How a Supreme Court case about a gay couple's wedding cake got caught up in Israeli judicial reform

WASHINGTON – Before Israel paused work this week on a controversial judicial overhaul plan that sparked a crisis in that country, a 5-year-old U.S. Supreme Court dispute between a Colorado baker and a gay couple made an appearance as a key talking point for far-right allies of Prime Minister Benjamin Netanyahu.      

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was held up by several Israeli politicians who support giving businesses more power to deny LGBTQ customers – even though the 2018 ruling was more narrow than sometimes portrayed. In the U.S., the Masterpiece case is one of several in which conservative groups have sought to expand the right of religious freedom guaranteed in the First Amendment.   

For now, the plan to weaken Israel's top court is on hold until at least the end of April, prompting cheers from LGBTQ advocates who turned out in high numbers to protest Netanyahu's overhaul proposal. Those advocates feared that a less independent judiciary would be more likely to uphold proposals to curb LGBTQ rights in Israel. 

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"It's very clear that the LGBTQ community was one of the most dominant communities that led this demonstration," said Amir Fuchs, a senior researcher with the Israel Democracy Institute in Jerusalem. "The pride flag ... was very dominant."

How the Masterpiece Cakeshop decision came up in the Israeli crisis 

• Some Israeli politicians allied with Netanyahu held up the U.S. Supreme Court's 2018 decision on religious freedom and LGBTQ rights to justify proposals that would make it easier for Israeli businesses to turn away LGBTQ customers.  
• Those proposals ultimately did not materialize, and they are less likely to become reality now that the broader judicial reform effort has been placed on hold. 
• The U.S. Supreme Court's decision in Masterpiece Cakeshop dealt with a baker who declined to make a custom wedding cake for a same-sex couple. The Supreme Court sided with Phillips, but in a narrow way that dodged the more fundamental questions of what happens when LGBTQ rights conflict with religious beliefs. The fight over those fundamental questions has continued in the United States.  

Some Israelis pointed to U.S. Supreme Court decision on LGBTQ rights   

As Netanyahu hammered out a power-sharing agreement last year to reclaim the prime minister's chair, he turned to a number of far-right parties – alarming LGBTQ advocates. Some of those allies wanted to push for legislation that would give business owners more power to turn away customers if serving them violates their religious beliefs.

In explaining the proposal, some Israeli politicians held up the 2018 ruling in Masterpiece to suggest their proposal was similar to what was already in place in the United States. In fact, the Supreme Court's ruling in Masterpiece was far more limited than some of the law's proponents have suggested, even as the conservative majority on the court has looked favorably on religious claims.   

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"We also will work to guarantee that religious believers aren't punished by the government for standing by their beliefs," Bezalel Smotrich, Israel's finance minister, wrote in the Wall Street Journal late last year. "This is no different from the rights the U.S. Supreme Court recently affirmed in its Masterpiece Cakeshop decision."

Simcha Rothman, a member of the Knesset, Israel's parliament, and an architect of the judicial overhaul, told Jewish News in January that the "idea behind the law is Cake Master vs. Colorado, and to try and legislate something similar in Israel."

What the Supreme Court ruled in the Masterpiece Cakeshop opinion  

A divided Supreme Court in 2018 sided with a Colorado baker who refused to make a custom wedding cake for a same-sex couple. But the decision wasn't the victory for religious freedom that some Israeli politicians have claimed it to be. Nor did it decide the question of when businesses in the USA many deny customers on religious grounds.  

In fact, similar disputes continue to be litigated since the Supreme Court legalized same-sex marriage in a landmark 2015 decision.

In the 7-2 opinion, the court's majority focused on what it described as "hostility" directed at the baker, Jack Phillips, by members of the state's civil rights commission in its review of the case. The commission, the court said, failed to review the case with "the religious neutrality that the Constitution requires." But the justices dodged the question of what to do when anti-discrimination laws come up against claims of religious freedom. 

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Since then, similar lawsuits have been filed against or by other wedding vendors opposed to same-sex marriage, including florists and photographers. Meanwhile, the Supreme Court has repeatedly sided with claims filed by religious entities.

Later this year, the court is expected to decide a similar question related to the one raised by the Masterpiece case: whether a graphic designer may decline to make websites for same-sex marriages. The designer asserts that Colorado's anti-discrimination law forces her to create the websites – and to condone a message approving of same-sex marriages – against her will, which would violate the First Amendment's prohibition on compelled speech.  

Contributing: Jotam Confino in Tel Aviv