By Carl Choper
The U.S. Supreme Court is considering a case that threatens to redefine the concept of religious liberty in America to the point that some people’s ability to freely practice religion will be threatened.
A Christian bakery in Colorado, Masterpiece Cakeshop, claims that it has a First Amendment right to refuse to sell a cake to a gay couple as part of their same-gender marriage celebration–in violation of a Colorado non-discrimination law and disregarding the religious freedom of its customers.
To insist that freedom of religion means the right to hinder someone else’s free practice of religion turns the concept of religious liberty on its head.
Let us suppose, for example, that there is but one commercially-available banquet hall for rent in a particular isolated small town in the Western United States.
Let us suppose that this banquet hall is owned and operated by a Christian who believes that his religion is the one true way to life and that all other faiths are a path to death and eternal damnation.
Further, let us suppose that this Christian believes that he must love his neighbor to the point that he cannot do anything to facilitate them walking down these paths.
Now let us suppose that in this same isolated town there is a small Jewish community, and into that community, a baby boy is born.
On the eighth day of that baby’s life, the family and its community want to celebrate a bris, a ceremony of entering the Jewish covenant involving the ritual circumcision of the boy, followed by a seudat-mitzvah, a traditionally-mandated banquet meal celebrating the joyous occasion.
The Jewish community would want to rent the only commercially-available banquet hall.
But in the name of his own religious liberty, the Christian banquet hall owner refuses to rent his hall to the Jewish community, which is effectively prevented from holding its traditionally-mandated banquet.
Does the business owner have the right to prevent the small Jewish community from observing their faith?
There have been cases in Pennsylvania where rape victims have come to emergency rooms only to be denied access to emergency contraception because the hospital disapproved.
Suppose there is a Jewish family living in a rural part of Pennsylvania where the only local hospital is a Catholic hospital. Suppose there is some tragedy and a Jewish woman from that family is brought into the emergency room with a condition requiring treatment involving contraception.
Catholic teaching and Jewish teaching diverge on this matter. Does the Church which owns the hospital have the right, protected by religious freedom, to prohibit the Jewish patient from following the teachings of her own religion?
This danger to religious liberty also extends potentially to Christianity, if a non-Christian business owner claims a religious objection to being involved in any way with the activities of a church.
In Masterpiece Cakeshop and similar cases, the same-gender couple may understand their own wedding in religious terms–a religious moment which the baker happened to disagree with.
Each of these examples involves one party depriving another party of religious liberty in the name of protecting their own religious liberty. In such cases, whose right should be protected?
The Constitution guarantees each American the right to freely practice religion and states that the government cannot compel an individual to violate the teachings of his or her own faith without some compelling need. Additionally, though, the state has a Constitutional obligation to provide equal protection of the laws for all persons.
The government has a compelling and constitutionally-based reason to uphold equal rights for all its citizens in the public realm. The government cannot allow merchants doing business with the public to serve only those with whom they are in religious agreement.
Just a few decades ago it was common practice for many hotels to refuse service to Jews.
Such a practice is illegal today, but it could become legal again if the hotel owner is a Christian who claims that it is a violation of religious liberty, based on medieval readings of the New Testament, to be forced to lodge Jews.
A legal system under which such religious discrimination was allowed would be failing in its obligation not to “deny to any person within its jurisdiction the equal protection of the laws.”
Is the state, in this case, however, compelling the banquet hall owner to violate his right of religious practice by insisting he must do business with everyone regardless of his own personal religious judgment?
No, because the government has not forced the banquet hall owner to be in that business.
If he cannot in good conscience run a banquet hall in a manner that allows for the compelling social need that every person must enjoy equal protection of the laws, perhaps he should not be in that business.
Or perhaps he should modify his business in some way.
A businessperson who does not feel he can serve people with whom he has deep religious disagreements cannot expect that the larger society will abandon its principles of equal protection of the laws in matters of public accommodation.
In a just society, businesses cannot refuse to serve certain customers because of who they are or how they celebrate who they love.
Rabbi Carl Choper is a community rabbi in Harrisburg, and president of the Interfaith Alliance of Pennsylvania. He writes from Harrisburg.