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 that 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, Col., 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
pro-life 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.
Shaw is a freelance writer from Washington and author of American Church: The
Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America.