Scharffs' "Our Fractured Attitude Towards Corporate Conscience" #1 on SSRN
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Note 25 June 2014: Dean Brett Scharffs' paper Our Fractured Attitude Towards Corporate Conscience, is #1 on the download list of the Social Science Research Network (SSRN) Human Rights & the Corporation eJournal for the period 26 April 2014 to 13 August 2014. Click here to view the list.  Click here to download this important and timely paper. 

Brett G. Scharffs, Associate Director of the International Center for Law and Religion Studies, Francis R. Kirkham Professor of Law, and Associate Dean for Faculty and Curriculum at the J. Reuben Clark Law School, presented the paper "Our Fractured Attitude Towards Corporate Conscience" at the Wheatley Institution's Religious Liberty Lecture Series on March 12, 2014 at Brigham Young University. 

The focus of Dean Scharffs' remarks was the challenge to accommodation of religious conscience in an increasingly secular society, specifically as represented by provisions of the "Obamacare contraception mandate" challenged in US courts by nearly 100 lawsuits, brought by both non-profit and for-profit entities.

Among these challenges was one by Hobby Lobby, a company with a strong Christian identity in its ownership and self-understanding. Hobby Lobby's owners, the Greens, asserted that meeting the Obamacare requirement to provide to their employees contraceptives which the Greens consider to be abortifaceants would violate the principles upon which the company operates, a violation of the free exercise of religion. This challenge, Sebelius v. Hobby Lobby Stores, was heard by the US Supreme Court in March 2014, with a decision expected this summer. 

The government argued that as a for-profit company Hobby Lobby has no free exercise rights or interests. Recognizing such rights and interests would violate the basic principle that corporations have an identity separate from their owners. The Greens' free exercise interests are not implicated, because the mandate applies not to them personally, but only to their company. What is remarkable, said Scharffs, is that the government takes the position that Hobby Lobby should not pursue a "values-based mission," and, because it should be focused on making a profit, it does not have free exercise interests. An argument with a sort of "heads we win, tails you lose" quality.

In contrast, noted Scharffs, was the government's attitude towards a recent action by the nation’s largest pharmacy, CVS Caremark, which announced in February 2014 that, consistent with "its purpose – helping people on their path to better health," and "for the good of [its] customers and its company," it would cease selling tobacco products in its stores. The projected loss in annual revenue is $2 billion. Core values, principles, trump profits.  And at least the good of those persons in the company who might therefore lose their jobs. President Obama praised CVS for "setting a powerful example," and Secretary Sebelius called "on all sectors of the United States – from businesses to local and state governments to the faith community" to follow suit.

This seems rather bizarre – one company is praised for acting in accord with its conscience, and the other is criticized for having the temerity to claim that it has a conscience. Is a corporation the sort of thing about which we can meaningfully speak of its having a conscience? Is there such a thing as "corporate social responsibility"? Do we want corporations to act conscientiously, or do we want to refrain from "imputing" moral values of owners and managers to corporations, treating them simply as market vehicles that should concern themselves only with pursuing profits (as Secretary Sebelius says Hobby Lobby should do)?

Professor Scharffs cited a number of prominent examples of companies praised for putting conscience before profitability: Apple and Virgin (green energy), Coca Cola (polar bears), Patagonia (environment and animal welfare), Body Shop (animal life), Ben & Jerry's (fair trade and many other causes going "to the heart of [their] values and the sense of right and wrong.")  It is only religious values, religious conscience, that seems to be the problem, that people and government seem ever more reluctant to accommodate?

Scharffs notes four causes of our inconsistent attitudes towards corporate conscience:

1. The concept of public reason, which has come to dominate our thinking about public discourse.

2. The conceit of general and neutral laws and the idea that such provisions are sufficient to protect religious freedom.

3. Changing social views about religion as a social institution.

4. Our habit of thinking of accommodating religious exercise as a matter of granting an exemption rather vindicating a freedom.

He proposes three ways to correct or bring greater balance to our thinking about corporate conscience:

Pluralism.  We should celebrate CVS and Coca Cola and Patagonia and The Body Shop and Ben and Jerry’s for their commitment to conscience and to thinking beyond the bottom line. It is not important that we agree that all of the causes pursued by these companies, or that their causes are equally valuable in our eyes. But we should celebrate, not condemn, Hobby Lobby as well. Their rights of conscience are burdened when they are subject to the powerful state that seeks to compel them to act in ways that violate their deeply held religious beliefs. The correct question is whether (1) the government has a compelling state interest in coercing Hobby Lobby and the Greens to obey the law in spite of their religious objections, and (2) whether there is a less restrictive means of accomplishing that end

The modest neutrality of secularity rather than a 'monolithic secularism'.

A more useful notion of religious accommodation. When we think about religious accommodations as exemptions to general and neutral rules, we are reluctant to give such exemptions, because we want everyone to be treated equally. But there is another, much more appealing, way of thinking about accommodation, one suggested by George Washington. Washington maintained that the "conscientious scruples of all men should be treated with great delicacy and tenderness." He lived by the maxim, "Labour to keep alive in your Breast that Little Spark of Celestial fire Called Conscience." He cautioned his soldiers, "While we are contending for our own Liberty, we should be very cautious of violating the Rights of Conscience in others, even considering that God alone is the Judge of the Hearts of Men, and to him only in this Case, they are answerable."