by Ted Cruz
Nevertheless, the Obama administration’s legal position continued to be that these intrepid nuns should be forced to indirectly subsidize contraception and abortifacients that directly violated their sincerely held religious beliefs.
The legal issues pertaining to Obamacare’s “contraceptive mandate” first made it to the Supreme Court in the 2014 Burwell v. Hobby Lobby Stores case. This was a similar case in which Hobby Lobby, a privately held corporation owned by evangelical Christians, raised religious objections over being forced to pay for abortion-inducing drugs. By a vote of 5–4, the Supreme Court upheld Hobby Lobby’s religious liberty rights, ensuring that the owners of that company could continue to live according to the dictates of their faith.
The Little Sisters’ case was held at the Court pending the resolution of the Hobby Lobby case and, ultimately, the litigation against the Sisters was—thankfully—settled by the Trump administration.
When the Supreme Court decided Hobby Lobby, it did so not on constitutional grounds, but on statutory grounds. The Court ruled in Hobby Lobby’s favor on the grounds of the Religious Freedom Restoration Act, or “RFRA,” a 1993 piece of federal legislation.
RFRA was passed in direct response to the largely unpopular 1990 Supreme Court case of Employment Division v. Smith, which had held that enforcing neutral laws of general applicability does not violate your constitutional right to religious liberty. At the time that RFRA was enacted into law, it passed by a whopping 97–3 margin in the Senate and in the House by a unanimous voice vote. In the Senate, such liberal stalwarts as Ted Kennedy and Chuck Schumer voted in favor of RFRA. It was signed into law by Democratic president Bill Clinton.
Just three decades ago, in Congress at least, religious liberty was a bipartisan commitment. Democrats and Republican disagreed on issues of taxes, spending, and so many other policy areas. But when it came to protecting the rights of believers to live according to the dictates of their faith, whatever that faith might be, we saw widespread, bipartisan agreement in Washington.
In the wake of the Hobby Lobby decision, however, that bipartisan agreement crumbled. Today’s Democratic Party has sadly become radicalized on questions of religious liberty, as evidenced by the 2020 Democratic debates, which featured Beto O’Rourke—my erstwhile opponent in the 2018 U.S. Senate race in Texas—saying that he would strip churches and synagogues of their tax-exempt status and forcibly regulate religious institutions.
Beto O’Rourke, of course, has since endorsed and been embraced by Joe Biden. And Biden has since praised O’Rourke as an up-and-coming star in the modern Democratic Party who would play a leading role in a Biden administration.
The radicalization of the Democratic Party was also manifest in legislation that Senate Democrats introduced in the immediate aftermath of Hobby Lobby, which would have gutted RFRA. It would have dramatically weakened that statutory protection for faith that had passed Congress overwhelmingly.
I spoke vigorously against that legislation on the Senate floor, citing multiple Democratic presidents and flanked by a picture of no less a Democratic presidential stalwart than John F. Kennedy:
The bill that is being voted on this floor, if it were adopted, would fine the Little Sisters of the Poor millions of dollars unless these Catholic nuns are willing to pay for abortion-producing drugs for others.
Mr. President, when did the Democratic Party declare war on the Catholic Church?
Let me make a basic suggestion. If you’re litigating against nuns, you have probably done something wrong, and the Obama administration is doing so right now. Mr. President, drop your faith fines. Mr. Majority Leader [Harry Reid], drop your faith fines. To all of my Democratic colleagues, drop your faith fines. Get back to the shared values that stitch all of us together as Americans.
President John F. Kennedy, in an historic speech to the nation, said—quote—“I would not look with favor upon a president working to subvert the First Amendment’s guarantees of religious liberty.”
Mr. President, where are the Kennedys today? Does any Democrat have the courage to stand up and speak for the First Amendment today? Does any Democrat have the courage to stand up and speak for the constitutional rights of practicing Catholics? Does any Democrat have the courage to stand up and speak for the Little Sisters of the Poor? Do any Democrats have the courage to listen to the Catholic Conference of Bishops and speak for religious liberty? Mr. President, it saddens me that there are not 100 senators here unified, regardless of our faith, standing together protecting the religious liberty rights of everyone.
Sadly, protecting religious liberty got zero Democratic votes. Instead, every single Democrat in the U.S. Senate voted to nullify the Religious Freedom Restoration Act. I was heartbroken to see it, and it augers dangerous times to come.
And, in the summer of 2020, Joe Biden pledged that, if elected, he would resume the Obama administration’s ongoing persecution of the Little Sisters of the Poor.
When it comes to Democratic judicial nominations, we can expect their nominees to reflect their current hostility to faith. And, on the Supreme Court, as we’ve seen, they’re just one vote away.
CHAPTER 2 SCHOOL CHOICE AND ZELMAN V. SIMMONS-HARRIS
Religious liberty and civil rights intersect in the fight for school choice in America.
I believe that school choice is the defining civil rights struggle of our time. To be sure, public education in America is actually older than America itself. By the time the Declaration of Independence was written in 1776, at least five public high schools existed. The oldest school, and one which still stands today, is The Boston Latin School in Massachusetts. In the first half of the nineteenth century, Horace Mann served as a national trailblazer for education reform. And by the time the Fourteenth Amendment was ratified in 1868, public education was ubiquitous throughout America.
There are countless outstanding public schools in America today. These are the public schools that have talented and committed teachers, that develop well-rounded curricula across academic disciplines, and prepare students for successful careers—whether that means college, graduate school, trade school, or direct entrance into the workforce. The teachers and administrators at these schools deserve praise, support, and our gratitude.
But not every child has access to an excellent education. Sadly, the caliber and quality of public education in America varies dramatically from school to school. Far too often, it is the public schools in the more affluent, suburban neighborhoods that are most able to attract and retain dedicated teachers who are skilled in pedagogy and deeply committed to the success of their students. Conversely, far too often, it is the public schools in the poorer, struggling neighborhoods of America that have difficulty attracting and retaining qualified teachers and enforcing discipline and high academic standards.
For too many low-income children, especially inner-city African-American and Hispanic children, their public-school options are severely limited. Kids unable to get a decent education see their prospects for future success dramatically limited. Education is, in most circumstances, the gateway to the American dream. It certainly was in my family when my mom became the first in her family to go to college and when my dad came from Cuba with nothing. For both, education opened the door for them to experience the promise of America.
I support school choice across the board. Scholarships, vouchers, charter schools, tax credits—all of the above: whatever gives parents and children the maximum choice for their own education and their own future.
Education is antecedent to most of our other public policy concerns. From poverty to crime to healthcare to substance abuse, if kids don’t get an education, we know that those other challenges are far more likely to follow; conversely, if children do get an excellent education, each of those problems is much more likely to be overcome.
It is a damning stain on America’s conscience that a child’s chances of life success are so heavily influenced by—perhaps dictated by—the zip code in which he o
r she is raised. It is a profound civil-rights crisis, about which every single American of every political or partisan stripe should be on the same page. Whether one is a conservative or a liberal, or a Republican or a Democrat ought not matter in the slightest when it comes to the urgent need to secure access to a quality education—and access to educational choice, in particular—for every young American.
Yet today’s Democratic Party is passionately opposed to school choice. The reasons are simple: teachers unions massively fund the Democratic Party and provide many of its hardest working foot soldiers. As a result, very few Democratic politicians are willing to give up the millions of dollars that flow from union support.
In a just world, teachers unions would enthusiastically support school choice. After all, the vast majority of teachers go into education because they want to help children, and teachers see firsthand the maddening bureaucracy, red tape, and barriers to quality teaching that today’s system often creates. But the union bosses who lead the teachers unions have decided that school choice is an existential threat to their power, and so they demand partisan fealty above all.
I became active in the school-choice movement twenty-five years ago. When I had just finished my clerkship at the Court, the Federalist Society (a national organization of conservative and libertarian students, lawyers, professors, and judges) asked me to serve as the first-ever chairman of their school choice and education reform committee. I agreed, but with one caveat: although I was passionate on the issue, I didn’t yet have a demonstrated record, so I told them I needed a co-chair. I signed on alongside my friend Nicole Garnett, who was then a lawyer for the Institute for Justice, a libertarian non-profit law firm that was litigating many of the school-choice cases across the country.
Nicole and I became the first two co-chairs, and then, when she went to be a law clerk for Justice Clarence Thomas, she stepped down and was replaced by her husband Rick Garnett, who had been my co-clerk with the Chief. Both Nicole and Rick are amazing, and today they’re both law professors at Notre Dame.
In the late 90s, we hosted a national school-choice conference in Ohio, which was ground zero for school-choice battles at the time. We brought in conservatives and even some liberals to consider and debate the key issues of choice.
Shortly thereafter, I was invited to speak to the national convention of the ACLU. You read that right. In 1999, long before I had been elected to anything, the ACLU asked me to participate in an hour-and-a-half-long one-on-one debate on school choice before their national convention in San Diego. My opponent was liberal columnist Juan Williams, and the supposed “neutral” moderator was Barry Lynn, head of Americans United for Separation of Church and State.
It remains the most hostile audience I’ve ever addressed. But, I hope, in the course of the debate, at least some of the arguments I presented made them think. The one argument that seemed to resonate even slightly was the following: “The ACLU has a long and venerable history of standing up to paternalism, to government making decisions for you the individual. Survey after survey of African-American and Hispanic parents show overwhelming support—60 percent, 70 percent, or more—for school choice. Why do you, the ACLU, feel so comfortable substituting your own paternalistic view for their own view of what’s best for their children?”
In the 90s, the main policy argument against choice was that allowing some students to receive scholarships to private schools would destroy the public schools. At the time, choice programs were nascent, so that argument had theoretical plausibility. And, had it been true, it would have been a compelling reason to oppose choice; the public schools are and will remain the backbone of our education system for the vast majority of children.
But now, as dozens of jurisdictions across the country have implemented various forms of school choice, we know three facts empirically: (1) Kids and parents in failing schools desperately want out, as choice programs are regularly over-subscribed by large margins. (2) Kids who exercise choice predictably do better, achieving better reading and math scores and much better rates of college admission. And (3) the data demonstrate conclusively that not only does choice not harm the public schools, it actually helps the public schools because the competition improves the quality of education for the kids who stay in the public school.
This third point is foundational. Before I was Texas solicitor general, from 2001–03 in the Bush administration, I was the head of policy planning at the Federal Trade Commission. The FTC’s statutory mission is to protect consumers and to promote competition. Roughly seventy-five Ph.D. economists work at the FTC, and I asked two of them to study in depth the impact of competition on education. In particular, I asked them to take seriously the argument that school choice harms public schools and to examine the data. They framed the question more generally, as economists are wont to do: “What is the impact on a regulated monopoly when competition is introduced, and, specifically, what is the impact on quality for those who remain with the incumbent providers?”
They published the results in a formal FTC report. First, they looked to several other industries, previously oligopolies, where competition had been introduced: surface freight transportation, telecommunications, and air transportation. Not surprisingly, their empirical examination found that competition was good; in all three, quality increased for those customers who never switched to the new providers.
Then, they examined every empirical study that had been done on school-choice programs. The data from those were entirely consistent: when students trapped in failing schools are given options, it helps those students and, overall, it helps the public schools.
As of today, EdChoice, a leading national school-choice advocacy organization, observed the following: “Of the 26 studies that examine the competitive effects of school choice programs on public schools, 24 found positive effects, one saw no visible effect and one found some negative effects for some kids.”
And for many children, whether at Jewish day schools or Catholic parochial schools or small Christian schools like my alma mater, Second Baptist High School in Houston—or homeschooling, for those parents able to commit the time required—school can also help nurture an important faith component in their lives. That is a choice for parents to make, a fundamental and precious liberty.
Sadly, parental rights frighten those who want government to have total control over what children are allowed to learn. A recent article in Harvard Magazine entitled “The Risks of Homeschooling” demonstrates just how extreme this elitist condescension can get. It quotes Harvard Law School professor Elizabeth Bartholet arguing for banning homeschooling because she “thinks [it’s] dangerous” for parents to “have 24/7, essentially authoritarian control over their children from ages zero to 18.” According to Bartholet, “it’s always dangerous to put powerful people in charge of the powerless, and to give the powerful ones total authority.”
That view, however, is contrary to two centuries of constitutional precedent protecting parents’ fundamental rights to raise and educate their children. As the Court held in Pierce v. Society of Sisters (1923),
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
And for those parents who make the choice to give their children a religious upbringing, that is a choice that substantially benefits society; as President George Washington exhorted his fellow citizens in his Farewell Address of 1796, “let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”
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bsp; The urgency of school choice is all the more important—vital—for parents, often single mothers, trapped in poverty. And for too many kids trapped in failing schools, frightened and without options.
In my eight years in the Senate, the legislation I’m most proud of passing was legislation to expand school choice. In 2017, as a part of the historic tax cut we passed, I offered an amendment that became the only amendment to pass on the Senate floor that added anything to the bill. The amendment concerned college 529 plans, tax-advantaged savings plans that allow parents and grandparents to save for the college expenses of their kids and grandkids. My amendment expanded 529 plans to include K–12 as well.
It was after midnight when we voted. At the time, there were fifty-two Republicans in the Senate. As the votes came in, two Republican Senators voted no. At that point, Senate floor staff picked up the phone and called the vice president, who was at the residence at the time. They told him it looked like we needed his vote to break the tie, and he began to head to the Capitol.
Then, Joe Manchin, a Democrat from West Virginia, voted yes. An audible gasp could be heard in the well of the Senate. At which point, Senate floor staff called the vice president and told his staff, “We got Manchin; it looks like we don’t need the vice president’s vote.” So he turned his motorcade around and began heading back to the residence.
When Manchin returned to his desk, Democrats surrounded him. They were upset—the teachers-union bosses were going to be upset—and they upbraided him for daring to vote against them. A few minutes later, Joe sheepishly walked down to the front and changed his vote to a “no.”