Free democracies are based on the fine art of balancing liberties and restrictions – that is, striving to preserve every citizen’s intrinsic freedoms. But sometimes, the freedom of one individual may infringe on the rights of another. How should a liberal democracy resolve such situations? When liberties and restrictions collide, how should the two be balanced?
In an article published in Chosen to Follow, lawyer Michael Decker writes that Messianic Jews “face religious intolerance, discrimination, and flagrant harassment in all facets of [the Israeli] society.” Decker further describes the main contributor of such maltreatment: “While most of Israeli society is relatively tolerant of Messianic Jews, opposition and hostility arise from the ultra-religious sectors which attempt to create public hysteria and fear through disseminating anti-Messianic propaganda full of misinformation, rhetoric, and baseless accusations.”
At Caspari Center’s recent open lecture, Decker described a legal case in which, interestingly, it is not the “ultra-religious sectors” that threaten the rights of Messianic Jews, but rather the ultra-liberal sectors of society. In this case, Yad Hashmona, a moshav which runs a guest house and events hall whose owners are Messianic Jews, refused to rent their facilities to a couple planning to celebrate a same-sex wedding. It was against the organization’s core values, the owners argued. The couple sued Yad Hashmona – and the defendant was required to pay NIS 75,000 as compensation to the plaintiffs, on the grounds of discrimination and sexual harassment.
Democratic dilemmas dwell at the core of the Yad Hashmona case – what should liberal democracies value more highly: the freedom of religious expression, or the freedom to openly express ones sexual orientation? In this case the freedom of expressing ones sexual orientation collides with religious freedoms. Should the members of a religious minority then, who are running a public business, which in principle is open to all, still be entitled to run their business according to their beliefs?
The argument presented by Decker, citing a similar case in Canadian courts, the Brookie Ruling, is that there should be some room for individuals running public businesses to withhold certain services that would go against their core religious beliefs. The Canadian court ruled that “there can be no appropriate balance if the protection of one right means the disregard of the other.” In other words, if the right of free sexual orientation in some cases completely overrules the right to free religious expression, there exists no freedom of religion. There must be some sort of balance; without, at the very least, a consideration of this balance, there is no proper freedom of religion, and the liberal state’s nature as democracy – which implies room for a plurality of opinions and religious beliefs – is left highly questionable.
We have been asking ourselves one question after another. Yet we are still left with another handful of questions: is it illegal discrimination and harassment to neutrally reject a business proposal based one’s religious beliefs? Or is it a legal manifestation of a religious belief? Are the plaintiffs utilizing the legislation to force the defendant to embrace their sexual preferences, even when this contradicts the core values of the defendant? Should not defendants be entitled to reject such an infringement of their freedom of religion? Has the court, in its decision, been able to sufficiently consider the balance of rights and freedoms of both parties?
Only time will tell whether the appeal court will change the verdict or not. The final ruling will affect the way Israeli society realtes to the issue of freedom of religion. And the verdict will furthermore have a significant impact on the ability of religious minorities – Messianic Jews in particular – to run their public businesses.