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Forum Post: DAVID BOIES, one of America’s leading constitutional experts:

Posted 2 years ago on Feb. 10, 2012, 7:20 a.m. EST by bensdad (8977)
This content is user submitted and not an official statement

There isnt a constitutional issue involved in this issue. First Amendment of the Constitution prohibits establishment of religion. That is you cant have the government saying you are going to have to follow certain religious beliefs, and it guarantees free exercise. That means everybody is free to exercise the religion that they choose.
There isnt anything in the Constitution that says an employer, regardless of whether you are a church employer or not, isnt subject to the same rules as any other employer. The minimum wage, safe working conditions, workmans compensation, age restrictions. You could have a religion that says we believe that everybody when they are 60 years old must retire. That doesnt give that religion an exemption. This is just simple labor law. There are all sorts of laws that apply to every employer in this country, and you dont exempt religious employers just because of their religion. You are not asking anybody in the Catholic Church or any other church to do anything other than simply comply with a normal laws that every employer has to comply with. The law wouldnt say to a Catholic hospital, that you have got to do these acts that are contrary to religion, perhaps an abortion or something like that. They would, however, say to that hospital, youve got to treat your employees consistent with the law. And youve got to give him health insurance like youve got to give him workmans compensation.
The NY law, for example, has the same exemptions as the federal law, that is the exemption for church employees, not hospital employees. If a Catholic Church owns a restaurant, those employees arent exempt. If they own a hospital, those employees arent exempt. If they own a university, those employees aren`t exempt.

We had a religious-based practice outlawed in this country.
Polygamy was outlawed in the 1878 by the United States Supreme Court because the Constitution has never prohibited Congress or the state legislatures from imposing limits that applied to everybody. In other words, you may have religion that believes in sacrificing animals - that doesn`t mean you are going to get an exemption from the anti-cruelty to animals laws.

As long as you have laws that apply across the board, and they are reasonable related laws the state has the right to impose those and you don`t get a pass just because you form or have a religion that has a sincere belief to the contrary.

Now, this is not a question of freedom of religion. Nobody is forcing Catholics to use contraception.


THE ESTABLISHED LAW OF THE LAND FOR 134 YEARS: The unanimous 1878 Supreme Court decision - Reynolds v. United States clearly declared that the religious belief and practice of polygamy was not protected by the Constitution, based on the longstanding legal principle that
"laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices."


This is why religion’s “blue” laws have been ruled unconstitutional.
If you are a sincere Catholic who disagrees with this decision,
I respect your opinion.
But please do not site political hacks and liars to support your position.
The law of the land is the law of the land.
America is a nation of people, not churches.
You may regret that - but you know that.
There is no war on religion.

25 Comments

25 Comments


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[-] 2 points by learnthis (120) 2 years ago

I could spend a week trying to straighten out this rant. The First Amendment does not prohibit religion. It guarantees the freedom a person to choose which religion they follow and prohibits the government from telling anyone they must follow a certain religion. This clause has been debated by the best legal minds and everyone agrees that there is a problem. Rather than spend hours writing this I have cut and pasted from the Cornell Law Website because I think their explanation is easy to understand. http://www.law.cornell.edu/wex/free_exercise_clause

There are two items in the First Amendment that are commonly called the Free Exercise Clause.

Free Exercise Clause refers to the section of the First Amendment italicized here: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals. The wording in the free-exercise clauses of state constitutions that religious “[o]pinion, expression of opinion, and practice were all expressly protected” by the Free Exercise Clause.[1] The clause protects not just religious beliefs but actions made on behalf of those beliefs. More importantly, the wording of state constitutions suggest that “free exercise envisions religiously compelled exemptions from at least some generally applicable laws.”[2] The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons. In the terms of economc theory, the Free Exercise Clause promotes a free religious market by precluding taxation of religious activities by minority sects.[3]

Constitutional scholars and even Supreme Court opinions have contended that the two religion clauses are in conflict. E.g., Thomas v. Review Board, 450 U.S. 707 (1981). As mentioned previously, the Free Exercise Clause implies special accommodation of religious ideas and actions, even to the point of exemptions to generally applicable laws. Such a special benefit seems to violate the neutrality between “religion and non-religion” mandated by the Establishment Clause. McConnell explains:

If there is a constitutional requirement for accommodation of religious conduct, it will most likely be found in the Free Exercise Clause. Some say, though, that it is a violation of the Establishment Clause for the government to give any special benefit or recognition of religion. In that case, we have a First Amendment in conflict with itself—the Establishment Clause forbidding what the Free Exercise Clause requires.[4]

Historically, the Supreme Court has been inconsistent in dealing with this problem. When the Court leans toward more accommodation for the Free Exercise Clause, there is greater conflict.

When the Amendment was drafted, it applied only to the U.S. Congress; state and local governments could abridge the free exercise of religion as long as there was no similar provision in the state constitution. In 1940, the Supreme Court held in Cantwell v. Connecticut that, due to the Fourteenth Amendment, the Free Exercise Clause is enforceable against state and local governments.

[1] Michael McConnell, Religion and the Constitution (2002), pg. 105. [2] Id. at 107. [3] Richard Posner and Michael McConnell, "An Economic Approach to Issues of Religious Freedom," 56 University of Chicago Law Review 1 (1989). [4] McConnell, note 1 above, at 102.

[-] 1 points by BonTon (57) 2 years ago

This isn't even legible, but who care anyway what the ultimate WASPy, white-shoe corporate lawyer from Westchester thinks? OWS is totally whacked.

[-] 1 points by brightonsage (4494) 2 years ago

The word is "cite."

[-] 1 points by bensdad (8977) 2 years ago

ouch

[-] 1 points by brightonsage (4494) 2 years ago

You weren't the only one. More in the comments below, Boies is world class in his field. You may not like the field but he and Olson are pretty good at what they do. Neither can do brain surgery on me.

[-] 1 points by JPB950 (2254) 2 years ago

Boies certainly provides an informed opinion, but he has been wrong before. Wrong as determined by the courts. Obviously the church feels differently. One side will back down or the final decision will be made by the court. Foolish issue politicly for the administration to enter into though no matter who is finally found to be right.

[-] 1 points by bensdad (8977) 2 years ago

The constitution protects PEOPLE not CHURCHES.
No matter who "wins" or "loses" - All Americans deserve to be equally protected.
Can a Jewish hospital refuse to hire a Catholic?
Can a Methodist hospital refuse to give workman's compensation rights to Catholic employees?

[-] 1 points by JPB950 (2254) 2 years ago

It would depend on the tenets of their religion. What has been allowed or prohibited in the past would probably serve as a guide. The official Catholic Church position on abortion and birth control hasn't changed at all. They have been against condoms since their invention, same with the pill and abortion.

Many Catholic hospitals have refused to do abortions for years. Hospitals don't hire on the basis of religion alone as far as I know. There was a case in Cincinnati Catholic school of a woman fired for being artificially inseminated. Apparently all employees sign a contract agreeing to live by the principals of the Catholic faith when they are hired.

I'm not saying I agree at all with the Catholic position, but it isn't like they came up with it last week. You either allow them the free exercise of their religion or you don't. Occasionally you can make a compelling argument like the one made against the Mormons and polygamy.

The whole thing may be moot now, Obama has offered some kind of compromise church officials are going to look at it. Either he thinks his position is weak of he realizes it's politically necessary to quell the debate.

[-] 1 points by bensdad (8977) 2 years ago

I find your response very balanced - and I admit I am totally on the side of the 1878 Supreme court decision and David Boise's evaluation.

This is what I see:
I am shocked that Obama did not see this coming
The reality of this has nothing to do with giving out contraceptives
I believe this is primarily an Rs disturbance - not caused by the church - just like the birtherism and Muslim junk.
The solution Obama proposed is brilliant
I don't like it when he backs down, but I understand the political need to do so
It will be VERY VERY telling - now that Obama and the church seem to be in agreement - will the Rs stop their "war on religion"


FYI- have you noticed how many Rs "causes" in the last 20 years are based on keeping everything tied up - so as not to spend money?
gay marriage, flag burning, the American motto, contraception etc etc
but war - that we can spend money on - we Americans love war

[-] 1 points by JPB950 (2254) 2 years ago

I'm surprised at Obama to some degree, the whole thing never should have happened. He had Biden and Panetta, both Catholics and both knew this would be trouble. In an election year it was not a smart move. I was more surprised though to find out that it had stirred up so many other religious groups too.

[-] 0 points by Kirby (104) 2 years ago

What I don't understand is why the hell should their even be such a mandate. Pay for your own damn birth control. The mandates that are coming out of obamacare will only force already high insurance premiums higher.

[-] 1 points by bensdad (8977) 2 years ago

And why is cost of health care in America higher than anywhere?
Could it be the large cut that the insurance companies take for doing nothing except bribing congressmen?
Medicare overhead is less than 2%
Private insurance overhead is 20%-30% Don't we all love crapitalism?

[-] 0 points by Kirby (104) 2 years ago

My brother worked for united health care. He made 70k a year, just one of 70,000 middle men that that corporation employs. Our health care is not insurance as much as it is prepaid health service. Growing up in the fifties, what my dad had was a catastrophic health insurance plan. It protected us from catastrophe. My mom told me when I asked her how they did it, she said they had a running tab at the clinic, and the clinic left us alone as long as something, even 5 bucks was paid every month.

[-] 0 points by TrevorMnemonic (5827) 2 years ago

I thought this was going to be about David Bowie.

[-] 1 points by bensdad (8977) 2 years ago

Isn't he the guy who invented the knife?

[-] 1 points by TrevorMnemonic (5827) 2 years ago

David Bowie was in Labrynth.

[-] 1 points by bensdad (8977) 2 years ago

Amazing reply

[-] -1 points by tomahawk99 (-26) 2 years ago

Why is Obama back peddling now? David is a partisan hack so why did you site him?

[-] 2 points by bensdad (8977) 2 years ago

And your source - defining David as a partisan hack?
How many years was he on the payroll of which president?
How many years was he on the payroll of which political party?

Boies, Schiller & Flexner LLP is currently rated 17th in "overall prestige" and 12th among New York law firms by Vault.com, a website on legal career information

but they are a partisan hack - right?

[-] 0 points by Kirby (104) 2 years ago

The lawyers in my family are greedy pricks making money off the backs of the public, and the poor. I trust lawyers less than tv preachers.

[-] 2 points by bensdad (8977) 2 years ago

maybe you should get a better family I have had five lawyers in my family - all are ( or were) morally exemplory I personally have had bad experiences with lawyers
Although I would make an exception for TV preachers,
I am VERY reluctant to paint any group with one brush, even Rs.

[-] 0 points by Kirby (104) 2 years ago

You're right. I shouldn't generalize.

[-] -1 points by tomahawk99 (-26) 2 years ago

David is a liberal, this is widely known. He was on the case against prop 8. nothing wrong with that, but if that's not politically on the left what is? So why should i drop all logic and agree with him, he is a lawyer, his job is convince you for his side. Get it?

[-] 1 points by bensdad (8977) 2 years ago

Yes - I agree he is a liberal. not a hack. Michael Steel is a conservative - not a hack David Frumm is a conservative - not a hack I assume you know who Boise worked with to kill prop 8 Is Olsen a hack? They both stood together against the prop 8 travesty - substantially funded by Utah Mormon money. I know I 'm being picky - but I would not label someone because I disagree with them.

[-] 0 points by tomahawk99 (-26) 2 years ago

ok fair enough. i still don't buy his logic.