Rep. Day: Discrimination Has No Place In Massachusetts Commerce

From the automobile to the light bulb to life-saving medical advancements, our country’s private sector drives innovations that have revolutionized our way of life. The United States has achieved prosperity and economic strength that is unparalleled in history in large part because we provide certain protections and specific rights to private businesses.

The very first section of the United States Code reads: “In determining the meaning of any Act of Congress … the words ‘person’ and ‘whoever’ include corporations, companies … as well as individuals…”

This clause provides essential protections to a corporation that would otherwise have a difficult time doing things like enforcing terms of contracts with individuals or defending itself against lawsuits. We provide limited liability protections to directors of corporations and tax advantages to investors that encourage private industry. This choice has proven to be – for the most part – a very profitable and sound decision.

In recent years, though, our courts have taken the principle of affording certain rights and protections to corporations and extended that to what many believe are an absurd end by affording to corporations rights guaranteed to individuals under the United States Constitution. In 2010, the Supreme Court ruled that an advocacy group called Citizens United had a constitutional right to spend money on political advertising based on the First Amendment. In 2014, the Supreme Court extended this doctrine to encompass the freedom of religion when it held in the Hobby Lobby case that corporations with religious owners could not be required to pay for insurance coverage of contraception for their employees.

Supreme Court rulings are more often than not used as a foot in the door to further expansions of the root holdings in the cases. A leaked draft Executive Order from the current Administration that would allow a corporation to refuse to provide services to certain individuals or groups based on the corporation’s “moral objections” shows that these concerns are justified.

It is this fear, that a corporation might attempt to claim a moral objection to refuse service to someone who lives differently or follows a different faith (or no faith at all) that led me to file House Bill Number 767, An Act to Strengthen Civil Rights.

Our government grants corporations their rights. Our government, therefore, can also restrict or suspend those rights. In a 2001 case known as Cedric Kushner Promotions, Ltd. v. King, a unanimous Supreme Court held that “incorporation's basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.”

An Act to Strengthen Civil Rights states that the powers granted to a corporation by the state do not include a right to claim a moral or religious exemption from adhering to federal or state laws prohibiting discrimination and that, if it does claim such an exemption, its officers and directors will face personal liability for the discriminatory acts.

Discrimination has no place in our commerce, and a corporation cannot have a moral objection to anything. We are a stronger country because we are a more diverse country, and if we have any doubts about that, we should look to the words of former United States Chief Justice Charles Evans Hughes. Justice Hughes, who is regularly hailed as one of the leaders of American conservative political thought, had only narrowly lost the Republican nomination for President to Woodrow Wilson in 1916. Delivering remarks on the 150th Anniversary of the Battle of Bunker Hill at Faneuil Hall in 1925, Mr. Hughes proclaimed: “When we lose the right to be different, we lose the privilege to be free.”

I will continue to promote private industry and innovation, but I will not stand by and watch individuals attempt to hide behind the corporate shield to perpetuate discrimination in our society.