When I ran for Assembly in the year 2012, there were some in the Orthodox community who would not support me despite my staunchly aligned policy stances on practically everything that our community believes in, because I would not come out against gay marriage. The right wing of the Orthodox community was strongly empowered by the win of Bob Turner over David Weprin in 2011 for Anthony Weiner’s Congressional seat. Bob Turner, a Republican, had stood up against gay marriage and a big turnout of the Orthodox in Brooklyn and Queens for Turner, secured him a victory. Despite the fact that the Marriage-Equlity Act was enacted earlier that year, many against gay marriage were hoping that it would be defeated. When I ran a year later I knew that gay marriage was here to stay and quite frankly, I was never against it to begin with.
If I were to ever run again, this public admission could detract from some support but it’s important for me to discuss this because I feel that when we don’t violate other people’s rights then society is more inclined to protect ours. Incidentally, I’ve exchanged views on this matter with a number of Torah-learned men and inevitably the argument against gay marriage is two fold; 1) gay marriage is a moral debasement of the institution of marriage and 2) that gay marriage laws will eventually encroach on Torah observance. To the first - I say that eating shell fish is also an “abomination” in the Torah text and in the mind of many, yet we don’t lobby government to shut down shell fish restaurants in the United States. To the second, I have said, that the first amendment - freedom of religion - is our protection. Indeed there is a Federal law by the name of “Religious Freedom Restoration Act", known as RFRA, which was passed by Chuck Schumer and Ted Kennedy in 1993 which “ensures that interests in religious freedom are protected".
Because the Act was later challenged - that it shouldn’t apply to state law, the Federal RFRA was confined to Federal government. Subsequently, the states, 20 at this point, have adopted similar legislation to be applied within their jurisdictions. Indiana, most notably, just enacted their version of RFRA which differs from the Federal one in that Indiana’s law was extended to for-profit establishments against a private entity. In reaction to Indiana’s law, major corporations, sports enterprises along with other state governments, NY among them, have threatened to boycott the state. Arkansas which was about to enact similar legislation is similarly being opposed by the Liberal establishment not to go through with their version.
So is religious protection in our country endangered? Left to the Liberal establishment the answer would most certainly be yes. The Left has no respect for constitutional rights in general. However, we musn’t panic that we are on the brink of becoming a banana republic yet. The truth is that the ‘fix’ that Rick Pense, the governor of Indiana, wants to institute is that Indiana’s RFRA would not allow to discriminate against individuals, namely of a protected class and that would be the exception. Otherwise, the law still protects religious interests.
A religious or private club is still allowed to be selective as to the composition of its membership and the types of practices it conducts. A private golf club, for example, is still allowed by law to exclude certain populations by gender or ethnicity and a religious orgaization is allowed to perform marriage ceremonies only to those under its creed. However, under the expanded boundary of RFRA, even before the ‘fixes’, there would still be very narrow conditions for which a claim of an “exercise of religion has been substantially burdened” would be valid because any such claim would have to weather a true test of religious infringement. For instance, if a religious baker claimed that he is not allowed to prepare a cake for a gay couples’ wedding, such baker would have to demonstrate in court that by preparing that cake he in fact is violating his religion. Such a test would involve citing chapter and verse which forbids it.
It’s fair to say that there could be any number of reasons why a merchant would be entitled to refuse to provide a product or service to a customer. So sticking with the baker example, a cake purchase order could be offensive such as asking for a drawing of an shockingly attired bride and groom, asking for a drawing of a couple with a swastika or asking that a defiled Muhammad or Moses stand by the couple. There is reasonable consensus that said baker does not have to oblige such customers.
On the other hand philosophical or religious objections such as for some, a drawing of a same sex marriage couple or of drawings of symbols of another religion, which are not expressly forbidden according to one’s own religion, is the grey area and should not have to be fulfilled unless it involves a protected class. That’s why adding gays as a protected class would be the fix to Indiana’s RFRA. Incidentally, I asked Rabbi Yoel Schonfeld what he feels the halacha is for a Jewish baker to bake a same-sex wedding cake for a fellow Jew and he answered that as long as the baker didn’t write on it “mazel tov to Bob and Steve” it should be ok. I surmise that the reasoning is that as long as there is not an express encouragement from the religious Jewish baker then it is not expressly forbidden.
I think the moral of the story is - that as long as we can be tolerant of others we should be but if we are asked to expressly violate our religion then we must demand protection from our constitution in order to protect our religious freedom. Such should be the model of the observant Jew in the modern age.