Religious Freedom Applies To All Or To None

As a religious minority, American Jews have long understood that the defense of Jewish rights depends on the ability of other faith groups to have the same freedom. Strip one of their rights and others can no longer be safe. But that principle no longer appears to be sacred to most of the groups tasked with the defense of Jewish rights. Many of the same groups that fought to pass a federal Religious Freedom Restoration Act in 1993 to restrict the ability of the state to “substantially burden” the exercise of faith don’t think it applies to those whose beliefs are not in sync with the majority culture with respect to issues such as gay marriage.

That’s why there were no cries of outrage from most of the organized Jewish community in reaction to the decision in State of Washington v. Arlene’s Flowers that came down last week. In the case, the Washington State Supreme Court ruled that a Christian florist who did not wish to design floral arrangements for a gay wedding because of her religious beliefs was guilty of discrimination and liable for severe financial penalties.

Most Jews not only approve of gay marriage as a matter of equal rights but may also think people like florist Baronelle Stutzman — the owner of Arlene’s Flowers — and bakers who won’t bake wedding cakes for gay couples are small-minded bigots. They no doubt see Stutzman’s claim that her religious liberty is being denied as an attempt to use faith to justify discrimination.

But one need not agree with Stutzman’s views about gay marriage or her faith, which, she says, obligates her to not take part in a ceremony that she believes is immoral, to understand that the decision by the Washington court is a threat to everyone’s religious freedom, including Jews.

Why should we defend Stutzman? First, because the comparisons between her behavior and the Jim Crow South — an argument accepted by the court — is specious. Stutzman had sold flowers to the gay couple in question for years. She just didn’t want to be asked to create floral designs for a ceremony that her faith told her was immoral. The court’s definition of a “public accommodation” is so broad as to potentially obligate florists or bakers or other persons who do creative designs rather than just rent halls or equipment to take part in any ceremony, including those celebrating things that might offend the consciences of Jews, like a Nazi or Ku Klux Klan event.

To make this point is not to compare gay couples celebrating their love to hate groups. Rather it is to observe that if you can compel Stutzman to do something her faith thinks is wrong, you can potentially use the same principle to compel anyone to do just about anything, provided, that is, that the majority approve of it at the time. As the majority of the court made clear, the case wasn’t about providing equal access to wedding flowers but to establish that Stutzman’s beliefs were an “independent social evil” that must be punished and driven out of the public square.

That’s where the Jim Crow analogy breaks down. There was no real harm to the couple, which could have left her in peace and gotten a flower arrangement designed by another florist. Blacks, however, were denied basic services as well as the right to vote by segregationist policies. Gays have been discriminated against in the past, but that is not the case now or what was at stake in the case. The Washington court’s conception of religious freedom is so cribbed as to make it meaningless. The demand here is not for equal rights but the right to brand the religious minority who disagree with gay marriage as pariahs who can be penalized for their faith.

The court did something that those of us who sympathize more with the gay couples who are our relatives, neighbors and friends than with conservative Christians will like. But treating the beliefs of those Christians and other faith groups — including some Jews — as beyond the pale means everyone’s First Amendment rights to free speech and free exercise of religion can be subordinated to any value privileged by the court and liable to suppression and punishment.

A court that gives itself the right to decide that the faith of a Christian florist upholds a “social evil” and that they must then be compelled to use their creative talents to celebrate a gay marriage could just as easily render the same judgment about any other religion.  It takes very little imagination to see how Jews could be hurt by this principle or how some Jewish practices — like kosher slaughter — could be driven underground by the same kind of reasoning if the courts fell into the hands of those who viewed it negatively or as being less important than upholding other values. That’s why, despite our sympathy for gay rights, Jews should be seeking to defend the religious freedom of Baronelle Stutzman, not cheering her punishment. 

Jonathan S. Tobin is a contributing writer for National Review. Follow him on Twitter at: @jonathans_tobin.