July 18, 2019

Equality Has Pros and Cons for Jews

A well-known joke describes a boy excitedly announcing Babe Ruth’s 60th home run to his grandfather, who responds: “Nu, is it good for the Jews?” Events continue to prompt that question in this century, among the most recent being the Supreme Court’s decision in the case involving Masterpiece Cakeshop. Jewish groups filed briefs for both sides, with progressive organizations favoring the same-sex couple, and traditional groups favoring the baker who declined to help them celebrate their wedding. 

Some of that contrast derives from the groups’ disparate opinions about same-sex relationships. But the debate goes deeper. It concerns which value — equality or liberty — best guarantees a future that is good for Jews in 21st-century America. 

Egalitarians point to history. They recall when employers and social clubs routinely excluded Jews from opportunities available to the Christian majority, and they fear the denial of equal access to public life. From this perspective, a victory for the couple helps everyone who might suffer exclusion from full participation in economic and social activity. 

Libertarians also point to history — a more remote one. They recall when Jewish practices such as Torah study or circumcision were criminal, even capital,  offenses, and they fear state prosecution of a religious minority’s nonconformity. From this perspective, a victory for the baker helps everyone whose different beliefs and conduct the political majority might otherwise outlaw. 

Anti-discrimination laws can protect religious groups — or suppress them. Great Britain’s House of Lords found that a Jewish school’s favoring the children of Jewish mothers in admissions violated the law against “racial discrimination.” The U.S. Supreme Court likewise upheld a University of California policy that forbade a student Christian Legal Society from requiring its officers to embrace Christian principles. Ensuring equal access for outsiders can erode the autonomy and integrity of religious organizations. 

Jewish schools, camps and for-profit businesses must face the question: When is it legitimate to consider the religious status of an applicant or customer? 

Judaism often requires consideration of religious status. So while Christian vendors tend to object most to same-sex ceremonies, Jews express more concern over interfaith weddings. Of course, the law protects clergy from having to perform weddings conflicting with their religious perspectives — but that is narrow protection. 

For example, Jewish law requires scribes sell Torah scrolls only to Jews, and prepare ketubot only for Jewish weddings. Should anti-discrimination law force a sofer to provide such writings to all customers without regard to religious status? 

“Anti-discrimination laws can protect religious groups — or suppress them.” 

The question resounds beyond ritual items. Must a calligrapher design an invitation for an intermarriage? Must a Jewish matchmaker or dating site facilitate interfaith relationships? In many ways, Jack Phillips, the baker who would sell plain cakes to same-sex couples but not ones “celebrating” their wedding, resembled a wedding singer who performs pop tunes at interfaith weddings but not the liturgical “Od Yishama.” 

The debate over the legal significance of religious status dates to the aftermath of the French Revolution. Comte de Clermont Tonnerre famously offered Jews everything “as individuals” but nothing “as a nation”; Jews could expect full equality in public institutions, but could not maintain private ones such as a Jewish court system to resolve disputes among Jews. Algerian Jews declined the offer of emancipation, seeking neither its “sting nor … honey.” Most other Sephardim as well as Eastern European Jews didn’t even get this choice. 

The United States has not enforced the bargain as rigidly as Western Europe. Unlike the French Revolution, a quest to reduce inequality, the American Revolution sought to foster self-determination. Egalitarian Europe has focused more on protecting citizens from indignities, whereas libertarian America seeks to protect private decision-making. 

“Ensuring equal access for outsiders can erode the autonomy, and integrity, of religious organizations.” 

These competing priorities produce stark differences. It is more difficult to criticize Judaism (or Islam) in Europe, which vigorously prosecutes “hate speech,” which often is defined to encompass criticism of religious practices. By contrast, the First Amendment permits denying the Holocaust and describing Judaism as a “gutter religion.” 

But Europe also makes it harder to practice disfavored customs. Several European nations have prohibited kosher and halal animal slaughter, forms of Islamic dress, and are considering bans on circumcision. These European prohibitions create more problems for Jewish survival than America’s laissez-faire model. 

Should a caterer be allowed to refuse to serve a b’rit milah because of ideological opposition to circumcision? It is tempting to oppose such refusals as discriminatory, and insist governments compel participation. But governments powerful enough to compel participation in such religious events also are powerful enough to forbid them. 

Judaism has long survived — even thrived — in environments where vendors refused to serve Jews. Surviving where the state bans and punishes basic religious practices may well prove more difficult.


Mitchell Keiter, a former law professor, is a certified appellate specialist at Keiter Appellate Law in Beverly Hills. He filed a successful amicus brief with the U.S. Supreme Court last year in NIFLA v. Beccera.