The Supreme Court decision granting equal marriage rights to gays is bringing fear mongers out of the closet. Nathan Lewin’s op/ed My Rabbi Needs Legal Aid in The Jewish Exponent strives to instill in the Orthodox community a wholly unnecessary fear of gay rights. The article argues that an Orthodox rabbi may be forced to officiate at a gay wedding, contrary to the view of marriage expressed in Genesis 2:24, “A man shall leave his father and mother and cling to his woman and they shall become one flesh.”
The Supreme Court is, of course, precluded by the First Amendment from adopting the Bible as its law. Separation of church and state requires that it find other bases for decisions.
When two important Constitutional rights collide — say my right of equal protection of the laws and your freedom of religious practice — courts need to decide which right prevails. Contrary to the Nathan Lewin’s worries, the trend today is full tilt in favor of religion.
In the most recent case, a person who wears a burqa head and face covering for religious reasons applied for employment as a sales clerk at Abercrombie & Fitch. The retailer has a policy that sales clerks model its style of clothing. The Supreme Court ruled that the retailer has to offer an accommodation for the religious headdress.
Last year the Court ruled that Hobby Lobby whose stores employee close to 1,000 people need not provide federally mandated contraceptive care in its health insurance. This ruling put the religious scruple of the employer above the health care of almost a thousand families!
The Exponent article refers to the Bob Jones University case from 1983. There Congress took away the tax exemption for charitable organizations from private schools that discriminate on the basis of race, and the Supreme Court upheld the law. But the hypothetical synagogue whose rabbi who does not want to perform gay marriages is not discriminating on the basis of race. The Bob Jones decision is not applicable.
Actually, churches and synagogues have the broadest discretion of any institutions to snub their noses at the law. This includes Orthodox synagogues. Their hiring and firing enjoys independence that the retailer with the burqa applicant might wish for (but would never receive). Laws and regulations routinely exempt them from compliance that would violate their individual conscience. Since 1990 any federal law that interferes with a religious practice is subject to judicial review under the doctrine of “strict scrutiny,” a test that requires the government to show that it cannot achieve its goal any other way.
(What about ordinary people, not rabbis, who disapprove of gay marriage? For example, the cake baker who does not want to create a wedding cake for a gay couple? That is a discussion for another day, not long from now because there are cases of that kind working their way through the courts. We Jews, as a minority, should be deeply interested in the outcome!)
Religious freedom is today, as it has been since our Revolution, one of our highest and most carefully protected principles. There is no reason for clerics of any sect to be concerned.