Ted Cruz's First Amendment Defense Act Is Bunk and He Knows It

There’s this thing called the Dunning-Kruger effect that I have come to fall in love with. Basically, it’s the official clinical name of the common wisdom principle of “too dumb to know they’re dumb.” I’ve learned to sit down and shut up at least some of the time; I’m not going to argue with Neil DeGrasse Tyson about black holes or Paul Krugman on Keynesian economics. However, there are times when I have to stop and say, “OK, you’re full of crap,” to some normally well-educated, successful people, who can be jaw-droppingly dumb or even insane. That’s the fun part of Dunning-Kruger effect — everyone gets a chance in the idiot box.

This time around it’s world champion Grandpa Munster impersonator Ted Cruz. Cruz has decided that he will reintroduce the First Amendment Defense Act, a bill that got just one hearing the last time around. This bill says the federal government cannot take action against a person who acts in accordance with a religious belief or moral conviction that marriage should be only between a man and a woman, and that only married people can have sex. Or, even more simply, “My religion says I can act like a jackass to you, and you can’t do squat.” Now, Ted Cruz graduated magna cum laude from Harvard Law School, which is impressive, and I should note that President Obama did the same. Now, having said that, the fact that they’re brilliant lawyers doesn’t mean they’re experts on everything, and from what I can tell, Cruz apparently sucks at the First Amendment’s Establishment Clause and doesn’t know it. That’s the part that says the government cannot elevate one religion over another or restrict the exercise of religion.

What’s kinda tricky if you’re completely new to this it that the Establishment Clause can conflict with the Free Exercise Clause; the government cannot restrict the exercise of religion but at the same time not favor a particular religion in allowing it to work against the public good. Yeah, a bit tricky if you’re new to it, but not if you’re a top-tier Harvard Law grad. In this case, since the bill is clearly designed to allow businesses to discriminate on a religious basis, there’s no way it would ever pass muster with the Establishment Clause.

Now, one could say, "But what about Hobby Lobby?" Well that’s where it gets real tricky, because the Supreme Court's Hobby Lobby ruling — which allowed the craft chain to reject a federal mandate that it cover contraception for employees — isn’t viewed as discrimination but as a statement of moral objection to a behavior. However, when you outright refuse to provide service to an entire class of people, that’s when you have a problem. You see, you choose to open a business, that means you now exist under the good graces of the government, which gets to regulate you since a business is a public accommodation. Now, because a business, even though it can be privately owned, is part of the public sphere, it means that under the law it has to treat people equally. Pretty meta, right? No one forced you to open that business, which means that you can’t suddenly cry foul about something being forced on you when you have opened yourself up to the public. (Another tricky part is that if you’re a private group, you can kind of make up your own rules; that’s how the Boy Scouts could discriminate). In the most basic sense, you gave up your right to object the minute you put yourself out there. As a Harvard Law grad, you would think Ted Cruz would know this, but clearly, he doesn’t have a clue.

Cruz might have been selected as one of the best young litigators under 45 at one point, and has even argued personally before the Supreme Court nine times, which is pretty impressive. I mean, he is a good lawyer — when it comes to promoting guns, election laws, and immigration crackdowns, but clearly, he doesn’t seem to understand how the Establishment Clause works. The ability for a business to pick and choose which religious principles it wants to live by has been smacked down in court case after court case for almost the entire history of the United States. The minute the government allows one particular set of religious principles to take precedence over the public good, the First Amendment is meaningless. The government knows this and has sided time and again against allowing even the smallest favoritism toward one faith over another.

Despite the fears of many LGBT Americans, even some of the most strident conservatives working within the legal system see this as a bridge too far, and the types of people who push these laws are often of a particular, um, persuasion. OK, they’re religious zealots or hypocrites who charge huge legal fees to push these cases. This means that Ted Cruz can only be one of three things: a religious zealot who has gone off the deep end, a hypocrite who is pandering for fame and power, or someone who is honestly out of his depth as a lawyer and doesn’t know it. And I think before I say which I think it is, I’ll stop, since I know what I don’t know sometimes.

AMANDA KERRI is a writer and comedian based in Oklahoma City. Follow her on Twitter @EternalKerri.