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As far as most liberal Jewish groups are concerned, Lorie Smith is a bigot who deserves to have her business destroyed and to be driven from the public square. It’s a sentiment that may be shared by most Jews and perhaps a majority of Americans. But the U.S. Supreme Court, which heard a case this week involving her website-design business, 303 Creative, appears to be poised to issue a ruling that will defend her right not to be compelled to celebrate gay marriages.
If the court rules in Smith’s favor, it will be going against the advice in a brief submitted by a coalition of liberal and leftist organizations, including various branches of Reform Judaism, Hadassah, National Council of Jewish Women, Bend the Arc and T’ruah. Their position was that laws banning discrimination against LGBTQs should apply even to those who do creative work. If they had their way, Smith, a conservative Christian, would be compelled to design sites for gay couples, despite their marriages going against her religious beliefs.
To her claim that forcing her to comply would be to deprive her of her First Amendment right to free exercise of religion, they say that any business serving a broad audience is subject to rules that apply to public accommodation. Their argument is that just as no restaurant or grocery store has the right to turn away racial or religious minorities, Colorado’s laws against discrimination mean that Smith must design a website for gay marriages if a customer requests one.
The Biden administration agreed, and sent Deputy Solicitor General Eric Olson to join the state in defending its ruling. In doing so, they were largely following popular sentiment.
Attitudes toward the LGBTQ community and gay nuptials have shifted over the last generation. During his presidential campaign in 2008, Barack Obama asserted that marriage was only between a man and a woman, because even a liberal like him knew that most Americans opposed official same-sex unions.
But, by the time that the Supreme Court ruled, by a 5-4 majority, in the 2015 case of Obergefell v. Hodges that the 14th Amendment’s equal-protection clause required states to treat same-sex marriages the same as heterosexual ones, the pendulum had swung in the other direction.
The latest Gallup poll on the issue, published in June, showed that 71% of Americans support gay marriage. Compare this to 1996, when then-President Bill Clinton signed into law the Defense of Marriage Act, prohibiting the federal government from recognizing gay marriages. At the time, only 27% of Americans favored them.
The point is that American society has long since accepted gay marriage as an ordinary fact of life, and there is no interest on the political right or in Congress for revisiting a debate on the now-settled issue.
Nevertheless, even if huge majorities of Americans think Smith is both misguided and foolish to turn away potential paying customers because she doesn’t want to design gay-marriage websites along with the ones for other couples, she shouldn’t be driven out of business by the state for upholding her religious beliefs.
The idea that faith is only something to be practiced in private, or limited to the right to choose what house of worship you wish to attend, is not what the framers of the First Amendment intended. Our first freedom was put in place specifically to defend the rights of religious minorities, not to facilitate efforts by majorities to force them to comply with beliefs that offend their principles.
That this protection should be afforded to a conservative Christian, a member of a group whose beliefs were normative for most Americans up until very recently is highly ironic. And since many people—especially the overwhelming majority of Jews, who are politically and religiously liberal—now view people like Smith with deep suspicion and even fear, her plight is something for which they feel no sympathy. As far as they are concerned, she deserves to be punished for holding on to what they consider not merely out of fashion, but evil and prejudiced.
It’s deeply discouraging to think that groups who still view themselves as religious minorities—such as Jews—have come to see faiths they don’t like as undeserving of the same protections that they themselves enjoy. Even more disturbing is what’s at the core of this mindset.
This doesn’t just reflect a lack of empathy—an inability to put themselves in the place of those who are being muscled by the state. It’s worse than that.
Indeed, the left has arrived at a place where it is no longer particularly interested in civil liberties. This is best illustrated by the American Civil Liberties Union.
The ACLU always used to be ready to rise to the defense of any minority, even one whose beliefs it strongly disagreed with. Now, however, it reserves its efforts exclusively for causes with which it sympathizes—those that are in sync with liberal political fashion.
It is all the more important, therefore, for the court to ensure that the First Amendment is interpreted in such a way as to guarantee that faith shouldn’t be kept out of the public square. And to guarantee that those whose views differ from majority opinion are protected.
You don’t have to agree with Smith to see that the same majoritarian impulse that seeks to crush her and those who agree with her could very easily be applied to Orthodox Jews or any minority. This was a point made in a brief submitted to the Court by the Jewish Coalition for Religious Liberty.
The conservative legal group’s argument was quoted by Justice Samuel Alito during oral arguments. He asked Deputy Solicitor General Olson whether an Orthodox-Jewish web designer would be compelled to create a site for an interfaith marriage that involved a Jew. For obvious reasons, he didn’t get a coherent answer.
The argument against Smith and 303 Creative fails not just because we wish to defend religious minorities. It also flops due to the entire notion that people who perform creative work—as opposed to just selling products over the counter or providing a neutral service, such as that provided by grocery stores or restaurants—must be forced to design, on demand, any item, no matter how offensive they might find it to be.
The conservative Jewish brief also posed a hypothetical about a Jewish baker asked by a Nazi to create a cake celebrating Kristallnacht. If you think such a baker has the right to tell the customer to take a hike, how can you refuse a Christian artisan the same right in relation to gay marriage? If your answer is that the first is justified because the Nazi is bad, but that gay marriage is good, you are expressing a political position, not espousing a legal principle.
The Constitution doesn’t just protect speech that we like or faiths we think are sympathetic. Liberal Jews may be on firm ground when it comes to supporting gay marriage, but their eagerness to shut down faiths with which they disagree demonstrates that they believe religious freedom applies only to those who think like them. That’s a contemptible political position the Supreme Court should reject.
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him on Twitter at: @jonathans_tobin.
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