As I tweeted earlier today, I’m noticing an interesting split in conservative opinion on the importance of Masterpiece Cakeshop. The religious liberty litigators I talk to tend to be more optimistic about its implications than other conservatives. They know the factual records of their own cases, and they know that the records are often littered with examples of state bias and double standards. Case in point, yesterday the Becket Fund for Religious Liberty filed a reply brief in a lawsuit against Wayne State University citing Masterpiece and calling out an egregious double standard. (Thanks to Ryan Anderson for the tip.)
Wayne State is attempting to derecognize InterVarsity Christian Fellowship because IVCF requires that its leaders adhere to its statement of faith. In other words, a Christian group wants Christian leadership. The university says that’s impermissible discrimination, yet it allegedly allows exclusively male and female leadership for fraternities and sororities, exclusively female leadership for female athletic clubs, and exclusively African-American leaders for African-American clubs. For those keeping score at home, the university is permitting sex and race-based discrimination. In its reply brief, IVCF notes that Masterpiece is directly on-point:
Wayne State’s anti-religious value judgment is explicit. Wayne State insists on maintaining categorical exemptions for large, popular secular groups so that those groups can select both leaders and members based on sex. But Wayne State then insists that it cannot possibly allow religious groups to select religious leaders because, just maybe, one day a religious group (unlike InterVarsity) might “hold as an article of religious faith that their leaders must be . . . male.” Dkt. 21 at 23-24. To Wayne State, actual secular sex discrimination is good while hypothetical religious sex discrimination is evil. But to the Supreme Court, a “rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness.” Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Comm’n, No. 16 111, slip op. 16, 584 U.S. __ (June 4, 2018). Thus, Wayne State “cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.” Id. at 17.
Critics of Masterpiece say that the decision will enable anti-religious discrimination so long as it’s polite. Religious liberty litigators know that’s more easily said than done. Especially in university litigation, if you eliminate the college’s double standards they often have no standards at all. Indeed, the entire point of their so-called nondiscrimination regime is to discriminate against disfavored views. State censors can’t change their bigoted past, and it’s hard to clean up and conceal their true motives in the future — not without harming identity groups they support by imposing on them the same limits they seek for people of faith. For Christians in America’s deep-blue redoubts, legal equality is a dramatic improvement.