Orthodox Groups Files Briefs in Religious Liberty Case


A broad base of Orthodox Jewish organizations have filed briefs in what is widely regarded as the most significant religious liberty case the Supreme Court plans to take up this year, asking the justices to strike a balance between rights of conscience and equal-treatment laws.

The case centers on Jack Phillips, a self described “cake artist” from Colorado. His case first developed after an administrative law judge and the Colorado Civil Rights Commission concluded that he had violated the state’s anti-discrimination statute when he turned down a request to bake a cake for an event he opposed on moral grounds.

While focusing on different angles, the groups each appeal to the court to protect Mr. Phillips’ right to run his business in keeping with his beliefs, saying that failure to do so would gravely endanger the ability of Orthodox Jews and other religious traditionalists to function in the modern workplace while remaining loyal to their faiths.

“Will our society honor the guarantees of the Free Exercise Clause when a religious practice is based upon a moral judgment that is anathema to the contemporary zeitgeist?” reads a brief from the Agudath Israel of America. “While U.S. constitutional law may have this flexibility, Jewish law, based upon the divinely revealed Written Law and Oral Law, is immutable… We recognize that our values in this area are out of sync with those of 2017 America…All we seek here, and all that we say the Free Exercise Clause requires, is to be allowed to continue to live our lives in accordance with Jewish law.”

The Agudah’s filing draws the court’s attention to several examples that have occurred in recent years in Western Europe where “progressive” values led governments to consider or even institute restrictions on shechitah and bris milah. It also notes the case of an Orthodox school for girls in London which failed a government inspection on the basis that it did not teach students about morally objectionable subjects.

A brief submitted by The National Jewish Commission on Law and Public Affairs (COLPA) has been signed by a number of organizations, including National Council of Young Israel, the Igud Harabbanim/Rabbinical Alliance of America, and the Orthodox Jewish Chamber of Commerce. It was prepared by Nathan Lewin and Dennis Rapps and was also joined by the Agudah, the Union of Orthodox Rabbis of the United States and Canada, Rabbinical Council of America, who filed other briefs as well.

The COLPA filing includes a lengthy discussion of the halachic concept of lifnei iver, aiding and abetting an activity forbidden by the Torah. It also notes that the customers who approached Mr. Phillips could have easily obtained the product they sought from another vendor.

“The only purpose of initiating a proceeding against the petitioners, was to override their religious objection,” says the brief. “Hence the Commission’s order amounted to covert suppression of particular religious beliefs.”

It also compares Colorado’s actions to a recent case in which a Muslim cab driver was fired for refusing to transport alcoholic beverages, which are forbidden according to Islam, noting that in that case many of the same groups arguing against Mr. Phillips’ claims were vocal supporters of the cab driver.

A brief authored by religious liberty expert, Douglas Laycock, on behalf of the OU, RCA and a number of Christian organizations, calls on the court to afford religious traditionalists with the same standards that it affords groups that have won favor in “progressive” circles.

“This unequal protection violates free exercise even though it stems not from an explicit exception for secular conduct, but rather from inconsistent interpretation of the law,” it says.

A passage in which the OU outlined its interest in the case says that Colorado’s actions pose a particular danger to religious minorities.

‘In this case, the Court will establish the balance between civil rights claims for some Americans in relation to the religious liberties of others. The continued ability of minority faith adherents to observe their religion’s demands in this pluralistic society hangs in the balance,” it says.

A newly formed group known as Jews for Religious Liberty joined a brief with several Christian and Muslim groups, stressing the need to protect the rights of religious individuals to live according to their beliefs not only in the arena of worship, but also in regards to conduct in the public forum.

“Free exercise rights extend to secular vocations as well as sacred. Most church members and college students will work in the secular marketplace rather than vocational ministry, yet they often feel ‘called’ to their occupations…If told they cannot witness to the truth through their work, or worse, that they must affirm a message that is false, they must resist,” it says.

The Supreme Court is expected to hear the case this coming December.