The United States Supreme Court struck a blow last week not only in support of free speech and religious liberty but also, perhaps more importantly given the extreme polarization in American society, for the virtue of tolerance. The Court ruled 6-3 that a Colorado businesswoman need not fear state retribution if she refuses to design web sites (her specialty) for same sex weddings which she opposes on religious grounds. Coercing her to violate her religious beliefs – she is a Christian evangelical – would be tantamount to compelling her to articulate views that infringe on her First Amendment right of freedom of speech. That, the Court opined, is now unconstitutional. The implications are profound.
It is important to note that the Court did not directly implicate the First Amendment’s freedom of worship clause. Indeed, the Court rooted her refusal to accommodate such weddings in the Bible’s conclusion that same sex marriages are deemed by G-d to be “false,” a curious formulation apparently drawn from the appellant’s own filings. The word “sin” does not appear anywhere in the decision; yet it would be incorrect to suggest that this decision does not impact on our freedom to learn Torah, observe mitzvot, and propagate our values to our families and the general community. It is a stunning, if not unexpected victory for people of faith and reverses decades of sustained attacks on individual conscience.
This should put to rest the protracted battles waged against private business owners – bakers, florists, photographers, caterers, printers, etc. – whose religious beliefs preclude them from facilitating same sex marriages. The principle is obvious: no person should be forced to use his or her creative abilities to promote something they deem abhorrent. This distinguishes a baker refusing to sell a cake from his showcase to a same-sex couple, or to someone who is Black, Asian or Jewish (such would be wrong and repugnant) from the baker who declines to bake a special cake with a message that violates his conscience, a printer who refuses to print invitations to a same sex wedding, or a caterer or catering hall that declines to service an intermarriage. It is the difference between servicing an individual consumer who comes to a business seeking a neutral product and the consumer who wants to use someone else’s talents to promote causes to which the business owner has moral objections.
Why has this obvious principle been so difficult to implement – and why does its reasonableness continue to elude Justice Sonia Sotomayor as is evident in her dissent? It is because the objectives of most of the LGBT community have long exceeded a desire for hospital visits, shared insurance coverage, civil unions, and marriage; it is that their goal for almost the last decade has been the eradication of any dissenting voice to their lifestyle, any reminder that the actions which they celebrate are prohibited by the Torah and considered anathema in all bible-believing religions. They no longer seek equality; they seek legitimacy and feel no hesitation in trampling on the rights of people of faith, essentially demanding that their cause be embraced by everyone without exception with civil, social and even criminal penalties applied to those religious people who remain recalcitrant.
It is a breathtaking form of bullying and it has worked – until now.
Undoubtedly, the original sin – so to speak – was the conflation of conduct or orientation (LGBT) with immutable categories such as race and even religion (one is born into religion; even a non-practicing Catholic will refer to himself as a lapsed Catholic) in terms of civil rights. In a perfect world, none of us would sin, but even in an imperfect but somewhat normal world, private behavior would remain private and beyond the realm of public knowledge or state interest. But in a society lacking in decorum, decency, and a modicum of modesty, many people yearn to disseminate globally their most intimate experiences. We were expected to abandon our consciences and religious obligations to join in the merriment of reprobate behavior. The Court repudiated that notion and declared that religious people are not second class citizens and they cannot be forced to grit their teeth and use their talents in ways that betray what is most precious to them.
The Court unequivocally affirmed that every person has freedom of conscience – and can even hold and express views that some find unpleasant and challenging. So be it. No citizen has the right to demand that a Muslim publisher print a picture of Mohammed, a Christian cannot be compelled to mock their icons, and even an atheist cannot be ordered to circulate the Bible. Those patrons can and should go elsewhere. That is mutual tolerance, truly a lost virtue that needs to be recovered. In the short term, we would do well to restore “live and let live,” and not as the LGBT activists have recently asserted “we will live as we please and you will support us wholeheartedly or we will crush you, sue you, cancel you, shame you, harass you, get you fired, and attempt to drive you out of our enlightened society.”
Certainly this struggle has not ended. The recent boycott announced by a New Jersey Federation (since retracted) of a religious baker who declined to bake a rainbow cake is one example of a tactic that is legal but misguided, and will only further inflame society. And when proposed by Jews against Jews can only encourage our enemies to do the same against all Jews. The United States still has many social and political problems but this latest win in the Supreme Court – the “303 Creative” decision – recalibrated the protections of individual freedom. Even a brief era of mutual tolerance would be a welcome respite from the anger and strife that have become part of daily life. It is not often that one Supreme Court ruling has the potential to have such far-reaching consequences.