Even kosher bakers have a right to free speech

(JNS) — Up until now, the legal battles being waged about tolerating dissent against support for gay marriage or gay pride events have been focused on conservative Christians. But a kosher baker in West Orange, N.J., is highlighting the fact that the question of the right to refuse to produce services for causes, ideas or beliefs can not only involve Jews but also create difficult dilemmas for Jewish communities.

While all those concerned understand that the baker has the law on his side, synagogues and even the local Jewish Federation seem prepared to ostracize him for his choice. By placing the bakery under a modern version of the traditional herem—a ban essentially separating an individual from the Jewish community—the Jewish Federation of Greater MetroWest NJ was making an important statement about its concept of what is and what isn’t consistent with the values of the Jewish community.

Such a decision was, no doubt, popular with the majority of that community, which is likely not Orthodox and views opposition to gay pride events as not merely mistaken but beyond the boundaries of normative behavior in contemporary American and Jewish society.

But can any federation that draws such a line, which designates a significant percentage of Orthodox Jews as being beyond the pale, do so without violating its prime mission to bring Jews together? If it is prepared to take such a stand, can it, in good conscience, be said to represent the interests of the entire Jewish community?

Yitzy Mittel, the owner of the West Orange Bake Shop, is the focus of the controversy. According to the New Jersey Jewish News, Mittel canceled orders from Congregation B’nai Israel, a Conservative synagogue located in Millburn, N.J. The synagogue wanted a rainbow-decorated cake and cookies to celebrate Gay Pride month. Additionally, they wanted rainbow cupcakes for a youth group.

The baker had made a pride cake for the same synagogue a year earlier but then had come to think that he had violated his own beliefs by doing so. The synagogue wound up getting their treats from another kosher bakery. But that wasn’t the end of it.

B’nai Israel’s Rabbi Robert Tobin reportedly sermonized about the incident, saying “I believe that humans are created in the image of God with a variety of potential gender identities with the possibility of gender fluidity.” He then defended “Pride” as a “reasonable overcorrection to the past history of discrimination against the LGBTQ+ communities by our religious and social authorities.”

He conceded that this disagreement didn’t mean that the bakery should lose its kosher certification and did say that the law was clear that Mittel had a right to do as he liked. But it was equally true that the synagogue also had a right to refuse to spend their money supporting businesses that don’t agree with them on such issues.

They were joined in this sentiment by other non-Orthodox synagogues in the area. The more important decision came from the MetroWest Jewish Federation, which covers an area of New Jersey that includes Essex, Morris, Sussex and Union counties, as well as parts of Somerset.

In an email, MetroWest executive vice president and CEO Dov Ben-Shimon circulated a memo to his staff that the organization will not be purchasing goods from Mittel’s bakery in the future.

Once the news of his decision was made public, Ben-Shimon heard criticism from those who thought it wrong for a federation that claimed to represent the entire Jewish community to be ostracizing a kosher baker who, after all, felt he was only following traditional interpretations of Jewish law. Ben-Shimon wanted no further part in the controversy, claiming that his initial decision was made in haste and was no longer official policy. While he called for dialogue, he also left it unclear whether the organization would, in fact, follow the lead of the synagogues in boycotting Mittlel’s business or if it would purchase items from it in the future.

Supreme Court decisions in cases like Masterpiece Cakeshop v. Colorado and, most recently, 303 Creative v. Elenis, have established that efforts by states like Colorado to effectively make it criminal for vendors to refuse to produce creative material for causes or beliefs that they personally oppose are unconstitutional. In doing so, the court has reaffirmed the basic principle that the right to religious freedom cannot be abrogated because certain beliefs fall out of fashion, as is the case with those who oppose the rapid acceptance of gay rights in the last decade.

Equally important, the 303 Creative decision made clear the distinction between denying ordinary services to people on the basis of their identity and being compelled to do work that specifically requires someone to use their talents to celebrate something they oppose. The Colorado Civil Rights Commission attempted to put Jack Phillip’s Masterpiece Bakeshop out of business for refusing to bake a cake for a gay marriage ceremony.

Like Phillips, who said he was happy to sell baked goods to any customer but didn’t think he ought to be forced to design a gay marriage cake, 303 Creative owner Lorie Smith similarly refused to design such a website while insisting that she didn’t turn away customers who ask for ordinary services. Mittel was doing the same thing.

One can argue that they’d be better off not turning away customers, but the point about religious liberty is that it is rooted in an understanding that the state must not make religious tests or declare some faiths, especially those rooted in the biblical values that helped create the United States, as beyond the protection of the law for all intents of purposes.

The court’s decisions in these cases have been bitterly criticized by liberal Jewish organizations like the Anti-Defamation League, and those representing Reform and Conservative Judaism. Like others on the left, they believe that upholding the rights of people like Phillips, Smith and Mittel is permitting discrimination that ought to be illegal. Yet the courts have rightly dismissed that argument, saying that this would mean compelling people to violate their religious beliefs and denying them the right to free speech.

After all, if a conservative Christian baker could be compelled to bake a gay wedding cake, on what grounds could, say, a Jewish baker, refuse to bake one that had Christian imagery or, perhaps, even Nazi symbols like a swastika? If the law reasons that gay marriage is a good thing that cannot be reasonably opposed while a Nazi cake is bad, then what is being proposed is not a legal principle but a decree that distinguishes between approved and illegal beliefs. And as much as most Americans now approve of marriage equality for gays and rightly regard Nazism with disgust and anger, the law cannot make such distinctions. As the court correctly noted in 303 Creative, the law cannot compel speech.

That’s a distinction difficult for many people to understand. Still, liberals who wish to ban opposition to gay marriage must realize that doing so would be to establish a system in which some creeds are permitted and others are not. The Constitution specifically opposes such a scheme, which would amount to a state religion in all but name.

Jewish groups in New Jersey have a different problem.

Support for gay rights has quickly become not merely popular in the Jewish community but is now regarded as a tenet of liberal Judaism. Some in the Orthodox world are open to more engagement with gay men and women, but much of that community is still opposed in principle to normalizing the issue—something that puts them very much at odds with the rest of society.

Yet it is ironic that liberal Jewish institutions that are committed to a “big tent” with regard to a variety of beliefs, including some that are critical of or opposed to the State of Israel, are utterly intolerant of Orthodox Jews and businesses that won’t go along with gay pride celebrations. If some organizations, like the ADL, seem primarily interested in pursuing a left-wing political agenda rather than defending the Jewish community on a host of issues, it would appear that this is now accompanied by an appetite for treating dissent on an issue like gay rights as grounds for expulsion from the community.

It is true that a community solely defined by a devotion to inclusion is one that stands for nothing. But does the fact that many Orthodox Jews are out of step with contemporary culture on some issues put them in the same category as, for example, groups like Jewish Voice for Peace, which don’t merely oppose Israel’s existence but traffic in antisemitism? How can a federation pretend to speak for all Jews by treating the Orthodox as now morally equivalent to those actively engaged in trying to harm Jews?

The answer is that it cannot. While we are all free to choose to purchase goods from businesses that are aligned with our personal values, when groups that pretend to uphold Jewish unity start placing kosher bakeries in herem—in much the same manner as an Amsterdam synagogue did to the great skeptic Baruch Spinoza in 1655—then the Jews have much bigger problems than where to purchase cupcakes.

Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him on Twitter at: @jonathans_tobin.