Cass Sunstein: Ted Cruz could use a refresher class on the First Amendment

FILE - In this Tuesday, Oct. 16, 2018 file photo, U.S. Sen. Ted Cruz, R-Texas, takes part in a debate for the Texas U.S. Senate with U.S. Rep. Beto O'Rourke, D-Texas, in San Antonio. Cruz and Democratic challenger O’Rourke are of differing minds as to whether demographic shifts have changed Texas enough to send a Democrat to the U.S. Senate. (Tom Reel/San Antonio Express-News via AP, Pool, File)

Has Yale Law School violated the U.S. Constitution? Has it offended the First Amendment?

To respond to those questions, you don't even need to know what Yale is accused of doing. The answers are No and No.

Yet, in a highly publicized letter to Dean Heather Gerken, Sen. Ted Cruz, R-Texas, accused the law school of adopting a new policy that discriminates against Christian organizations on the basis of religion — and is therefore unconstitutional.

Cruz means business. 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. He directed Gerken to preserve and maintain all relevant records, with a view toward the investigation and future litigation.

"The First Amendment protects both free speech and the Free Exercise of religion," Cruz wrote, explicitly invoking the nation's founding document. "Yale's new policy does neither. Instead, it appears that the policy rose from unconstitutional animus and a specific discriminatory intent ..."

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. In Gerken's words, Yale will not "subsidize employers that discriminate against our own students."

Cruz's concern is that some religious organizations discriminate on the basis of sexual orientation. In his view, it is discriminatory to discriminate against them for that reason.

He’s certainly entitled to object to the new policy. 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.

This is an elementary point. Every member of the Supreme Court agrees with it; there is no division here along ideological lines. By all accounts, Cruz is an excellent lawyer, and so his error is a genuine puzzle.

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.

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. 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.

For a long time, conservatives have applauded the fact that the Constitution generally applies only to "state action" (as it is called). They have been right to do so. The government is in a unique position to quell political dissent and religious liberty.

By contrast, the sheer number of private institutions, and their extraordinary variety, greatly diminishes the threat to freedom. Opening up space for those institutions, allowing them to choose their own paths, is itself a safeguard of freedom.

At this point, defenders of Cruz's letter might note that various civil-rights laws reject this conclusion. Such laws forbid private employers from discriminating on the basis of race, color, religion, sex and national origin. Other laws forbid private institutions receiving federal funds from discriminating on the basis of race, color, sex or national origin.

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. But there are many civil-rights laws, and some of them contain some ambiguities.

If a law school really does discriminate against religious believers, it might be violating one of them. But that’s not a point about the Constitution. 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.

It is not too much to expect the chairman of the subcommittee on the Constitution to understand the reach of the Constitution — and to avoid elementary legal mistakes in the context of a threatening letter, written on stationery headed with the still-majestic words, “United States Senate.”

Cass Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”