Even if discrimination against religious institutions by a private university might violate some law enacted by Congress - a tricky legal question - it would not violate the First Amendment, which is Cruz’s focus. But that’s not a point about the Constitution. If a law school really does discriminate against religious believers, it might be violating one of them. But there are many civil-rights laws, and some of them contain some ambiguities. Interestingly, such laws do not forbid private institutions, including private universities, from discriminating on the basis of religion - in part because religious universities discriminate on religious grounds, and many people believe that they are entitled to do exactly that. Other laws forbid private institutions receiving federal funds from discriminating on the basis of race, color, sex or national origin. Such laws forbid private employers from discriminating on the basis of race, color, religion, sex and national origin. Opening up space for those institutions, allowing them to choose their own paths, is itself a safeguard of freedom.Īt this point, defenders of Cruz's letter might note that various civil-rights laws reject this conclusion. The government is in a unique position to quell political dissent and religious liberty.īy contrast, the sheer number of private institutions, and their extraordinary variety, greatly diminishes the threat to freedom. If a private university decides that it only wants to invite conservative speakers in 2019, to have one-sided discussions about affirmative action, to forbid military recruitment on its campus, or to celebrate Christmas, the Constitution does not stand in its way.įor a long time, conservatives have applauded the fact that the Constitution generally applies only to "state action" (as it is called). If the local grocery store doesn't want to hire anyone who voted for Cruz in a presidential primary, it is perfectly entitled to do that, as far as the Constitution is concerned. To see the point, consider the text of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press." Because the text is aimed at Congress (and, after the Civil War, applied to state governments as well), it does not constrain private institutions. By all accounts, Cruz is an excellent lawyer, and so his error is a genuine puzzle. Every member of the Supreme Court agrees with it there is no division here along ideological lines. The problem with his letter is that the Constitution and its Bill of Rights apply only to public officials - not to the private sector, and not to private universities at all. He’s certainly entitled to object to the new policy. In his view, it is discriminatory to discriminate against them for that reason. In Gerken's words, Yale will not "subsidize employers that discriminate against our own students."Ĭruz's concern is that some religious organizations discriminate on the basis of sexual orientation. The evident goal of the school's new policy is to ensure that Yale does not fund students working for public-interest organizations that discriminate on the basis of race, religion, sex or sexual orientation. Instead, it appears that the policy rose from unconstitutional animus and a specific discriminatory intent. "The First Amendment protects both free speech and the Free Exercise of religion," Cruz wrote, explicitly invoking the nation's founding document. He directed Gerken to preserve and maintain all relevant records, with a view toward the investigation and future litigation. He announced that the Senate Judiciary Committee's subcommittee on the Constitution, which he chairs, is initiating a formal investigation, and warned that as a result of the inquiry, the case might be referred to the Justice Department.
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