Russell Shaw Free speech, conscience, and the court

Apr 3, 2018

In his much discussed indictment of secularized liberal democracy, Polish philosopher and sometime government minister Ryszard Legutko writes bitingly of the powerful and coercive "demon" he so abhors. Toward the end of The Demon in Democracy (Encounter Books) he describes the problem like this: "The law has become a sword against the unresponsiveness and sometimes resistance of society to the policy of aggressive social restructuring that is euphemistically called modernization."

Legutko writes as a conservative intellectual who, having lived under communism, has had it up to here with social engineering as practiced by that super-nanny called the European Union. And in America? Two cases which the Supreme Court will decide sometime between now and the start of summer reflect the same dynamic at work here.

The cases come from two different states, California and Colorado, involve two different social issues – abortion and same-sex marriage – and have two very different sets of facts. But both raise the same free speech question: How far can the state legitimately go in forcing individuals and groups to communicate messages that support things they reject in conscience?

In the Colorado case (Masterpiece Cakeshop v. Civil Rights Commission) the state supreme court upheld the civil rights panel's finding that a Lakewood, Colorado baker named Jack Phillips, an evangelical Christian who opposes same-sex marriage on conscience grounds, violated anti-discrimination law by declining to bake a wedding cake for a same-sex couple. 

Phillips says baking cakes is a form of self-expression for him, and compelling him to provide a wedding cake in these circumstances would be compelling him to lend support to something his conscience tells him is wrong.

The U.S. Supreme Court heard oral arguments in this case last December, and its decision could come at any time. It will be interesting to see whether the court chooses to link it to the California case (National Institute of Family and Life Advocates v. Becerra), which was argued March 20.

The dispute here concerns a California law requiring licensed prolife pregnancy counseling centers to post notices advising clients of the availability of free abortion elsewhere, and unlicensed centers to give prominence to the fact that they aren't medical facilities. 

Other courts have overturned laws like this, but a panel of the 9th Circuit U.S. Court of Appeals upheld California's version. Thus the pregnancy counseling centers, most of them religiously sponsored, face having to communicate messages intended (by the state legislature, that is) to lend support to abortion providers. This is what Legutko describes in his book: "The state representatives, armed with the rhetoric of antidiscrimination, felt it was their duty to regulate matters that for too long had remained unregulated, which often meant giving privileges to certain groups and taking them away from others."

The U.S. Conference of Catholic Bishops is one of many groups that filed amicus curiae briefs in both of these cases. The USCCB brief in the California case underlines the fact that religious groups – and, one might add, individuals – are not infrequently called by conscience to embrace positions of a "countercultural" nature when measured against prevailing secular values. The First Amendment requires that the government respect this right, not seek to undermine it.

Legutko speaks of a "crusade against Christianity" in Europe, where aggressive secularists "continue to make new conquests and to colonize more and more areas of human life." What the Supreme Court says about these cases from California and Colorado will do much to determine the future of similar efforts on this side of the Atlantic.