Given the spectacles of corporate misbehavior in recent years, and the ensuing chorus of calls for corporate social responsibility, the question of whether business should have a conscience should be a no-brainer. Most people take for granted that newspapers, for example, regularly take stands on moral issues and applaud when corporations put “people before profits.” But whether a for-profit business should have legal protection for its freedom of conscience is a hotly disputed issue currently before the Supreme Court.
The court has announced that it will grapple with this question in the new year when it hears a case concerning the objections of the Green family, who own the Hobby Lobby and Mardel Christian bookstore businesses, to the Affordable Care Act’s command that they include the so-called “morning-after pill” in their employee health benefit plans. The Greens, who are represented by the Becket Fund for Religious Liberty (where I serve on the board of directors), have no conscientious objection to paying for most forms of contraceptives, but they do object on religious grounds to paying for drugs and devices that the government says may prevent implantation of a fertilized human egg. In the Greens’ view, this is an abortion, and it would be wrong for them to help it happen.
The question before the Supreme Court is whether the Greens and their businesses can even raise a religious moral objection to paying for these drugs and devices. The federal government says no: In its view, for-profit businesses do not have consciences and thus cannot engage in the religious exercise of making a conscientious objection. At the core of the Hobby Lobby case is the idea that the Greens should be able to operate their own private family business according to their own deeply held convictions. At the core of the government’s case is the idea that the government itself is the only arbiter of conscience rights.
One need look only as far as the proliferation of “corporate responsibility” campaigns to see that most Americans believe in corporate conscience. Nobody wants businesses to use the sometimes massive power they wield within our society for evil purposes. Few would deny that it is a good thing if businesses attend not only to the bottom line, but also to how their actions affect others. By the same token, most people are outraged when businesses seem to be acting amorally. We don’t think Nike should profit from paying slave wages to factory workers in Asia. BP should have to clean up the Gulf of Mexico after despoiling it. And during the time of apartheid, businesses were punished for investing in South Africa. All these are examples of the duties we think businesses have other than just profit-maximization.
Day in and day out in the United States, countless businesses support local charitable efforts and attempt to be “good corporate citizens.” Starbucks uses only fair-trade coffee. De Beers says it won’t sell blood diamonds. FedEx uses hybrid delivery vehicles. Presumably they deem this to be good business as well as good practice. Far from presuming that businesses are inherently amoral, the law also reflects our society’s concern that businesses use their consciences. We convict corporations of frauds and other crimes. We regulate with whom they can do business. And we strictly regulate how they can treat their workers, shareholders, and other stakeholders.
The simple truth is that if we want businesses, incorporated or not, to be responsible for their actions, they must be treated as having some moral agency. And with moral agency and accountability must go the freedom to act in accordance with conscience. If we want the Greens’ businesses and other businesses like them to act conscientiously, they must have the freedom to follow their consciences. Indeed, it is probably with respect to our largest corporations that a fostering of moral and social conscience is most needed. The Supreme Court should take the opportunity to confirm that businesses can and should have consciences.
Mary Ann Glendon is a professor at Harvard Law School and a former US ambassador to the Holy See. She serves on the board of directors of the Becket Fund for Religious Liberty.