018 11:22 AM.

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