Katherine O’Connor is an art student at Carnegie Mellon University who allegedly decided to dress as the pope and march in a campus parade — or, at least, dress as the pope from the waist up. Police charged her with public nudity because she allegedly wore nothing at all below the belt.
As Eugene Volokh points out, there’s nothing unconstitutional about arresting someone this kind of childish stunt. If O’Connor actually displayed her genitals in public, police may arrest her for public nudity. Yet, in a statement expressing satisfaction with O’Connor’s arrest, Catholic Bishop David Zubik of the Pittsburgh Diocese endorsed far greater restrictions on free speech:
“As I have said over these last few weeks, this is an opportunity for all of us to be reminded that freedom of speech and freedom of expression do not constitute a freedom to dismiss or disrespect the beauty of anyone’s race, the sacredness of anyone’s religious belief or the uniqueness of anyone’s nationality.”
As a matter of First Amendment law, this is completely wrong. The First Amendment’s protections of controversial or even offensive speech are so great that they protected the right of self-described Nazis to march through a community with a large number of holocaust survivors while displaying swastikas. This was undoubtedly a much greater affront to “the sacredness of anyone’s religious belief” than an exhibitionist art project involving a single college student. Indeed, the First Amendment protects distressing or unpopular speech for a very simple reason: that’s the only kind of speech that needs protection. The other kind doesn’t typically get censored.
Extreme examples involving Nazis aside, the rule Bishop Zubik suggests is so dismissive of free speech that it would likely preclude any meaningful discussion of religion at all. The statement “I do not believe Jesus is the son of God,” for example, dismisses “the sacredness” of a core tenant of Christianity, but it is also what distinguishes non-Christian faiths from Christianity. It would neither be constitutional nor desirable to live in a country where such basic statements of disagreement with a faith are not allowed.
In fairness, Zubik is a religious leader and not a constitutional scholar, so he can be forgiven for not understanding the intricacies of First Amendment law. But his statement is part of a larger pattern of claims by American Catholic bishops that are incompatible with a diverse society where people of multiple faiths coexist. When the Obama Administration announced new rules requiring most employers to include birth control in their employer-provided health plans, the top attorney for the U.S. Conference of Catholic Bishops told USA Today that the Bishops would not be satisfied with merely exempting Catholic employers from the new rule. Rather, the administration must “remov[e] the provision from the health care law altogether” to placate the bishops. The bishops’ position is that all Americans, whether Catholic or not, must live under the legal regime chosen by the Catholic Church’s leadership, at least with respect to birth control.
Among other things, this puts them at odds with most Catholics. 82 percent of U.S. Catholics say that birth control is “morally acceptable” — only 15 percent agree with the bishops’ position. Similarly exit polls from 2012 suggest that efforts to turn Catholic voters away from President Obama did not succeed. Obama beat Romney among Catholics.