Legal expert counters claim that mandate is not religious persecution

Washington D.C., Jun 4, 2012 / 14:58 pm

In response to assertions by Professor Stephen Schneck that the federal contraception mandate is not a form of religious persecution, lawyer Hannah Smith is warning that it shows a dangerous disregard for the First Amendment’s protections of religious freedom.

“The HHS mandate is a serious infringement of religious freedom in this country, not just for Catholics but for people of all faith,” said Hannah Smith, senior counsel at the Becket Fund for Religious Liberty.

Smith responded to arguments by political science professor Stephen F. Schneck, who recently argued that the ongoing concerns of the U.S. bishops and Catholic institutions over the federal contraception mandate do not amount to these groups “encountering religious persecution.”

Schneck, who is the director of the Institute for Policy Research and Catholic Studies at The Catholic University of America in Washington, D.C., told CNA on May 30 that such language is “overblown.”

But the U.S. Conference of Catholic Bishops’ religious freedom committee sees things differently and has warned that “religious liberty is under attack” from threats including the mandate.

Cardinal Timothy M. Dolan of New York, president of the bishops’ conference, has referred to the mandate and its narrow exemption as “strangling.”

However, in a May 22 blog post, Schneck dismissed such arguments, saying it is “ridiculously obvious” that there “is no persecution of Catholics in the United States.”

“Catholic institutions are not denied religious liberty by the Affordable Care Act and not morally compromised by its contraception mandate,” he wrote. “A pretty good wall of conscience protection surrounds the health care law, insulating religious institutions from complicity in providing drugs opposed by the Church.”

He argued that using the language of religious persecution and war is “dangerous” and “an unacceptable escalation of America’s highly partisan culture war.”

Schneck’s comments focused on the controversial federal mandate that will require employers to offer health insurance plans that cover contraception, sterilization and abortion-inducing drugs, even if doing so violates their consciences.

The mandate includes a religious exemption that has been criticized for its narrow scope because it will not apply to religious schools, hospitals or charitable institutions.

Schneck said that he is in favor of broadening the exemption, but does not believe that the mandate in its current form amounts to “religious persecution.”

However, Smith responded that “the mandate has the hallmarks of executive action made in complete disregard for the religious freedom rights guaranteed by our Constitution and federal law.”

She observed in a June 4 interview with CNA that thousands of comments were submitted to the Obama administration during the mandate’s consideration period.

But despite the constitutional and moral concerns raised by these comments, Health and Human Services Secretary Kathleen Sebelius acknowledged in April 26 testimony before a House subcommittee that she proceeded with the mandate without asking the Justice Department for a legal opinion on the regulation.

“That certainly suggests a serious disregard for the freedoms of religious institutions in this country,” Smith said.

More than 50 organizations and individuals have filed lawsuits against the mandate, including Schneck’s employer, The Catholic University of America.

While he has stated that he doesn’t believe the mandate is religious persecution,Schneck said he generally shares the continued concerns of critics of the mandate and supports the efforts of the university in challenging it in court.