Legal experts say HHS dispute pits government against God

Indianapolis, Ind., Jun 21, 2012 / 23:05 pm

The HHS contraception mandate shows the federal government asserting its own authority as a "rival" to God, legal scholars warned, as the U.S. Church began two weeks of action for religious freedom.

"Power hates a rival, and allegiance to an all-embracing, monotheistic God poses a significant threat to power," University of Oklahoma law professor Michael Scaperlanda said during a June 21 panel discussion on religious liberty at the 2012 Catholic Media Conference in Indianapolis.

"We are told today that our nation is too diverse to be influenced by religious moral principles. But history reveals a deeper and darker reason for marginalizing religion," Scaperlanda said. "Simply put, the state is jealous of the rival source of authority."

The University of Oklahoma professor offered his thoughts on the mandate, and related threats to the free exercise of religion, alongside Canon Law Society of America President Rita Joyce, and Professor Carter Snead of the University of Notre Dame Law School.

Their remarks to journalists and other media came as the U.S. bishops began the June 21-July 4 "Fortnight for Freedom" campaign. The initiative seeks to rally Catholics against the mandate requiring religious employers to offer objectionable services, including sterilization and abortion-causing drugs.

Joyce spoke about the 23 pending lawsuits that have been filed against the mandate by 56 different plaintiffs, including many Catholic dioceses. The canon law society president is also general counsel for the Diocese of Pittsburgh, which is among the local churches suing to block the mandate.

She stressed that the Church had been forced to defend itself by the Obama administration's denial of conscience rights. While the Church's own internal laws normally require compliance with civil law, the contraception mandate forces the Church to choose between obedience to God, or to the state.

"Canon law defers to civil law in those matters where it doesn't conflict with 'Divine law' – or God's law," Joyce said. "Civil law, here, is conflicting with our law. It's conflicting with God's law, with the Church's law."

"We do need to resist it, from a canonical point of view, because civil law here is coming in conflict with canon law."

Snead, who specializes in public policy and bioethics at Notre Dame, stressed that the Obama administration had not followed through on a promise to "accommodate" employers with moral objections to contraception, sterilization, and abortion-causing drugs.

"This is one of the great myths of this debate. There is no accommodation," Snead said.

Instead, he explained, the president had made a "promise to try to find some form of accommodation by August 2013" for groups with moral objections to the mandate.

"Those of you who pay attention to politics might notice that that's significantly after the presidential election," Snead remarked.

Even "non-cynical" observers, he said, should ask themselves why the president would wait until after the election "to resolve this very vexed controversy" that involves the "very important voter population" of U.S. Catholics.

He summed up the administration's message to concerned Catholics: "Don't worry about this very serious problem that you're concerned about; I'll deal with it after the election's over, in a way that I'm sure you'll find satisfying."

The Notre Dame professor described the mandate as a "radical form of coercion" against religious groups. He also rejected the notion that Catholics were seeking to restrict access to contraception, an objection raised by some activists who have sought to shift the debate away from religious freedom.

"The very definition of 'coercion' has been perverted in this debate," Snead objected. "People are saying that it's 'coercion' on the part of the religious institutions, to not pay for something that is available through other means."

"It's not coercion for me not to pay for something for you that violates my religious tradition."