Corporations with Minds of Their Own: Social Epistemology and the Contraceptive Mandate



Corporations with minds of their own

Corporations with minds of their own

This post attempts to explore the implications of Philip Petitt’s article entitled “Groups with Minds of Their Own,” in light of the current controversy concerning the Affordable Health Care Act’s (“ACA”) mandate that requires employers with 50 or more employee’s to provide contraceptive coverage as a part of the employer’s group health care plan (“the mandate”). The central issue, which has been determinative in the circuit courts, is whether secular, for-profit corporations have the capacity to assert claims under the Free Exercise Clause of the First Amendment or under the Religious Freedom Restoration Act.

Proponents of the mandate invariably argue that Free Exercise rights are “purely personal” and cannot be extended to corporations because: (1) as a matter of precedent, the language used by the Supreme Court and other various authoritative sources have explained the purpose of the Free Exercise Clause as securing “religious liberty in the individual;” and (2) as a matter of abstract reasoning, Free Exercise rights may only extend to individuals because “religious beliefs [can only]take shape within the minds and hearts of individuals,” as corporations are “artificial being[s], invisible, intangible, and existing only in contemplation of law.” Thus, this second line of argument goes, corporations cannot,  “separate and apart from the actions or belief systems of their individual owners[,] . . . exercise religion.” Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs., 724 F.3d 377, 385 (3d Cir. 2013). This article says nothing as to (1), but provides serious doubt behind the assumptions concerning (2).

In his paper Groups with Minds of Their Own, philosopher Philip Pettit argues that certain purposive groups – which he terms social integrates – are organized in a manner such that they are capable of holding views or opinions in a way discontinuous from the mentality of the institution’s members. Such institutions, Pettit argues, are psychologically autonomous and should therefore be treated as institutional persons. Pettit contends, based on certain implications arising out of the discursive dilemma, that social integrates must contain two characteristics: they must (1) display rational unity at the collective level; and (2) be held accountable for failure to maintain rational unity.  Finally, in Pettit’s view, institutions that have the above traits ought to be treated as individuals on par with their constituent members.

The discursive dilemma can potentially arise whenever a group sets out to make a decision, where the group has at least three decision makers, and the group’s decision turns on two or more premises.  As will be shown below, one consequence of the dilemma is that the group will be forced to choose between two different procedures for aggregating the positions of each member: a conclusion-centered approach or a premise-centered approach.  An easy way to appreciate the discursive dilemma is through a particular legal example of it, known as the doctrinal paradox.

The doctrinal paradox arises whenever a multi–member court must decide a case based on a finding that at least two conditions have been satisfied. For example, suppose that a three-judge court composed of A, B and C must decide a negligence suit. Further suppose that for the court to find the defendant liable, it must only find that (1) the defendant had a duty of care to the plaintiff; and (2) the defendant was the proximate cause of the defendant’s injury. The doctrinal paradox would materialize in this instance if two of the judges find different conditions unsatisfied while the third judge finds both conditions satisfied. The decision could look as follows:

Duty Cause Liable
A Yes No No
B No Yes No
C Yes Yes Yes


The court must now choose between two aggregation procedures to decide the case. The court can use either a conclusion-centered procedure or a premise-centered procedure. Under a conclusion-centered procedure, the court looks only to the final column of the above table, taking into account only the individual conclusions of each judge, and would therefore hold the defendant not liable. Under a premise-centered procedure, the court would aggregate the judge’s findings for each premise, and would therefore hold the defendant liable, as a majority of the judges found both conditions satisfied. The discursive dilemma is not confined to the legal arena alone.

According to Pettit, the discursive dilemma can be found whenever  “a group of people discourse[s]together with a view to forming an opinion on a certain matter that rationally connects, by the lights of all concerned, with other issues.” To illustrate this point, imagine an employee-owned company, wherein three employees are tasked with determining whether the company should either grant a pay-raise or use the money to implement a set of workplace safety measures.  Further imagine that the employees, based on prior resolutions, must, and may only conclude to forgo the pay-raise if they find the following three conditions satisfied: (1) there is serious danger in the workplace; (2) the safety measures the company could afford by forgoing the pay raise would be effective; and (3) the pay sacrifice would be bearable for the employees. Suppose three workers A, B and C voted in the following manner:

Serious danger Effective safety measures  Pay sacrifice is bearable Sacrifice pay
A Yes No Yes No
B No Yes Yes No
C Yes Yes No No


Here too, the aggregation procedure chosen will be determinative. If the group chooses a premise-centered approach, perhaps by taking a vote on each condition, then, as each condition has a majority supporting it, the group will conclude to forgo the pay-raise, even though each group member would individually conclude to take the pay-raise. Alternatively, if the group chose a conclusion-centered approach, then the group would decide to take the pay-raise, as each member concluded that at least one condition had not been satisfied.

The discursive dilemma is further complicated when members of a group come to a conclusion on a particular issue without agreeing on the supporting reasoning. The complication occurs when a new issue to be decided by the group touches upon the first issue, such that deciding this new issue one way or another would be logically inconsistent with either the past conclusions of the group, or with the reasoning used by different members to support the prior conclusions. In this scenario, such a group will have to choose between letting its view on any issue be fully responsive to those of its constituents, thereby running the risk of making a decision inconsistent with the group’s prior judgments, or whether to ensure that the group remains collectively rational, even if at the expense of the constituent members’ beliefs about a given issue. This interesting complication of the discursive dilemma shows that, in some cases, an organization cannot guarantee its own rationality without sacrificing individual responsiveness to its own constituents.

Pettit argues that purposive groups, such as political parties, trade unions or business corporations will all inevitably face the discursive dilemma. This is because any group that coordinates its decisions based on a common goal will have to make determinations on the best means for furthering its goals. Thus over time the group will have generated a history of judgments. In order to remain collectively consistent when making a new decision, these past judgments will inevitably restrain the influence of  the positions of the group’s individual members in future discussions. Thus purposive groups will inevitably face the discursive dilemma.

Accordingly, Pettit argues that if a purposive group intends on being an effective promoter of its goal, it must display what he calls rational unity, and that such rational unity must be maintained at the collective level by emphasizing collective conclusions over individual member judgments. In order for an organization or system to have rational unity it must be capable of preserving “intentional attitudes over time and forms and act on those attitudes- at least within intuitively feasible limits and under intuitively favorable conditions- in a rationally permissible manner.” For example, rational unity requires that if a system believes that P and discovers not-P, it must conform to not-P. If a system believes that P and discovers if P then Q, it must either believe Q or stop believing in P.

Raise taxes Increase defense spending Support additional spending
A No Yes No
B No No Yes
C Yes Yes Yes





To demonstrate why purposive groups that do not display rational unity at the collective level would be ineffective promoters of their agendas, we will again use an example. Imagine a political party, which on the basis of a majority vote amongst its members first announces that, if elected, it would not raise taxes, then at a later date announces it would increase defense spending, and again at a later date faces the issue of whether the party will support additional spending in other policy areas. Because individual party members may have voted on the previous issues for different reasons, the party runs the risk of collective inconsistency if it allows itself to be fully responsive to its members on the third issue. The risk is that the individuals will vote as follows:

Evidently, should the political party choose to be tied to the individual members’ preferences, it runs the risk of being viewed as acting in an inconsistent or irrational manner. The party would likely be accused of not being seriously committed to its purpose. Thus, the party must base future determinations on its past decisions as a group, using collective reasoning.[1]

Although Pettit’s argument delves deeper into the similarities between the purposive groups discussed above and individuals, for our purposes, the above argument sufficiently presents the problem for proponents of the contraceptive mandate. The implications of the discursive dilemma above show that if purposive groups are to operate effectively, they must often act just as individual rational agents do. That is, we can expect these groups to form rational beliefs, opinions and intentions, and to make decisions in accordance with these beliefs. Moreover, just like individuals, purposive groups don’t just posses beliefs that are distinct from their members, they also “avow those states, acknowledging them as their own.” Having avowed its beliefs, the group opens itself up to criticism when it fails to display rational unity with respect to its beliefs and actions, and it is therefore forced to correct itself, just as an individual subject would. Thus, the failure to treat purposive groups such as corporations as individual intentional subjects clearly inhibits these groups from functioning effectively, by prohibiting them from displaying rational unity at the collective level.

If Pettit’s argument is valid, then one of the fundamental arguments made by proponents of the contraceptive mandate—that corporations should not possess Free Exercise rights because they cannot form independent opinions and beliefs—is undermined. Corporations can indeed, and often must, hold beliefs and take actions separate and apart—sometimes even in direct contradiction with—the beliefs and actions of their corporate directors and shareholders. Again, by way of example we can see how this is so. Suppose Corporation X has a charter and mission statement that asserts that Corporation X is a Catholic institution. You might imagine that Corporation X has spent time promoting itself as a Catholic institution and that its shareholders and customers expect that the corporation will act in accordance with and make policy decisions in light of Catholic precepts—one of which, the corporation concludes, is a prohibition on providing contraceptives. As we have shown, should Corporation X fail to restrict its future judgments on past conclusions of Corporation X it will likely suffer from the adverse consequences and loss of credibility that results from a failure to display rational unity. Even if a majority of Corporation X shareholders would now be willing to accept providing contraceptive coverage, Corporation X would itself feel pressured to stay consistent concerning its past determinations that Corporation X is a Catholic corporation, and that Catholic corporations are prohibited from providing contraceptive coverage.

The arguments we have seen above provide a policy-based rationale for extending the rights of individuals to corporate persons as well. While the Supreme Court has already determined that corporations are not entitled to all the rights granted to individuals, such as the 5th Amendment right to self incrimination, the Court would do well to consider how the functionality of corporations can be compromised by denying them individual rights.  At the very least, the implications of the discursive dilemma should make the Court reexamine the assertion made by proponents of the mandate that corporations lack a separate set of beliefs and intentions apart from their individual members. Evidently, arguments can be made to the contrary.

Jordan Lieber

[1] Of course, purposive groups must be allowed to periodically revoke their past judgments. Accordingly, Pettit argues that most purposive groups will follow a modus ponens procedure. However, it is clear that groups that consistently revoke past judgments will be seen as inconsistent and ineffective promoters of the group’s assumed purpose.


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Fordham Journal of Corporate & Financial Law