What comes next for religious liberty, after the Masterpiece Cakeshop decision?

What comes next for religious liberty, after the Masterpiece Cakeshop decision?

The Pulitzer Prize winning "Angels in America" has long been a touchstone for gay spirituality, so it wasn't surprising that actor Andrew Garfield celebrated winning a Tony Award in the play's revival with remarks mixing faith and politics.

It's crucial, he said, to celebrate the play's "spirit that says 'no' to oppression. It is a spirit that says 'no' to bigotry. … It is a spirit that says we are all made perfectly."

Garfield concluded: "We are all sacred. … So let's just bake a cake for everyone who wants a cake to be baked!"

The baker behind the U.S. Supreme Court's recent Masterpiece Cakeshop decision has heard pronouncements of this kind many times since that fateful day in 2012 when he declined to create one of his handcrafted, personalized cakes to celebrate the same-sex marriage of Charlie Craig and David Mullins.

"The biggest myth I hear all the time, pretty much, is that I turned away a gay couple. But the truth is, I never turn away any customers. I do, sometimes, have to decline to create cakes that violate my faith, and that was the case here," said Phillips, in a Lutheran Public Radio interview soon after the June 4 decision.

"The two gentlemen that sued me were welcome in my shop that day. I told them, I'll sell you cookies, brownies, birthday cakes, anything else, custom cakes -- it's just that I can't create this one, because this was a cake that goes against the core of my faith."

While this was a 7-2 ruling, Justice Anthony Kennedy's majority opinion (.pdf) focused on evidence that the Colorado Civil Rights Commission had demonstrated open hostility to Phillips and his Christian faith. Thus, he avoided a broader ruling on First Amendment protections of free speech and the "free exercise" of religion.

Naturally, church-state activists have argued about the significance of this much-anticipated decision. At least four camps have emerged so far.

The new campus orthodoxy that forbids most old orthodoxies

At first, Vanderbilt University's new credo sounded like lofty academic lingo from the pluralistic world of higher education, not the stuff of nationwide debates about religious liberty.

Leaders of Vanderbilt student groups were told they must not discriminate on the basis of "race, sex, religion, color, national or ethnic origin, age, disability, military service, or genetic information. ... In addition, the University does not discriminate against individuals on the basis of their sexual orientation, gender identity, or gender expression."

The bottom line: this "all-comers policy" forbad campus-recognized student groups from requiring their leaders to affirm the very doctrines and policies that defined them as faith-based, voluntary associations in the first place.

This private university in Nashville -- which once had Methodist ties -- affirmed that creeds where acceptable, except when used as creeds. Orthodoxy was OK, except when it conflicted with the new campus orthodoxy that, in practice, banned selected orthodoxies.

Free speech movement, for believers on campus

It took a few minutes for leaders of the Bisexual, Gay & Lesbian Alliance at Rutgers University to realize something was wrong at their back-to-school meeting.

The hall was full of unfamiliar students wanting to become members. Most were carrying Bibles with markers in the first chapter of St. Paul's Epistle to the Romans. They also had copies of the campus policy forbidding discrimination on the basis of "race, religion, color, national origin, ancestry, age, sex, sexual orientation, disability, marital or veteran status."

Truth is, this scene hasn't happened at Rutgers or anywhere else -- so far.

What if it did?

What if conservative Christians tried to rush a gay-rights group and elect new leaders? What if, when told they couldn't join because they rejected its core beliefs, evangelicals cited cases in which Christian groups were punished for refusing leadership roles to homosexuals? What if, when jeered by angry homosexuals, evangelicals called this verbal violence rooted in religious bigotry and, thus, harassment?

"No, no, no. I have never heard of a case in which conservative Catholics, Protestants or Jews tried to turn the tables in this fashion," said historian Alan Charles Kors, president of the Philadelphia-based Foundation for Individual Rights in Education (FIRE)

"That would never happen. There is an inherent meekness ... among students of faith on all these campuses. It's so ironic that people call them intolerant and offensive. Most of these religious students are among the last people who would ever go where they are not wanted. All they want is to be free to express their beliefs."

But there have been a growing number of cases in which traditional religious groups have been attacked because their "intolerant" beliefs and policies offend modern academia. Almost all of these cases are collisions between ancient moral doctrines and campus policies that defend and promote the Sexual Revolution.

The bottom line, according to recent FIRE legal guides, is that almost all campus policies that inhibit religious practices also inhibit the constitutional rights of free speech, association and assembly. Public colleges and universities are not supposed to make doctrinal decisions that deny privileges to some religious groups that are then extended to other secular or religious groups.

Yet that is what is happening.

"Religious liberty is now center stage in the battle for freedom on campus," according to David French, a Harvard Law School graduate who wrote the manual covering disputes over faith issues. "Religious students are particularly convenient targets. After all, they think and behave in ways that many other students don't understand; they tend to be small minorities on most campuses; and -- by religious conviction -- they often resist even the most heavy-handed repression."

For all of their talk about "diversity" and "tolerance," French is convinced many academic leaders think that "the fewer 'fanatics' -- of the 'wrong' kind -- the better."

While these campus disputes are often described in terms of "left" and "right," the FIRE project ( has been endorsed by a diverse coalition of activists ranging from Edwin Meese III, attorney general in the Reagan administration, to American Civil Liberties Union President Nadine Strossen.

The key is that academic leaders must be honest, said French. Leaders at state schools are quickly learning that their work is covered by explicit laws that ban any "viewpoint discrimination" that blesses some believers and curses others. Religious schools, meanwhile, are allowed to require particular beliefs and practices -- mandatory chapel, moral codes, doctrinal statements for faculty -- if these rules are clearly stated in writing.

Right now, the toughest battles are at some of America's most prestigious private colleges and universities. These secular schools once encouraged fierce debates and proudly tolerated dissent. But now, it seems that some worldviews are created more equal than others.

Many religious believers do not discover this reality until they arrive on campus and receive copies of the all-powerful student handbook.

"Students must be told the truth," said French. "They should not be duped into believing that they have enrolled in a school that respects their beliefs and their freedom to express viewpoints that are out of the so-called mainstream. These secular schools must be more honest in their recruiting materials and catalogues. This is a truth in advertising issue."