Law & the Courts

Masterpiece Cakeshop Will Help Protect Jews’ Religious Freedom

(Jonathan Ernst/Reuters)
It’s not for the government to decide if sincerely held beliefs are legitimate.

A Supreme Court decision protecting a Christian baker may help ensure that Jews can observe their faith free from governmental interference. Scholars have begun to debate whether the Supreme Court’s holding in Masterpiece Cakeshop provides broad or narrow protection for religious liberty. Both sides of that argument have merit. However, for religious minorities — the people most vulnerable to deprivations of their religious liberty — even a narrow holding may have a significant impact.

In Masterpiece Justice Kennedy wrote: “It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for” the baker’s “conscience-based objection is legitimate or illegitimate.” Religious minorities should appreciate that Justice Kennedy took the time to restate it nonetheless. Governmental entities have a nasty habit of refusing to protect religious practices that are, in their view, religiously mistaken or illegitimate. Hopefully, Justice Kennedy’s statement will put an end to this pernicious practice.

On June 5, one day after the Supreme Court decided Masterpiece, a district-court judge handed down a decision in Estes v. Clark. In that case, a Jewish prisoner named Bruce Estes sued his prison for refusing to provide kosher food as well as a ram’s horn for use in traditional holiday services.

The prison argued that Estes could not claim it had deprived him of religious liberty because the prison food was kosher enough to meet his religious needs. The prison rejected Estes’s claim that that the food was not kosher. It responded that, based on its understanding of Judaism, the food was kosher. The prison even hired a rabbi to testify that Estes misunderstood his faith. Estes hired his own rabbi to testify that the prison was not, in fact, properly preparing kosher food.

It should be immediately obvious that this sort of religious debate has no place in an American court. Judges are not qualified to determine which rabbi speaks for the only “True Judaism,” if such a thing even exists. And, even more important, the law would protect Estes’s right to religious liberty even if his personal faith differed from normative Judaism. Every American has a right to live in accordance with his conscience, regardless of whether he follows an orthodox faith.

Fortunately, the court saw through the prison’s nonsense. It decided that, for the purposes of Estes’s religious-liberty claim, the relevant question was whether eating the prison food would violate his own sincere religious beliefs. The court recognized that it had no business attempting to discover and apply the “true” Jewish law. Rather, it had to accept the validity of Estes’s sincere religious beliefs.

The court recognized that it had no business attempting to discover and apply the ‘true’ Jewish law. Rather, it had to accept the validity of Estes’s sincere religious beliefs.

Estes also requested access to a ceremonial ram’s horn, called a “shofar,” that Jews use during holiday prayers. The prison responded that it would compromise with Estes by providing him a recording of the shofar’s sound. Estes correctly replied that a recording of the shofar blasts does not comply with Jewish law.

Estes is correct as a matter of normative Jewish law, but this is irrelevant. As was the case with the kosher food, the court cannot look beyond the plaintiff’s sincere beliefs to discover what God really demands.

The court declined to rule on this issue, noting that it would have to consider the validity of the proposed compromise and decide the issue at a later date. The court should heed Justice Kennedy’s warning that it has no role in evaluating the legitimacy of Estes’s sincere religious claims and reject the prison’s illusory compromise. The court may deny Estes access to a shofar if it determines that access would be too dangerous or costly. But it cannot escape having to make that analysis by rejecting Estes’s claims that he is religiously obligated to hear the sounds directly.

Unfortunately, these cases do not always go as well as the Estes case has gone so far. For example, in Ben-Levi v. Brown, a prison prohibited Israel Ben-Levi, a Jewish prisoner, from organizing a Bible-study group for Jewish inmates. Members of other faiths could study Bible, but Jews were denied that right.

The court rejected Ben-Levi’s claims that the prohibition violated his religious liberty. The court erroneously concluded that Jewish law required the presence of 10 men or a rabbi for Bible study. Since Ben-Levi, according to the court, was religiously prohibited from studying the Bible, the prison was protecting his faith rather than burdening it. Religious Americans do not need such protectors.

It is likely that the court and the prison mistook the Jewish requirement of a quorum during certain parts of communal worship for a generalized requirement relating to Bible study. But the nature of the court’s mistake is irrelevant. The court erred as soon as it decided to evaluate the legitimacy of Ben-Levi’s sincere religious belief.

This is not an isolated incident. In the Little Sisters of the Poor litigation, challenging the Obamacare abortifacient mandate, the Tenth Circuit Court of Appeals derided nuns’ religious objections to being complicit in the provision of abortifacients as “unconvincing.” In EEOC v. R.G. and G.R. Harris Funeral Homes, the Sixth Circuit recognized that a funeral-home owner had an “honest conviction” that allowing a transgender employee to dress like a woman would “violate God’s commands.” However, the court determined that, “as a matter of law,” this type of complicity did not constitute sinful behavior. Since the court decided that the owner’s complicity would not be sinful, it saw no need to even consider granting a religious exemption.

Minority religions, such as Judaism, are the most vulnerable to mistreatment by judges inclined to play religious inquisitor. Judges, most of whom are likely unfamiliar with Jewish practices, are more likely to misunderstand or discount the importance of those practices relative to more common religious rituals that they encounter more regularly. Jews observe laws that may strike non-Jews as obscure, from refusing to wear a mixture of wool and linen to only eating wheat harvested at certain times of the year. Jewish Americans’ religious liberty should not depend on a judge’s ad hoc determinations regarding the validity of such practices.

The Supreme Court’s opinion in Masterpiece Cakeshop did not resolve the tension between the First Amendment and anti-discrimination laws. That is disappointing. However, it still may have done adherents of minority faiths a great service in reminding governmental entities that they have “no role” in determining the validity of their sincere beliefs.

Howard Slugh Howard Slugh is an attorney practicing in Washington, D.C. He is the co-founder of the Jewish Coalition for Religious Liberty.

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