Constitutional expert David Boies said there's no basis for a constitutional fight with the birth control mandate. On The Last Word, he compared the current debate that's heating up in Washington to simple tax law or labor laws.
"There isn't a constitutional issue involved in this case," he told MSNBC's Lawrence O'Donnell on Wednesday. "You don't 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 law that every employer has to comply with."
Boies, who represented Vice President Al Gore in Bush v. Gore, said "this case would have trouble getting to the court."
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This was good. Much of the day I was trying to point out the applicability of an earlier Supreme Court of the U.S. decision that made the "religious interference" argument false (or moot). Most news today seemed to make the argument women's freedom v. government interference with religious practice. But is it not and has not been, at least since 1878.
The unanimous 1878 Supreme Court decision Reynolds v. United States declared that 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.""
I did a bit of digging beyond Wikipedia to substantiate that statement and found it accurate. The case is online at
The finding that is relevant is fascinating. "So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? [98 U.S. 145, 167] To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances."
Your guest implied this applicability and stated the case. Thank you.
This is so fascinating and so empowering. This topic and others quickly move from the actual point of discussion into a direcftion that has nothing to do with the issue at hand. I am so appreciative towards the actual knowledge and facts towards a very important issue.
Thank you Lawrence for the terrific guest and than you Mr Graham for the references.
If the administration were to cave on this, there would be a constitutional issue, as I wrote in a comment on the "Viewer reactions to birth control debate" thread:
http://thelastword.msnbc.msn.com/_news/2012/02/08/10356298-viewer-reactions-to-birth-control-debate?threadId=3341320&commentId=62316170#c62316170
Briefly, the RCC is trying to get the government to help it impose its beliefs on its imployees, by applying financial pressure on its employees to the tune of about $600 per year, contrary to the First Amendment.
Firstly, the government doesn't have "beliefs". It has laws. Those laws apply to everyone; religious groups do not enjoy separate-Nation status. Secondly, there is a big difference between being free to practice your own religion vs. being allowed to force your employees to follow your religious beliefs by taking away all other options. And finally, the religious leaders are only targeting female heath services, based on the sham of "moral values". I notice they are not fighting coverage for Viagra.
Kate, if we were able to access the 'records' of those 'in the Church' -- Viagra would be the #1 used & abused on the list of 'meds' by many of them
Boehner and the Republicans are making a colossal mistake by trying to repeal this mandate right away. The strategy is to keep this conversation going until the day of the election. Obviously this is a very very bad issue for Democrats and they're probably going to wind up losing about 150 million christian votes. This is a game changer unless they let Obama off the hook again. What a STUPID move !!!
How do you come to that conclusion?
What is your thought process on this issue and how this specific issue is a positive or negative from your stanpoint?
What do you mean let him off the hook again? Explain?
It is Mr. Obama that is correct -- and politically courageous because legally he is correct. See the 1878 law above, Reynolds v. United States. I suspect Republicans believe they can reverse the text in this law: To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances."
I agree wholeheartedly with this argument.
But many people have a problem with the government forcing the Catholic Church (or any church) to PAY for the coverage of birth control, although the church is against its use. Co-pays or zero co-pays seem to be their issue.
How can this be argued?
1. The mandate does not apply to churches. It does apply to schools, hospitals and other church affiliated institutions. Those that employ outside their faith.
2. The employee/insured person pays towards their coverage, too. By refusing to contract with an insurance company that covers birth control, the employer is infringing on the EMPLOYEE'S rights by imposing their (the employer's) religious beliefs on the employees. It's not like the employer is personally paying for the birth control, they pay the insurance company, which then pays the pharmacy IF the employee chooses to take it. No one is being forced to take it.
Also, your employer has NO business interfering in ANY way with what goes on in your doctor's office.
it is argued that if they have BUSINESSES operating in the PUBLIC domain - they need to operate under the LAWS of the LAND.... religions do not get some sort of 'special dispensation' to accommodate their beliefs ...
if the Mormons believe in polygamy - it is alright to break the laws of the land because it is included in their religious beliefs?
please see the excellent explanation given by the first post ...
the Catholic Church can be against birth control all it wants - but they have no right to impose their beliefs on their employees of other faiths - of course no Catholic employee would be taking advantage of that health care benefit...right?
The cleptocrats don't care about the constitution. Patriot Act gave America to its enemies via becoming like a draconian sharia police state. NDAA is not arresting Gilani, the homegrown Jihadist with armed encampments dotting the USA and Canada. The cleptocrats are using the full power of their securitate to co opt Ceausescu's birth bond treasury. Criminalize occupiers, send snipers out to oversee their protests. The securitate is the cleptocrat's heroin selling, slave trading torture industry army. Not arresting Jihadists or the white collar criminals they do business with.
And that is why - the GOP fill their debates with Khomeni style attacks on Westernized women and their birth control, Ceausescu - the Caligula of Eastern Europe's communist dictators, is slave trading a birth bond treasury with the cleptocrat's Jihadist immigration graft.
RCC's true aim is to have birth control stripped from the Health Care Act. This is in some ways similar to the Komen issue of last week with the exception that RCC has the GOP mouthpieces driving this with 'BS talk'. Komen had no 'mouthpiece' backing and therefore didn't have someone out there spewing it was 'their Constitutional right.. blah, blah, blah'.
I see it in simplified terms -- at every turn, they are doing their best to dismantle healthcare, more specifically women's health. RCC has no desire to 'compromise' - never did. You (Obama) don't play your 'compromise' hand out of the gate and IMO Obama should get this message out and it's not a 'compromise'. This is RCC 'dictating/mandating' their religion on employees. Too bad the RCC 'followers' don't actually practice what is preached to them!! And since when does 'Vatican' Law dictact over U.S. law??
USA Today exposes RCC in story "Obama mandate on birth control coverage stirs controversy"
"That was no consolation to Catholic leaders. The White House is "all talk, no action" on moving toward compromise, said Anthony Picarello, general counsel for the U.S. Conference of Catholic Bishops. "There has been a lot of talk in the last couple days about compromise, but it sounds to us like a way to turn down the heat, to placate people without doing anything in particular," Picarello said. "We're not going to do anything until this is fixed."
That means removing the provision from the health care law altogether, he said, not simply changing it for Catholic employers and their insurers. He cited the problem that would create for "good Catholic business people who can't in good conscience cooperate with this."
If this comment appears to some to 'bounce around' -- I apologize as it does in that I am totally PO'd on this -- big time. Had enough as the scales tipped last week with Komen & PP and all the various State rammed through bills and am not sitting back any longer!! I'm tired of the many in Congress preaching 'the Constitution' when in fact they're stunned & stupid and seriously do not know what the Constitution truly is but continue to spew BS at every turn on a Show, when a microphone gets put in front of them and the majority never get 'challeneged on it'. Sad we don't have that same option. Far to much MSS is letting people down - All ratings, no challenge for truth/corrections, no investigations. Where's a Tim Russert when you need him!!
Thank you Lawrence for getting this piece out. We do need more 'You', more 'Rachels'!!
THANK-YOU David Boies ... for explaining .... SIMPLY PUT - you operate in the public sector ... you, too need to abide by the laws of the land....
unfortunately - there are too many people in America who are too ignorant to understand.... and the Republicans are DESPERATE to paint the administration as having a war on religion .... They are making a huge mistake .... you are alienating everyone except your bat c**p crazy base who would have their religious beliefs dictate to us all
Well done. Watched this on TV last night and rewound several times. Finally, someone to cut through all the mumble jumble and get to the essentials of the issue (or rather non-issue). The administration needs to package Mr Boies' explanation into clear, easily understood - simple and logical sound-bites to better inform the people (and all the ill-informed media pundits).
David Boies explained this perfectly last night. This is NOT a constitutional issue; it is once again an attempt to shift the focus from what really ails this country! While this "rule" does not force any religion to do anything, the messaging has been missing. Somebody in the administration needs to "hire" David Boies and use him to explain it in plain English as succintly as he did last night so that we can get "over" this diversion and get back to the real issues that face us all as a Nation!
David Boies explained this accurately last night: this is NOT a constitutional issue, but rather a messaging issue for the administration. Somebody needs to hire Mr. Boies to get in front of the cameras everywhere (including Fox) to put this in "plain" English so that even the least informed can understand it!
I couldn't be more disappointed in the one-sided approach of MSNBC on this issue.
Matthews, O'Donnell, Shields - all carrying water for the misogynistic Catholic Church.
I don't get it.
The Churches are already exempt.
Why take the position that women should be subjugated to Catholic Bishops hysteria?
What makes Catholics and their businesses special? Where do we draw the line on this?
MSNBC's misogynistic position on this is very disappointing indeed.
Please, MSNBC, play the David Boies explanation from Thursday evening on the daytime shows. It is an excellent and understandable explanation that makes sense. All this wringing of hands, mostly by men (?), and mostly by Republicans, is silly. While this may be a trickier issue than Child Labor Laws, it is not difficult to understand.
Have David Boies, as a guest, on every show that MSNBC is able.
If the Catholic church is so against birth control then the population of Catholics will far out number the population of any other religious sect in the world. If that's the case then the average immediate Catholic family will consist of at least twenty children. As we can see, that's not the case. So somebody's using birth control!!! Nobody can force birth control on you. You have a choice to use birth control or not. And it's clear that people are using it.
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The catholic hosp that I work at, has told the employee's if they are forced to do this they will drop our coverage. And we will have to buy our own health insurance, thanks Obama
Can you give a reference to a news item that reports this? Preferably a clickable link.
Won't happen! There are federal and state laws that prevent employers from discriminatory acts. Is IL one of the 28 states that mandates this coverage? This entire thing is so ridiculous...only in America!!!!
Another scare tactic to get you to support them as they are on the wrong side of the law on this one.
This entire issue goes away if the US politicians would do what all other industrialized nation do in regards to heath care...adopt a single payer universal health system! The facts are clear that the US has one of the most expensive if not the most expensive health care delivery system in the world and much of its costs are born by the employers. What better way to quickly make the US companies more competitive with its international competitors than to remove heath care costs from their employee costs! For those who argue that this would lead to rationing and government making health care decisions let me remind you that the insurance companies currently ration health care and make key health care decisions that may not be in the best interest of the patient and contradicts the patient's physician's patient care directives. Furthermore, it is time the US take a most meaningful step to reduce health care cost while enhancing the delivery of preventive and primary care services by eliminating the fee for service construct and move to a contract / outcome performance based system. Unfortunately, the AMA, insurance companies and the right wing of the Republican party only have their self-interest at heart and continue to play on American's fears that a single-payer system with physicians working in a salary arrangement rather than the current fee for service method will degrade US health care services and outcomes, impose rationing and the creation of death panels. Nothing could be farther from the truth! The AMA is likened to a union and controls the supply of physicians. Insurance companies ration the delivery of health care through its sole decision of what procedures, medications and hospital stays it will reimburse. Physicians' income vastly surpasses that of physicians in any other country due to the use of the fee for service compensation model where utilization is rewarded rather than outcomes. It is time we act upon all the academic studies that have been done regarding the US health care delivery system, take steps to help the US companies become more competitive with their international competitors by removing the burden of health care costs and administration from their business operations and actually have a first class health care delivery system that seeks to prevent illnesses and disease rather than cure them with expensive physicians and medical technology.
Lawrence, please go down the hall, grab Chris Matthews, drag him to a monitor and force him to watch Mr. Boies explain the facts.
YES, YES, YES!!!!
Many times I have to turn Chris off as I hear him spouting his 'history' and it's more like the GOP talking points. He confuses more than he gets right.
Absolutely, please do. Chris is not getting it.
@ Clyde- no, thank your Catholic employers. They're the ones who don't want you to be insured.
Terrific segment on your show. Please re-feature it daily!
Well, it is clear so many here miss the mark. I am a superfan of Lawrence O'Donnell and I am sorry you all are allowing blinding partisanship to define the debate. Plain and simple (and as a past campaign operative for Obama) I am upset with our Administration (as the State) muscling in on the Church (defended here especially by those who abhor mixing of Church and State). A religious entity is entitled to and allowed to protect their beliefs and the State is strictly prohibited under the Constitution from abridging those rights. Period. What does Lawyer David Boise (whom I respect for his body of work) not see in the Obama/Sebelius over-reach? My faith beliefs are not the same as requring me to pay taxes, David!
OK require 99 percent of the employers all you like ... but in the case of any religious institution you will lose before the Courts in mandating a religiously owned hospital, college, agency or diocese to carry coverage against long held and established beliefs. Period.
This is a HUGE political loser for the President. I am an ardent Obama supporter who will not vote for a man or woman who forces my Church to do what it is morally opposed to and denies my basic right to practice my religious beliefs.
Katherine Sebelius and HHS have changed the definition of a religious institution. If it has one employee not of the Religious Institutions' faith, HHS says it no longer is considered a religious institution -- a Jewish hospital with baptist working there -- sorry, Sebelius redefined it and it is no longer a religious owned entity. A Catholic college that employes a Jew or a Protestant or a Hindu -- no longer a religious institution. That is BALONEY.
We may differ on abortion, on contraception, on gay marriage and those differences are to be respected. However, FORCING a religious institution with centuries of belief to do what it is morally opposed to is a VIOLATION of the US Constitutioon and the Court will so rule.
And an Obama campaign that advocates intrusion into my religious beliefs will have many of us who love the man and worked for him jumping ship or not voting in 2012.
Count on it.
The "mark" is quite simple and straightforward here. The RCC is trying to recruit the government in the church's campaign to impose its religious beliefs on its employees. If the government were to agree to this, it would be in violation of the Establishment Clause of the First Amendment.
The "belief" in question here is the belief that the RCC is entitled and allowed to impose its beliefs upon its employees, and to call upon the financial muscle of the government to aid it in this somewhat questionable goal. The State is strictly prohibited under the Constitution from establishing religion in this way.
Please spare us your concern trolling, and give a little more thought to what's really at stake.
There is NO war on religion. Organized religion or any church has NO right to tell us what we can do about family planning Catholics can do what they please but do not infringe on others private lives. Catholic Hospitals must serve all its patients Not just Catholics > The Church has lost moral authority after many years of covering up for pedophile Priests and paying off victims .
"A religious entity is entitled to and allowed to protect their beliefs and the State is strictly prohibited under the Constitution from abridging those rights."
This is not true. The Bill of Rights protects the freedom of religion but not necessarily the practice, as our system of law punishes for actions, not "being." For this same reason, if you make up your own religion, the Government will recognize it as a religion, but it does not necessarily mean that they will allow marijuana-smoking practices required by your said religion.
The debate within this mandate is the fact that individual people have to pay a piece of the "pool" allocated to something against their religious beliefs. Actually, I believe the Conservative Associate Justice Scalia put it quite nicely in Employment Division v. Smith: "We have never held that an individual's religious beliefs excuse him from compliance of an otherwise valid law."
Thank you, thank you Lawrence O'Donnell for the David Boies interview. that calmly, rationally and constitutionally demolished all of the inflammatory, alarmist and untrue assertions being made by the Catholic church hierarchy, a good deal of the older white male punditocracy and Republican demagogues. I was waiting for at least one TV program to clearly state that this is not a constitutional or a religious liberty issue.
And thanks Lawrence for being so open-minded and for having Boies on, even though (as you stated in your post-show video), you had no idea what Boies would say on the issues.
The Catholic Church managed to co-exist with Hitler in the 1930's and 1940's (until they figured out he was going to lose the war.) Their record on pedophilia in the church is disgusting. Coping with the HHS rule on insurance coverage should be a walk in the park. (And, yes, I am Catholic-but at times like this, I wonder why.)
Thanks. Catholic Church or Far right has NO right to tell women what we can do in our private lives. How dare they . When I grew up my Catholic pals told me
" I would not go to heaven since I was not Catholic . That is decidedly UN Christian behavior. Organized religion has little to do with God 's teachings. Feed the Hungry Heal the Sick .
Catholics USE contraceptives ! Boehner & Santorum are worst kind of chauvinists . There is NO war on religion . But the GOP / Tea Baggers have declared a war on women's rights. How dare these extreme self righteous phonies intrude on our private lives.
David Boies for President! Oh wait....he's too smart and too well-educated and probably a member of that "effete/elite" crowd. Oh well....Seriously, too bad everyone cannot hear this relatively simple explanation.
So what's next?
If I run a Catholic hospital:
If I run a Jewish hospital:
Once again, the Last Word has explined things in a conceise manner without the factless spin that the right engages in. I learned a lot by watchng your show. President Obama is NOT waging war on the Catholic church. The far-right can't run on the economy because things are getting better, so they are picking this issue as a cultural issue to use as red meat for their base. I am going to work hard to get this president re-elected beacus he has done a great job without the help of the Republicans, and yes.... it is "halftime in America".