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The secularist left wants your cake and eat it too

An upcoming Supreme Court case over free speech and homosexuality is eliciting outrage from the usual quarters.

(Image: Sebastian Pichler/

One of the most attractive features of the Supreme Court in the last several years has been its generally friendly view of religion. One of the least attractive has been the open hostility of secularist sources faced with this development.

I say this thinking especially of what will probably be the most important religion-related case of the court’s present term It’s called 303 Creative LLC vs. Elenis, and it concerns a Colorado website designer who refuses to design wedding sites in celebration of same-sex unions as Colorado non-discrimination law would have her do.

According to the website designer, Lorie Smith, she has no objection to doing other work for such couples, and if it’s a wedding site they want, she is quite prepared to refer them to another designer. The problem for her is expressing approval. Smith, a practicing Christian, finds same-sex marriage to be in conflict with the Bible, and she draws the line at creating a site that celebrates it.

Represented by a Christian Legal Advocacy Group called the Alliance Defending Freedom, Smith brought her case to the Supreme Court on appeal from a 2-1 ruling against her by the U.S. Court of Appeals for the 10th Circuit.

The Supreme Court heard oral arguments last December, and a decision could be forthcoming any time between now and next June, although later rather than sooner is probably the best bet. Most court observers expect a 6-3 decision in favor of Smith, with the court’s six conservatives delivering another religion-friendly ruling.

Over on the secular left, the chorus of outrage has already begun. I was particularly struck by a short piece by Erwin Chemerinsky, dean of the University of California Berkeley law school, who warns darkly that the Supreme Court is gearing up to rule that “free exercise of religion” justifies “an exemption from anti-discrimination laws.”

There are several things wrong with that, not the least being that although Smith’s case does involve a religious interest, the case as argued before the Supreme Court is not about free exercise of religion but freedom of speech, and almost certainly it will be decided that way. For at the time the Supreme Court accepted the case for review, it specifically—and publicly—instructed the lawyers to argue only that question. Dean Chemerinsky wasn’t watching, perhaps?

The dean also tips his hand to a degree not common among those who share his point of view. Reciting secularist dogma, he writes, “Religion’s place should be in our private lives, homes, and houses of worship.” In this perspective, virtually any extension of the Constitution’s guarantee of religious free exercise beyond the private sphere violates Thomas Jefferson’s metaphorical “wall of separation” between church and state.

Chemerinsky is hardly alone. In an overview of the Supreme Court’s current term, Ruth Marcus, an associate editor of the Washington Post editorial page who used to cover the court for that newspaper, said the justices “dismantled the wall of separation” last term and were making ready to do more of the same this time in 303 Creative.

One could go on naming names and quoting quotes, but the point should be clear: a lot of people who undoubtedly consider themselves to be champions of free speech and individual rights see no reason not to trample on the free speech and individual rights of others deemed guilty of what constitutional law authority Hadley Arkes calls the “underlying sin” of harboring “an adverse moral judgment on the homosexual life.”

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About Russell Shaw 286 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).


  1. Yup, freedom of religion is subject to verbal sleight of hand…

    The content-challenged term “freedom of worship” begins to replace the constitutional and less marginalizing right to exercise religion publicly—“freedom of religion.” By more than coincidence . . . the (not “secularist” alone) Muslim Declaration of Human Rights (1981, Section XIII) reads: “Every person has the right to freedom of worship in accordance with his religious beliefs,” but not public freedom of religion as assured in the earlier (and eclipsed?) United Nations Declaration of Human Rights (1948).

    In more trustworthy times, even President Roosevelt breezily listed “freedom of worship” (not religion) in his Address on the Four Freedoms (1941):

  2. Hadley Arkes has it right, it comes down to having a different moral view on homosexuality. And further, as Russell Shaw suggests in his article’s title, it’s more an attempt to impose homosexuality as a class right, as such requiring full acceptance without the religious right of exclusion.
    Homosexuality in America has become a civil rights issue. If that proceeds then Catholic institutions will be required by law to refrain from exclusion policy. The injustice is that homosexuality is a behavioral choice, not a true class of persons with an inherent qualification [why homosexuals argue it’s their nature]. It’s a moral question, not a legal justice issue, the State imposing itself, in one sense as a moral arbiter under pressure from LGBT groups, but in effect treating it as a justice issue.
    As long as our Woke culture remains the Church will be portrayed as a threat to freedom and human rights. A religious conversion alone would reverse the injustice.

  3. Well said. Freedom of Speech, ie the right to not be FORCED to say what one does not want to say (for example, nobody would agree that we should force a business to dedicate a web page to, say, the Pledge of Allegiance of the USA, or force a business to dedicate a Web Page to, say, a KKK group’s anniversary celebration, would they?) is at issue here.

  4. In response to the comment, “Religion’s place should be in our private lives, homes, and houses of worship.” I would suggest adding, “a person’s sexual preferences and experiences should be in their private lives, homes, bedrooms.” The rest of us are not interested.

  5. Homosexuality is the most highly imperialistic, fascist pseudo-religion in all of history and that’s why they claim an ABSOLUTE right not to be judged by anyone when all other religions (and pseudo-religions) are judged with different degress of severity. But not homosexuality, that not only claims a supreme and absolute right not to be judged but also a supreme and absolute right to impose its agenda on everyone and their children.

    Homosexuality has none of those rights that they DE FACTO claim again and again and again. They can only build such imperialism on our naive and cowardly acceptance, aquiescence and complicity. Homosexuality is soul-suicide and it deserves no immoral enabling respect, and therefore must be resisted and exposed for the imperialistic, insane, lustful pseudo-religion that it is.

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