December 12, 2018

Must A Jewish Baker Decorate An Agunah’s Wedding Cake?

Two little groom figurines hover above today’s Supreme Court’s arguments in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. By next summer, the justices will decide whether a state can force a baker to design a cake that celebrates an event like a gay wedding that conflicts with his deeply held beliefs.

Don’t believe the media’s claim that Masterpiece embodies the conflict between non-discrimination and religious liberty – because baker’s supposed homophobia is so flimsy it can hardly be called anti-gay discrimination. Here’s the key fact:

Baker Jack Phillips happily serves gay customers like me. He just won’t design our wedding cakes.

Lawyers for self-designated “cake artist” Jack Phillips told the court the baker “is happy to create other items for gay and lesbian clients.” Further, he would refuse to design a gay wedding cake even if the purchasers were straight – and he’d enthusiastically take gay money to design a straight wedding cake. He’ll also design cakes for LGBT people (like two bisexuals) who have an opposite-sex wedding. If he’s trying to discriminate against people who are gay, he’s picked a strange strategy for doing so.

By contrast, the artisans unjustly fined and run out of business in the name of “equal rights” are asking for no more than their constitutionally guaranteed freedom of expression – to participate only in events they agree with.

Since gay marriage still raises so much dander, consider a hot-button Jewish analogy that has nothing to do with homosexuality:

The most abominable ogre for traditional Jews like me is not pork or suicide bombers – or gay marriage, for that matter. It’s the remarriage of a woman who has not received a religious divorce. The offspring of such women (called agunot) are mamzerim (“bastards” is an imperfect but not untrue translation) whose innocent descendants face harsh personal-status restrictions for eternity.

The remarriage of agunot gives traditional rabbis and laypeople nightmares, and they schvitz nonstop to prevent mamzerim. The Orthodox Jews I know would not only refuse to provide such events with creative services – like baking cakes or writing calligraphy for ketubot (marriage certificates) – but many would resist providing non-creative services like catering and wedding halls as well.

As with Masterpiece, nobody is discriminating against agunot. Orthodox Jewish bakers would gladly sell them bagels or hamentashen. They just can’t participate in an event they abhor.

Look, I get it. American Jews are allergic to discrimination. Our collective memories of quotas and restrictive covenants prod us toward fair and equal policies whenever possible. But this case pits expression against discrimination, and a loss for the bakers could have real consequences for American Jews, well beyond highly charged situations like agunot:

  • ketubah calligrapher could have to design a marriage certificate for Messianic Jews.
  • Jewish wedding bands might be forced to perform at intermarriages.
  • An owner of a Jewish newspaper, perhaps, couldn’t decide for himself to include or not include wedding announcements from gays, intermarried couples, and Messianic Jews.

To their shame, the Anti-Defamation League (once again opposing Jewish interests) and the Reform movement have urged the court to restrict free expression if it dissents from America’s increasing gay-marriage consensus (the Orthodox Union and Agudath Israel weighed in on the other side).

The Jewish community is wide and diverse, and faces real threats in the face of anti-Semitism and assimilation. So every American Jew – left, right, and center – who is truly concerned about klal yisrael (Jewish unity) needs to defend every other kind of Jew against government intrusion. Orthodox Jews should worry about High Holiday policies in public schools even though their own children rarely attend them, and Reform Jews should provide vigorous support for an eruv on public property even if their own approach to Shabbat doesn’t require one.

Well, the Orthodox opposition to same-sex marriage isn’t going away. For altruistic reasons, the entire Jewish community should support religious Americans who don’t want to express ideas about gay marriage they abhor. But also for self-interested reasons – to retain the right of American Jews to make their own decisions about agunah remarriages, interfaith weddings, and Messianic Jewish ceremonies – every Jew should sympathize with the plight of a Christian baker who doesn’t want to be rushed off the public square before he has time for his dough to rise.

David Benkof is a frequent contributor to the Jewish Journal and a columnist for The Daily Caller. Follow him on Twitter (@DavidBenkof) or Facebook, or E-mail him at