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.)
his post betrays a deep misunderstanding of the role of the Supreme Court in our judicial system. Denying a writ of certiorari is not the equivalent of "affirm[ing]" a lower court decision. By refusing to hear the appeal, the Court did not "sen[d] a message on this issue." Indeed, the denial of certiorari has no precedential value whatsoever.
SCOTUS is not an error-correcting court. Even if a majority of the Court believed the Ninth Circuit's decision was wrong, that does not mean that the Court would or should take the case. The Court sits as a law-developing Court; with that in mind, whether SCOTUS believes the lower court got a decision right or wrong is very low on the list of considerations in choosing to review a case. See Supreme Court Rule 10 for the considerations governing whether to grant a writ of certiorari. Essentially, the considerations go to the importance of the issue, rather than the correctness of the lower court's ruling.
That's not to say that the merits of the lower court's decision are totally irrelevant, but to imply that the court's action here somehow ratifies the lower court's decision is simply incorrect.
Reply to this commentLinkReport AbuseI'm glad you support the Supreme Court's decision to decline this appeal, but also think your comparison to Oklahoma's Sharia bill is an inapt one. You write:
"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."
If Oklahoma wants to "declare their opposition to some measures of sharia law," I'd agree that that is constitutional. But that's not what they did. Oklahoma did not pass a nonbinding resolution expressing disapproval. It passed a binding limit on courts in the state, insisting that they not rely on Sharia law in their decisions. That's not opposition to some measures of sharia, it's opposition to sharia as a whole, opposition that legally precludes consideration of Muslim law when making decisions.
Now, I don't particularly want sharia to be considered in legal decisions, any more than I want any religious code considered (except, of course, when the parties have contractually agreed to adhere to these principles). But this is categorically different from criticizing the Catholic Church's policy on gay adoptions. If Oklahoma wants to ban judges from considering any religious code, Christian or Muslim, then I think they can go ahead. But to single out a single religion not just for criticism, but disparate legal treatment is the heart of what the Free Exercise Clause was meant to prevent.
Reply to this commentLinkReport AbuseHey, Pennsylvania Yankee, Good point. Laws against inferior, unfashionable religions: Great. Laws against other religions: Unconstitutional.
Why don't you move to San Francisco? I think those annoying, annoying Catholics aren't really permitted to run free there, like they are in Pennsylvania, so you'll be annoyed less, but you'll have access to Potemra's posts, so you'll still get updates on what's wrong with Catholics.
Reply to this commentLinkReport AbuseI thought the opinion of the court below was erroneous. The members of the San Francisco Board of Supervisors are free, in their individual capacities, to urge the Catholic Church to do whatever they want. But here, the GOVERNMENT, the Board of Supervisors itself, sought to interfere in the affairs of the Church, telling it what policies the Bishop should adopt. That seems to me to either establish a state religion of some sort or interfere with the free exercise thereof.
You don't think it would violate the religion clause of the First Amendment were Congress to adopt a resolution calling on the College of Cardinals to elect as the next pope a priest who was, for example, committed to the ordination of women priests?
Reply to this commentLinkReport AbuseOK SQ 755 has no free exercise implications. It simply directs the courts to use federal and state law in deciding cases, specifically mentioning that international and sharia law are not to be relied on in judicial decisions. As for how this is "substantively intemperate, unwise, and unnecessary," first, the law merely prevents Oklahoma jurists from using international law in their decisions. As for whether it's necessary, Anthony Kennedy and the Supreme Court's liberal bloc routinely cite international law in their decisions; Oklahoma voters apparently disagreed with this practice and directed their jurists to act accordingly. On the sharia portion, the voters were simply acting to prevent the sharia creep we've seen in Europe. Sure, Oklahoma has very few Muslims and it was mostly unnecessary, but even Oklahoma has activists on the bench. Michel Potemra is wrong to accuse the voters of acting intemperately and unwisely.
Reply to this commentLinkReport AbusePatHMV:
I agree that the San Francisco resolution was wrong, but the First Amendment applies only to the national government. I'm pretty sure CT had a state church until 1820 or so, and I know MA had a general establishment of religion clause that required residents to belong to a church (though it didn't specify which) until 1833.
As I recall, it wasn't until around 1950 that the Supreme Court ruled that the 14th amendment clause forbidding the government to "abridge the privileges or immunities" of U.S. citizens, or to "deprive any person of life, liberty, or property, without due process of law," since it applied to the states, extended First amendment provisions to the states.
Even with that, though, the boundary has been a bit fuzzy with regard to how much leeway the individual states have. For instance, just went and looked up the MA state constitution, and Article III of Part the First still says:
"As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality ... the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily." Note that it says Protestant, not religious. This even excludes Catholic and Orthodox teachers from this public funding, much less non-Christians.
So while I think it is imprudent and unwise for San Francisco to make such a resolution and there is an argument, based on the aforementioned Supreme Court Case (wikipedia says it's Everson v. Board of Education, 1947, but I wouldn't swear to it) that it's unconstitutional, I think it better to err on the side of free speech and let them have their little resolution if it will make them feel better about themselves. After all, if they think they've done their duty to the gods of Political Correctness with this, maybe they won't try to do something that's ACTUALLY unconstitutional. Maybe. Probably not. But just maybe.
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