May a Business Refuse Customers for Religious Reasons?

Rabbi Dovid E. Eidensohn

This June 2018 has seen the United States Supreme Court, by a vote of 7-2, strongly endorse the baker from Colorado who refused to make a wedding cake for two gay men. Justice Kennedy ruled that the Colorado Civil Rights Commission showed “an impermissible hostility toward religion” which the Supreme Court found intolerable. America, is after all, a country that respects the rights of religious people along with the rights of everybody else. In one exchange at a 2014 hearing before the commission cited by Kennedy, former commissioner Diann Rice said that “freedom of religion, and religion, has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.” In other words, religion is for Hitler and haters, not for Americans.

As an ultra-Orthodox Jew who studied intensely under the greatest European rabbis from Europe most of whom fled to America to escape Hitler, the idea that religion is a hate religion is an invention of people who have no belief in G‑d and may have no biblical base for any kind of morality. When life gets tough such people are tempted to try drugs and drink.

 I grew up in an America where almost the entire youth born of religious Orthodox parents from Europe were trained to make money and to despise religion. I once walked down the street wearing my yarmlka and a man stopped me, and with his best efforts at controlling himself asked me, “Don’t you know that people came from monkeys?” My father was the only one in his Bronx neighborhood with thousands of religious Jews who had children who would accompany their fathers to shull on Shabbos. Well, the people who believe that they came from monkeys can forget about family. I personally don’t come from a family that believes that their ancestors were monkeys. But we were the great minority in those days. Today it is much different.

My mother has a huge crowd of progeny and I with my children and their progeny are part of that crowd. It is growing stronger all of the time and statistics show that in Israel the Orthodox with their large families are moving to the top and others are disappearing. But even as in other sections of the population marriage and family are rapidly declining, people are simply switching the religion of their parents for the secularism, drugs and drink and immorality of today. From such a world, where marriage is in decline and families are being battered with divorce, people are finding new ways of surviving, and they are the ones who believe they come from monkeys. Personally, if I was a monkey, I would be embarrassed.

The issue of the baker and the gays is simply one of the extreme differences in America now, and the extremes are widening. Some I understand are talking very hideous and terrifying thoughts. There are those who feel that mighty changes are taking place that might make America a place where Orthodox Jews cannot live. There are passages in the bible that forbid certain marriages, and some say that reading these passages in the synagogue will eventually be declared a crime in America, and then, Jews will have to leave for Israel. In Israel, the non-Orthodox have a child and a dog. The child often leaves Israel and the dog doesn’t vote. Some Israeli children are becoming Orthodox, and that is a strongly growing movement with senior politicians in the highest positions in the government. I have ten children, all of them exactly like me, except that they surpass me both spiritually and materially but they make it clear that they all believe just the opposite. My daughters are constantly invited to make major speeches, and the topic is almost always how you had such wonderful family.

The question unanswered by the Supreme Court is if a State’s Civil Rights Commission did not insult religious people or religion, but maintained that insulting gays was wrong and they must be treated like everyone else. But the court ruled that the commission violated Phillips’ religious rights under the Constitution’s First Amendment – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petitition the Government for a redress of grievances.” Thus America has a conflict in its basic constitution. The First Amendment forbids discrimination against religion so people must be allowed to practice their religion. But civil rights of minorities is not always acceptable to all religious people, especially Orthodox Jews who believe that the bible came from G‑d’s teaching of the Ten Commandments at Sinai to all Israel assembled at Mr. Sinai. The finished bible established by Moses who went to heaven to learn the Torah from G‑d and further teachings were added for the many years of the life of Moses, all of them divine laws by G‑d. Can we practice a civil rights that demands that we treat gays and transgenders as if they are just like everybody else? The bible doesn’ teach that path.

Thus, we are talking about a war that is surely about to flame out openly, and probably the Supreme Court will have to deal with it, and how they will deal with it once the civil righters realize that they can’t openly insult religion, is something I can’t anticipate.

Let me conclude with a story about how many  years ago the old fashioned rabbis I studied under taught me that the growth of gay rights was a threat to the Torah. I accepted that and called up the two major Rosh Yeshivas of the American Agudas Israel. They both replied, “We are against hate, therefore it is forbidden to fight gays.” I spoke to some people who are very active in knowing exactly what goes on with the Agudah and other such groups. It seems that liberalism is expanding within the Haredi world, and this includes what these major Rosh Yeshivas told me, that to fight gay rights is an act of hate. In other word, our own Aguda Rosh Yeshivas think that those who keep the Torah and the passages about gays and such toeiva are haters. If we don’t deal with this, nothing else means anything. If we can’t control the rabbis of the Agudah, how can we control the Supreme Court? And if we lose both of them, we will have to leave America, or else we will have to teach our children to bake cakes for gays.