There was a slice for both sides in last week’s Supreme Court’s cake shop decision. Those who are concerned with government infringement on religious expression took heart — and even claimed victory — in the court’s conclusion that the Colorado Civil Rights Commission showed religious bias when it ruled against baker Jack Phillips, who turned down a gay couple wanting to order a wedding cake. Yet the majority ruling, written by Justice Anthony Kennedy, was equally clear that discrimination against gays is wholly unacceptable, a sign that the law is not moving backward when it comes to persecuted minorities. “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity or worth,” Kennedy wrote. “The exercise of their freedom on terms equal to others must be given great weight by the courts.” Of seven national Jewish organizations to comment on the ruling, only one praised it. The Orthodox Union, which opposes same-sex marriage, said the court sent out a clear message: “The demonization of religious beliefs — especially in policymaking — is constitutionally unacceptable.” Nathan Diament, the O.U.’s executive director for public policy, said, “It’s crucial for Jews and for other minority communities that religious freedoms be given the strongest and widest scope.”
The six Jewish groups opposing the decision largely represent the more liberal wings of the community. 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. “We are relieved this decision was not the sweeping negative ruling it could have been.” By ruling narrowly — the decision was more about the Colorado Civil Rights Commission’s bias than Phillips’ religious rights — the court avoided a sweeping ruling. And the court’s very clear aim for balance should be applauded. The decision, however, is far from the final word on the subject. Indeed, the court is set to consider whether to review a Washington state case of a florist and a same-sex couple. As it now stands, the court seems to be trying to balance the sometimes conflicting rights of religious expression and freedom from discrimination. That is a Solomonic task worthy of the nation’s highest court. Lost in the debate, however, is the idea that both freedom of religion and the right to equally access businesses holding themselves out to the public are fundamental American values. While we take heart in the ruling, which Diament said could aid Jewish groups should a municipality attempt to outlaw circumcision, it is important to remember that what makes this country great is not only its respect for religious views and expression. We are also a nation that believes that marginalized groups are deserving of protection.
