american law

OU and Agudath cheer Supreme Court’s cake decision


The Orthodox Union applauded the U.S. Supreme Court’s ruling in favor of a Colorado baker in his legal fight with a gay couple, calling it a victory for religious freedom. Liberal Jewish groups weighed in on the other side.

“Today, the United States Supreme Court sent a clear message: that the demonization of religious beliefs — especially in policymaking — is constitutionally unacceptable,” Nathan Diament, OU executive director for public policy, said in a statement. 

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court ruled that a Colorado baker was allowed to refuse to bake a cake celebrating a same-sex marriage. The decision, published Monday, was relatively narrow: The baker was within his rights, Justice Anthony Kennedy wrote for the majority, because a member of the Colorado Civil Rights Commission had made comments hostile to his faith while initially ruling on the incident.

“[T]hese disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” Kennedy wrote.

Conservative groups had hoped the ruling would be broader, allowing private businesses to refuse service to LGBT couples based on their religious beliefs. Liberal groups, likewise, hoped the court would ban such actions as illegal discrimination.

Liberal justices Stephen Breyer and Elena Kagan, who are Jewish, sided with the majority. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented, with Ginsberg saying that the majority opinion did not take fully into account the baker’s unwillingness to serve customers because of who they are.

The six Jewish groups opposing the decision, including the Anti-Defamation League and the Reform movement, were largely liberal. Their arguments all said the decision either effectively endorsed anti-LGBT discrimination or missed an opportunity to prohibit it.

“As Americans and as Jews, we affirm that discrimination is not ‘religious freedom,’ and pretending otherwise is an insult to those who have suffered religious persecution,” read a statement by Stosh Cotler, CEO of Bend the Arc, a liberal Jewish activist group. “We are relieved this decision was not the sweeping negative ruling it could have been.”

But the OU, employing similar ideas, reached the opposite conclusion: That the ruling strikes a blow against discrimination. Codifying the notion that the government cannot disparage religious groups, Diament told JTA, will be helpful to Jewish groups in the future.

“It’s crucial for Jews and for other minority communities that religious freedoms be given the strongest and widest scope,” he said in an interview Tuesday. “The intent of the policymakers is going to be taken into consideration when they’re evaluating a policy.”

Diament said the ruling could aid Jewish groups, for example, if a government body tries to pass a bill outlawing Jewish practices like circumcision or ritual slaughter. In a case like that, the bill could be unconstitutional if its sponsors make comments disparaging Judaism or Islam.

“Those are things that are based in religion that some people view as politically incorrect and want to have restricted,” Diament said. “Religious liberty jurisprudence is what’s going to be essential to preserving those practices for the Jewish community in the United States.”

Diament also appreciated a passage in Kennedy’s opinion stating that “a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.” He said that sentence will protect Orthodox synagogues that decline to celebrate Jewish same-sex marriages.

Orthodoxy is the only major Jewish denomination that opposes same-sex marriage. OU and other Orthodox groups criticized the 2015 Supreme Court decision legalizing such unions.

Agudath’s statement

Agudath Israel of America said this: “It is unfortunate that the ruling does not reach or provide clarity on the substantive question of whether Mr. Phillips and other such proprietors faced with similar conflicts will find free exercise protection within the First Amendment.

“Nonetheless, the Court’s ruling is gratifying in that it emphasizes that religious freedom concerns must be given a full and deserving measure of consideration, even within the context of local and state anti-discrimination law. It affirms the principle that state agencies may not presume religious rights to be of lesser value or deserving of lesser protection, and they may in no way exhibit hostility toward sincerely held religious beliefs. We are also heartened by the fact that this posture was adopted by the Justices by a wide 7–2 margin. We are also pleased that the Court has explicitly affirmed the right of members of the clergy to be able to refuse to participate in ceremonies to which they object for religious reasons.

“We hope that the Court’s posture will, in future cases, be instructive to state and local governments and lead them to give due deference to the religious freedoms that are among our Constitution’s and nation’s highest values.”