Liberals Against Freedom of Conscience

By Michael Barone Why is it considered liberal to compel others to say or fund things they dont believe? Thats a question raised by three Supreme Court decisions this year. And its a puzzling development for those of us old enough to remember when liberals championed free speech -- even advocacy of sedition or sodomy -- and conservatives wanted government to restrain or limit it. The three cases dealt with quite different issues. In National Institute of Family Life Advocates v. Becerra a 5-4 majority of the court overturned a California statute that required anti-abortion crisis pregnancy centers to inform clients where they could obtain free or inexpensive abortions -- something the centers regard as homicide. The same 5-4 majority in a second case Janus v. American Federation of State County and Municipal Employees reversed a 41-year-old precedent and ruled that public employees dont have to pay unions fees that cover the cost of collective bargaining. Echoing a position taken by then-President Franklin Roosevelt in the 1930s the court reasoned that collective bargaining with a public employer is inevitably a political matter and that forcing employees to finance it is compelling them to subsidize political speech with which they disagree. In the third case Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission the court avoided a direct decision on whether a baker whose Christian belief opposed same-sex marriage could refuse to design a custom wedding cake for a same-sex couple contrary to a state law that bars discrimination against gays. Seven justices ruled that the commission showed an impermissible animus against religion but the four liberal justices endorsed a separate opinion indicating theyd rule against the baker otherwise. Rational arguments can now be made for the dissenters positions. In Becerra they argued that the law simply prevented misleading advertising; in Janus they argued that union members should pay for services rendered; in Masterpiece Bakery they argued that selling a cake is a routine service not a form of expression. You may not agree but you can see why others might make these arguments. But are they liberal? That word comes from a Latin root that means free. And free is the keyword in the First Amendment to the Constitution which bars Congress from passing laws prohibiting the free exercise of religion or abridging the freedom of speech or of the press. The Supreme Court First Amendment jurisprudence got its start almost exactly 100 years ago in cases challenging laws passed by a Democratic Congress and endorsed by a Democratic administration prohibiting opposition to the government and specifically American participation in World War I. The justices hesitated to block such prosecutions but those considered liberal -- Republican appointee Justice Oliver Wendell Holmes and Democratic appointee Justice Louis Brandeis -- were most likely to look askance. The American Civil Liberties Union was founded in 1920 to defend the free speech rights of everyone even vile extremists. Unhappily the ACLU today subordinates free speech to other values like defending the sensibilities of certain students on campuses. And other liberals have been moving in the same direction. Its less important for them that people say what they think and more important that they say what the government requires. In his Bagehot blog the Economists Adrian Wooldridge describes the process. Historically he says liberals understood that conflict was inevitable and tried to foster freedom based on their distrust of power faith in progress and belief in civic respect. But today Wooldridge writes liberalism as a philosophy has been captured by a technocratic-managerial-cosmopolitan elite. They have moved from making a critique of the existing power structure to becoming one of the most powerful elites in history. In response we see a revolt of the provinces against the city: Brexit Donald Trump. In counter-response as Niall Ferguson puts it in a column for The Times of London liberals are increasingly authoritarian. Like the liberal Supreme Court justices who dont see a constitutional problem with compelling crisis pregnancy centers to send messages they find repugnant or requiring union members to subsidize political speech they disagree with or forcing people to participate in ceremonies prohibited by their religion. In the process they are providing support for Friedrich Hayeks argument in The Road to Serfdom that moving toward socialism means moving toward authoritarianism. And they seem to not have noticed Yale Law Professor Stephen Carters observation as quoted in The Atlantic that every law is violent because Behind every exercise of law stands the sheriff. Carter calls for a degree of humility in passing and enforcing laws that compel speech against conscience -- something todays liberals seem to have forgotten.