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Two SCOTUS cases may well reveal “the demon in democracy”

Cases from California and Colorado involving two different social issues—abortion and same-sex marriage—raise the same question about free speech and conscience.

(CNS file photo/Nancy Phelan Wiechec)

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.

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About Russell Shaw 282 Articles
Russell Shaw was secretary for public affairs of the National Conference of Catholic Bishops/United States Catholic Conference from 1969 to 1987. He is the author of 20 books, including Nothing to Hide, American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America, Eight Popes and the Crisis of Modernity, and, most recently, The Life of Jesus Christ (Our Sunday Visitor, 2021).


    • The problem is neither in democracy nor the state as abstractions, but in the concrete ways in which they are realized — in the stupid and sinful decisions made by the voters, elected officials, and bureaucrats. Due to the fall, we are all sinful and stupid, and this taints every structure we erect. The only reason it is possible for the Church to be truly, reliably, and enduringly holy is that she was founded by God; but the offices and institutions of the Church that were erected by men, to say nothing of the individuals within the Church, are subject to corruption. Please don’t pretend that democracy is somehow immune from this. We know in theory it should not be, and we observe in history that it is not.

  1. Our current American problems with democracy, freedom of speech, etc., reveal the prophetic wisdom of Blessed Pius IX in his Syllabus of Errors for which even today he is much criticized. He knew that these freedoms were open to abuse. The kinds of horrible things that are happening in our own times could not have been imagined even as recently as 60 years ago, but with his charism as Pope, Blessed Pius IX realized that what seemed to be enlightened could be an open door to the darkness. Without the corrective of Catholic truth, our enlightened thinkers, especially in the media, are leading us into the kingdom of darkness. And how persuasive they can be. To paraphrase the Devil speaking to Eve: Did God really tell you that? Listen to me.

    • I agree, except that I don’t think the insight of Pius IX had anything to do with being Pope. Generally speaking, the character and wisdom of a man does not seem to change much when he is elected Pope.

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