The friend-of-the-court brief I was drafting for the US Supreme Court on behalf of a coalition of American Orthodox Jewish organizations that combine and submit legal arguments under the tedious, self-important title “National Jewish Commission on Law and Public Affairs (‘COLPA’)” was due on Thursday, September 7. Our tickets for Israel had us leaving on the following Tuesday.
The case – probably the most important constitutional religious-liberty case before the Supreme Court in a quarter century – concerns a Christian baker who refused, on religious grounds, to create a custom wedding-cake for a same-sex couple. Colorado has a “public accommodations” law that prohibits merchants, including bakeries, from discriminating on the basis of “sexual orientation.” The Colorado Civil Rights Commission ruled that the baker violated the public accommodations law even though he offered to sell a standard cake to the same-sex couple and had never discriminated in selling cakes against a gay customer. He believed, however, that customizing a cake specially for a gay wedding amounted to participation that was forbidden by his Christian belief.
My brief supported the baker’s position. It noted the Biblical command “Do not place a stumbling-block before the blind,” and argued that forcing someone like the baker to take an active part in a religious ceremony that he thought was sinful was analogous to the Mishnaic directive at the beginning of tractate Avodah Zara that forbade Jews from engaging in even ordinary commerce that amounted to assistance to idolatry. The brief, endorsed by Agudath Israel, the National Council of Young Israel, Agudas HoRabonim, and other Orthodox organizations that comprise the usual COLPA coalition (but not by the Orthodox Union or the Rabbinical Council of America, who thought it more useful to join the brief of the Christian Legal Society), was filed by the deadline. And my wife then reminded me that I had better resume packing for our trip to Israel.
No less than 47 amicus curiae briefs were filed on September 7 in support of the baker. The most noteworthy was a brief filed by the United States Department of Justice. Although the administration of former President Barack Obama would unhesitatingly have supported the LGBT community’s condemnation of the baker, President Trump’s Department of Justice filed an extensive brief arguing that the baker should prevail because he had a constitutional right to free speech that was violated if he was forced to use his artistic skills to prepare a cake celebrating a wedding that conflicted with his values. The Washington Post was so outraged by this brief that it published an apoplectic editorial titled “The Justice Department Goes Out of Its Way To Side Against a Gay Couple.” Did it occur to the Post’s headline writer that the newspaper would be going “out of its way to side” against a devout Christian by omitting from the headline the baker’s religious motive for turning down this business opportunity?
We arrived in Israel to read the headline story of the apparently forced resignation from Knesset of Yigal Gueta, a Member of the Shas delegation who, two years ago, attended the same-sex wedding of his nephew. If an employer in the United States dared to fire an employee for attending a nephew’s same-sex wedding today (or having attended it two years ago), any court in the United States would immediately conclude that the discharge violated American civil rights laws. American Congressmen who are gay now boast publicly of their sexual orientation, and it would be unthinkable for any American legislator to resign because he participated or attended a gay wedding.
Many of the amicus briefs filed in support of Mr. Jack Phillips and his “Masterpiece Cakeshop” emphasized the “free speech” component of the baker’s claim. (I cannot claim to have read all 47, and I doubt whether any Supreme Court Justice will read them all – and the many that will be filed on the opposing side.) Freedom of expression, they said, should prevail over the literal terms of Colorado’s public accommodations law. Why, one wonders, shouldn’t free exercise of religion prevail? One hurdle is an astonishingly insensitive and short-sighted decision written by the late Justice Antonin Scalia a quarter of a century ago that effectively wrote the free exercise of religion clause out of the First Amendment.
A creative brief filed by the Becket Fund for Religious Liberty (an amazingly successful organization that defends religious rights of Christians, Muslims, and Jews) argued that a wedding ceremony is, by its very nature, religious. Forcing the baker to prepare a wedding cake violates his constitutional right (or what is left of it after Scalia’s opinion) by coercing participation in a religious ceremony. That leaves open a wide variety of cases that could affect Orthodox Jews who refuse to participate, for religious reasons, in prohibited activity that is not like a wedding ceremony. And what is the result if the merchant is not arguably engaged in “speech?”
Could an Orthodox Jew who owns a limousine service refuse a request from a Buddhist temple (universally considered avodah zarah by contemporary rabbinic authorities) to have his cars take participants to and from a service at the temple? There would probably be a halachic dispute if the service is readily available from some other source. But what if the merchant takes a strict view and is machmir? Would he have a permissible constitutional response if the local authorities threatened to take away his license unless he complied?
In addition to joining the brief I filed, Agudath Israel submitted its own brief, taking a very aggressive position against what it called today’s “zeitgeist.” It deplored the change in American society’s values over the past half-century and called on the Court to reverse it. There may be three votes on the Court sympathetic to that view (Justices Thomas, Alito, and Gorsuch), but no other Supreme Court Justice is likely to endorse it.
Nathan Lewin is a Washington lawyer who has argued 28 cases in the Supreme Court of the United States and is on the Adjunct Faculty of Columbia Law School where he teaches a seminar on Supreme Court Litigation.