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

Posted 12 years ago on Feb. 10, 2012, 7:20 a.m. EST by bensdad (8977)
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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.

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[-] 2 points by learnthis (120) 12 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.