Supreme Court Says OK to Anti-Religion Speech

by Michael Potemra


One of the most important liberties is the right to criticize religions. Jacob Mchangama wrote a splendid article on NRO last month about the efforts of the Organization of the Islamic Conference to criminalize such criticism by labeling it “hate speech” under international human-rights law. On Monday, the U.S. Supreme Court sent a message on this issue: It declined to hear an appeal in the case of Catholic League v. San Francisco.

In 2006, the San Francisco Board of Supervisors passed a non-binding resolution including harsh criticism of the Catholic Church for its policies on gay adoption. A number of plaintiffs, led by the Catholic League for Religious and Civil Rights, took the Board of Supervisors to court, and lower courts rejected their effort to nullify the non-binding resolution. The Supreme Court refused to review that dismissal, and thus let the resolution stand.

That a Supreme Court with six Catholic members would affirm the right of elected officials to issue harsh criticisms of the Catholic Church amounts to a powerful reaffirmation of some fundamental Western — indeed, human — values. The trend in recent years, in the U.S. and worldwide, has been in the opposite direction. To quote Mchangama:

Unfortunately, as democracies cower before the power of authoritarian states abroad and politically correct elites at home, the principled defense of freedom of expression — even when it seriously offends — has become the exception rather than the norm, even in liberal democracies. The latest example is the impulse of many in the West to blame the murder of innocents in Afghanistan on the admittedly bigoted Pastor Jones, who burned a Koran, rather than on the religious fundamentalists, who killed in cold blood.

There is, of course, always a danger of double standards — there are, no doubt, some who would simultaneously applaud the San Francisco Board of Supervisors and be horrified at criticism of Islam as “hate speech.” But I hope, and trust, that our culture will find the backbone to apply “the principled defense of freedom of expression” with ever-greater consistency in the years ahead — and, crucially, to do so in a way that’s consistent with the Free Exercise Clause on religious rights. If San Francisco’s elected representatives can bash the Catholic Church on some specific issues, without interfering with the right of Catholics to practice their religion, then it might be possible for, e.g., Oklahoma voters to declare their opposition to some measures of sharia law without violating the rights of Muslims in their state. What makes people generally uncomfortable with such political actions is that they might poison the local culture — in San Francisco, against Catholics; in Oklahoma, against Muslims — but that is a question about the wisdom of these actions, not their constitutionality. (For the record, I consider both of these political actions to be substantively intemperate, unwise, and unnecessary.)

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