Federal judge confuses Zionism with “protected religious class status”

In a recent decision, 303 Creative v. Elenis, a three-judge panel of the federal Tenth Circuit Court of Appeals ruled that a web designer could not promote her company’s objection to creating websites for same-sex weddings on (Christian) religious grounds without violating Colorado’s anti-discrimination act, or CADA. (The Tenth Circuit includes Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, plus portions of Yellowstone National Park extending into Montana and Idaho.) Dissenting from the majority opinion, Chief Judge Timothy M. Tymkovich (a George W. Bush appointee and one of former President Trump’s short list of Supreme Court candidates) claimed that the Colorado law was “Orwellian” because, by not providing a religious exemption that would allow the web designer to categorically refuse customers who wanted her to create websites for same-sex weddings and to promote that categorical refusal, CADA forced her to “create expressive content that violates her sincerely held beliefs.” Chief Judge Tymkovich speculated that, under the majority’s “expansive view” of anti-discrimination law,

the State could wield CADA as a sword, forcing an unwilling Muslim movie director to make a film with a Zionist message or requiring an atheist muralist to accept a commission celebrating Evangelical zeal. After all, the Muslim director would make films and the atheist muralist would paint murals for the general public with other messages. (Emphasis added.)

Chief Judge Tymkovich would return to Zionism as metaphor in a footnote later in the dissent, claiming that Colorado impermissibly interprets conscience- or message-based objections to CADA’s anti-discrimination provisions differently depending on the protected class of the objector and to the detriment of (conservative) Christians, for example by declining to enforce CADA against secular bakers who refused to create custom wedding cakes with messages opposed to same-sex marriage on one hand while enforcing CADA against the Christian baker who refused to create custom cakes for same-sex weddings on the other hand.

Or imagine a Muslim muralist, contacted by a Jewish restaurant owner requesting a depiction of the Israeli flag with a Zionist message. The Muslim muralist might refuse to paint such a message—but the message is undeniably intertwined with the Jewish restaurant owner’s protected religious class status. (Emphases added.)

Chief Judge Tymkovich’s repeated references to “Zionist” messages, which he opposes to the beliefs or opinions held by “Muslims” broadly, are curious. Both hypotheticals use “Zionism” to mean something other than what the word actually means (Jewish nationalism) and confuse rather than clarify the dissent’s argument. 

Zionism is not Judaism. An Israeli flag with a Zionist message may be “intertwined” with the Jewish restaurant owner’s religion, but it is intertwined as political expression (as Jewish nationalism), not as religious expression (as Jewish observance, belief, or practice). Religion is a protected class under CADA; political affiliation is not. Accordingly, the hypothetical Muslim muralist’s refusal to paint a mural based solely on the mural’s Zionist message would not violate CADA not because “message-based refusals” on religious grounds are exempt from CADA’s requirements, but because a refusal to paint a mural with a Zionist message is not a message-based refusal on religious grounds. 

The fact that both the hypothetical muralist and film director are described as “Muslim” rather than “Palestinian,” to take the most obvious example, is further misleading (not all Palestinians are Muslim), as it frames their presumed objections to Zionism in terms of religious differences (Jews vs. Muslims) rather than political or ideological differences (for example, anticolonial opposition to Zionism).

Moreover, by confusing Zionism with Judaism and concluding that Zionism is “undeniably” connected to a “protected religious class status” under CADA, the dissent would protect from discriminatory treatment an ideology premised on discriminatory treatment. Among its other provisions, CADA makes unlawful the refusal, withholding from, or denial of the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations to an individual or group because of race, creed, color, national origin or ancestry. Zionism (Jewish nationalism) promotes Jewish supremacy and the refusal, withholding from, or denial of full and equal rights and privileges to Palestinian and other non-Jewish citizens (or permanent residents or “present absentees”) of Israel and the Occupied Palestinian Territories. Indeed, Israel’s 2018 Nation-State Law expressly states that the “right to exercise national self-determination in the State of Israel is unique to the Jewish people” and no one else and that the “development of Jewish settlement” is a “national value,” thus “legitimizing exclusion, racism, and systemic inequality” with the force of constitutional law. In effect, the Nation-State Law is CADA in reverse.

To be clear, 303 Creative is not a case about Zionism. Because the two references by analogy to Zionism occur only in the dissent and not in the majority opinion, they do not even qualify as dicta. Nonetheless, that they occur at all is worth noting. The cultural politics of Zionism and/or Israel may be anathema among the left and divisive among Democratic voters (albeit not Democratic donors) but it is red meat for religious conservative Republican voters, who include not only Christian Zionists but Orthodox Jews in increasing numbers. Understood in this context, the dissent’s seemingly gratuitous references to Zionism are not gratuitous at all but are dog whistles for religious conservatives who closely follow how the federal courts decide so-called “religious freedom” (i.e. freedom from anti-discrimination laws) cases. 303 Creative is a major “religious freedom” case that could end up before the United States Supreme Court eventually, where Chief Judge Tymkovich’s dissent could become the majority opinion.

Whether or not it is factually accurate, legally relevant, or even logically coherent, the 303 Creative dissent’s understanding of Zionism (i.e. that it is “undeniably intertwined” with “protected religious class status”) could, given the facts of a particular case assigned to a particular panel of federal judges, become law eventually as well, in effect making Zionism Judaism and anti-Zionism unlawful antisemitism for millions of Americans—which would be truly “Orwellian.”