Last week, the Supreme Court heard oral arguments in the much-anticipated case of the Colorado baker who refused to bake a cake for a same-sex wedding. The extraordinary public interest in Masterpiece Cakeshop v. Colorado Civil Rights Commission (CCRC) stems from the high legal stakes. On the one hand, the CCRC emphasizes how its “public accommodations” laws protect the LGBT community from discrimination at the hands of businesses open to the public. On the other hand, the baker argues that his First Amendment rights — both free speech and religious liberty — prohibit government from requiring him to design and bake a custom-cake for an event that runs contrary to his religious beliefs. And so this all-out clash has grabbed our collective attention: how should our society prioritize these competing principles of 21st-century American law?
Not surprisingly, given the stakes for both religious and minority communities, Jewish institutions have entered the fray. On the extremes, Agudath Israel of America submitted an amicus brief to the Supreme Court, supporting the baker because upholding the decision against the baker “would also bar Orthodox Jews from living and conducting our businesses in accordance with our core religious beliefs.” By contrast, various Conservative, Reform and Reconstructionist organizations signed a brief in favor of the CCRC, arguing that “evenhanded civil rights enforcement that declines to give special status to any one set of religious views is consistent with the respect for pluralism, fundamental to First Amendment history and jurisprudence, that is the essence of religious liberty.” And somewhere in between — although certainly closer to the Agudath Israel’s position — the Orthodox Union joined a brief supporting the baker, arguing “[n]ow that the Court has protected the liberty of same-sex couples, it is equally important to protect the religious liberty of these conscientious objectors.”
That Jewish organizations and institutions are split, largely along denominational lines, on a religious liberty case is somewhat of a new phenomenon. While Jewish denominations have been divided for some time on cases about the separation of church and state — such as cases regarding government funding of private schools or religious symbols on government property — there had been far more denominational cohesion when it came to past religious liberty cases. Thus, for example, in 1963, when a Seventh-Day Adventist, who had refused to show up to work on her Sabbath, claimed that South Carolina’s denial of her unemployment benefits violated her religious liberty, Reform, Conservative and Orthodox denominations all joined together to support her claim. Similarly, when in 1972, an Amish family refused to send their child to public school for religious reasons, but in violation of Wisconsin law, Reform, Conservative and Orthodox denominations joined together to support the family’s religious liberty claim.
This is surely not to say that Jewish denominations have always agreed in religious liberty cases. But those divisions largely emerged in cases where religious liberty stood in tension with the rights of other minority groups. Maybe the most prominent example is the split among Jewish institutions on how to resolve the 1983 case Bob Jones University v. United States, where the IRS withdrew the university’s tax-exempt status on account of its policy requiring expulsion of students who engaged in inter-racial dating. The university claimed that withdrawing its tax-exempt status on account of the religious commitment to keeping races separate violated their First Amendment rights — a claim the Supreme Court ultimately rejected. But Jewish institutions were divided on which side to support; should the rights of a religious minority win the day or should racial minorities be afforded increased protection from discrimination in higher education?
This same dynamic has been at play since the Supreme Court’s decision recognizing the constitutional right to same-sex marriage. It was a landmark decision for government treatment of same-sex couples. But the decision provided limited guidance on how to resolve conflicts between the religious commitments of private religious individuals and institutions, and laws that are intended to protect the LGBT community from discrimination. And like in the case of Bob Jones University, these cases pull Jewish institutions in two opposite directions.
At bottom, the Jewish community — maybe more than any other community — has the lived experience to appreciate the vital importance of the two values represented by both sides of this case.
Religious liberty has long been at the center of advocacy efforts within the Jewish community. Whether it was the 1986 Supreme Court case addressing the constitutional right to wear a yarmulke in the military or the 2011 attempt in San Francisco to enact a circumcision ban, the American Jewish community has long linked its ability to fully participate in American society with the scope of protections afforded its customs and practices by the constitution.
And yet at the same time, public accommodations laws — that is, the very laws at stake in Masterpiece Cakeshop — have been essential to the ability of Jews to participate fully and freely in American commerce and business. Consider that, according to a 1957 Anti-Defamation League survey, nearly 23 percent of hotels in the United States discriminated against Jews. By 1964, that number dipped to 9.8 percent, which the ADL attributed to the adoption and enforcement of public accommodations laws. And public accommodations laws were just the beginning. The growth of anti-discrimination laws in areas such as employment and housing have been essential to the rise of the Jewish community in the United States, ensuring that our religious commitments did not foreclose our access to many of the essential opportunities and resources available to all other Americans.
So, when religious liberty and public accommodations laws go to war, one could reasonably expect the Jewish community to splinter, fully cognizant that both values have been essential to our integration and acceptance in the United States. At bottom, the Jewish community — maybe more than any other community — has the lived experience to appreciate the vital importance of the two values represented by both sides of this case.
And herein lies the opportunity for the Jewish community. Our collective divisions also reflect the Jewish community’s capacity to appreciate and value both sides of these legal dilemmas. That sort of appreciation, it turns out, is not commonplace. According to a 2016 study by the Pew Research Center, of those surveyed who believe that religiously motivated businesses should be required to serve same-sex couples, only 16 percent of respondents had sympathy for both sides; and of those surveyed who believe that religiously motivated businesses should be allowed to refuse service to same-sex couples, only 21 percent had sympathy for both sides. Put differently, it isn’t just that American disagree about these cases, but they fail to even sympathize with the plight of those on the other side.
‘Each side of the debate is unwilling to concede the value of the opposing side for fear of giving up ground in what is increasingly characterized as a zero-sum game.’
This inability to understand each other has consequences. It leaves each side of the debate unwilling to concede the value of the opposing side for fear of giving up ground in what is increasingly characterized as a zero-sum game. So those who promote anti-discrimination laws all too often denigrate the importance of religious liberty, asking why religiously motivated individuals and institutions can’t just change their ways. And those who promote religious liberty discount the dignitary harm of being told of not being served by business, wondering why the prospective customers can’t just go to another store. These hardened perspectives then spill over to other spheres so that even when the values aren’t in conflict — which is true in the overwhelming majority of cases — each side is unwilling to give an inch. The fear: that conceding the core values of others will somehow be used against them down the road. And so religious groups are reluctant to support anti-discrimination laws and LGBT groups are reluctant to support religious freedom laws.
But it is the growing specter of hardened conflict that highlights how our community’s divided commitment is actually a strength. Our history as both a religious community and a minority community, if fully embraced, prevents us from taking a narrow view when values clash; we are, in the end, fully conscious of the dangers and challenges that flow from the precariousness of being both religious and a minority within broader American society. And we have the ability to leverage this two-fold appreciation — to translate the fears and concerns of dueling constituencies that are at stake in these conflicts between religious liberty and anti-discrimination laws.
Cases like those of the baker demonstrate how factions within the United States don’t even understand each other. But as a religious minority with a unique history, the Jewish community has the potential to bridge this growing apathy that increasingly typifies our political discourse. We know what it is to be on both sides of these cases, to be pulled in two different direction. And we can teach others that conflicts over a baker shouldn’t prevent us from seeing — and promoting — the values at stake on both sides of this divide.
Michael A. Helfand is an associate professor at Pepperdine University School of Law and co-director of Pepperdine’s Diane and Guilford Glazer Institute for Jewish Studies.