Our Fractured Attitude Towards Corporate Conscience

36 Pages Posted: 5 Jun 2014

See all articles by Brett G. Scharffs

Brett G. Scharffs

Brigham Young University - J. Reuben Clark Law School

Date Written: March 12, 2014


This paper surveys our political and legal system’s inconsistent attitudes towards corporate conscience by comparing CVS Caremark and Hobby Lobby. As announced in early 2014, CVS, the nation’s largest pharmacy, will stop selling cigarettes during 2014, a corporate action met with almost universal praise from the highest levels of the U.S. government, including HHS Secretary Kathleen Sebelius. In contrast, Hobby Lobby, a privately held chain of arts and crafts stores, currently finds itself before the U.S. Supreme Court trying to defend its rights of conscience, with the self-same Secretary Sebelius arguing that corporations have no Free Exercise rights or even Free Exercise interests (rights and interests that are of a paradigmatic conscientious character).

This seems rather odd – 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. What explains this difference?

The government’s position in the Hobby Lobby case is sweeping – it is that a corporation is not a person with conscientious interests; that it should be concerned with making money rather than matters of conscience; and that the interests of owners are divorced from those of the corporation because of the separate legal status of the corporation. But if this is true, then it should be no less true for other companies – like CVS or Apple (and its “green energy initiatives”) – that pursue other conscience-based policies.

The reason the government takes such an absolute stand against the idea that Hobby Lobby has any free exercise interests, I argue, is because the arguments that there is a compelling state interest behind imposing the contraceptive mandate on companies like Hobby Lobby, and that the mandate represents the least restrictive means of accomplishing that state interest, are exceptionally weak. The government’s best option is to try to head the religious freedom claim off at the pass, denying that corporations have any rights or interests relating to religion at all. The problem is this is directly contradicted by the government’s own behavior, encouraging companies to act conscientiously and praising them for doing so when the values reflect the government’s own priorities.

After analyzing such inconsistent attitudes toward corporate conscience, I survey four underlying causes, as well as make three modest suggestions of how to correct or bring greater balance to our thinking about corporate conscience.

Keywords: Corporate conscience, Free Exercise, CVS Caremark, Hobby Lobby, religious freedom

Suggested Citation

Scharffs, Brett G., Our Fractured Attitude Towards Corporate Conscience (March 12, 2014). Available at SSRN: https://ssrn.com/abstract=2445680 or http://dx.doi.org/10.2139/ssrn.2445680

Brett G. Scharffs (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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