Opinion
No. C 00-4285 CRB
November 13, 2001
MEMORANDUM AND ORDER
Plaintiff contends that section 4454 of the Balanced Budget Act of 1997 violates the Establishment Clause of the First Amendment by granting exemptions from Medicare and Medicaid requirements for religious non-medical health care institutions. Now before the Court are the parties' cross-motions for summary judgment. After carefully considering the papers filed by the parties, and having had the benefit of oral argument, the Court GRANTS the motions for summary judgment of defendant and defendant-in-intervention and DENIES plaintiff's motion for summary judgment.
BACKGROUND
In 1965 Congress enacted the Medicare Act, 42 U.S.C. § 1395, et seq., and the Medicaid Act, 42 U.S.C. § 1396, et seq. ("the Programs"), thus creating a system of comprehensive health insurance for elderly, disabled, and low-income people. Both of these Acts contained express exceptions for Christian Scientists, who object to medical care, deny the reality of disease. and believe that prayer is the only means of healing. The exceptions extended to Christian Scientists the nonmedical aspects of Medicare- and Medicaid-funded services and excepted Christian Science sanatoria (hospitals) from the Acts' medical oversight requirements. In 1996, the United States District Court for the District of Minnesota struck down these exceptions on the ground that they facially discriminated among religious sects in violation of the Establishment Clause. See Children's Healthcare Is a Legal Duty, Inc. v. Vladeck 938 F. Supp. 1466. 1485 (D.Minn. 1996)("CHILD I"). While the court observed that the Programs' exceptions were "laudable," it nonetheless concluded that it was unlawful for the statute to "explicitly address institutions of a single religion." Id. at 1479, 1473.
In response, Congress amended the Medicare and Medicaid Acts to replace the sect-specific portions with sect-neutral language. Section 4454 deletes all references to "Christian Science sanatoria" and instead uses the phrase "religious nonmedical health care institutionS ("RNHCIs"). Congress defined an RNHCI as an institution that "provides only nonmedical nursing items and services exclusively to patients who choose to rely solely upon a religious method of healing or for whom the acceptance of medical health services would be inconsistent with their religious beliefs," an institution that, "on the basis of its religious beliefs, does not provide . . . medical items and services . . . for its patients." 42 U.S.C. § 1395x(§)(1)(C),(F). Section 4454 requires the Programs to pay for inpatient services provided to an individual in a RNHCI if the individual would have been entitled to Program benefits for the same services provided in a qualified medical facility. See 42 U.S.C. § 1395i-5(a)(2). These services include bed and board, assistance with activities of daily living, assistance in moving, turning, positioning, and ambulation, meeting nutritional needs, and comfort and support measures. See 64 Fed Reg. 67028, 67030 (Nov. 30, 1999); Child I, 938 F. Supp. at 1485.
The constitutionality of section 4454 was subsequently challenged in a suit filed in federal district court in Minnesota. The plaintiffs argued that the amendments deleting explicit reference to Christian Science sanatoria did not affect the constitutionality of the exemption because the only institutions that qualify for the exemptions under the amended statute are Christian Science sanatoria. The district court disagreed and held that section 4454 is a permissible accommodation of religion. See Children's Healthcare is a Legal Duty. Inc. v. Min De Parle. 97-1794. slip. op., (D. Minn. July 24. 1998). The Court of Appeals for the Eighth Circuit affirmed in a 2-1 panel decision. See Children's Healthcare Is a Legal Duty, Inc. v. Min De Parle. 212 F.3d 1084 (8th Cir. 2000) ("CHILD II"), cert. denied, 121 S.Ct.1483 (2001).
In this lawsuit plaintiff David Kong alleges that he is a taxpayer who "objects" to the "religious theology" of Christian Science. His principal claim is that the amended statute constitutes a "sect-specific preference" that provides "special benefits" to Christian Scientists. He also claims that the statute "delegates coverage decisions to the RNHCIs," in violation of Larkin v. Grendel's Den, 459 U.S. 116 (1982), and that it provides "direct payment" for "religious activity" in "pervasively sectarian" Christian Science sanatoria.
DISCUSSION
1. Jurisdiction/Standing
Defendant-in-intervention, The First Church of Christ, Scientist ("intervener"), challenges, in part, plaintiff's standing to bring this action. In Flast v. Cohen, 392 U.S. 83 (1968), the Supreme Court held that taxpayers have standing to challenge the disbursement of government funds under the Establishment Clause. To have such standing a plaintiff must demonstrate (1) "a logical link between [his] status [as a taxpayer] and the type of legislative enactment attacked," and (2) "a nexus between that status and the precise nature of the constitutional infringement alleged." 392 U.S. at 87, 102. Intervener concedes that there is a direct nexus between plaintiffs status as a taxpayer and his allegation that federal funds are paying for religious activity. It nonetheless contends that plaintiff does not have standing to pursue his other claims. namely, his claim that section 4454 unconstitutionality grants special benefits to Christian Scientists; it argues that such a claim is more akin to an equal protection challenge and thus to have standing plaintiff must show that he has suffered a legal injury as a result of the exemptions and that such injury is redressable by a favorable decision. See Allen v. Wright, 468 U.S. 737, 751 (1984).
The Court disagrees. While plaintiff's claim is somewhat similar to an equal protection claim, it is still nonetheless premised on his contention that the government should not provide federal funds to RNHCIs. As such. there is a sufficient nexus between his claims and his taxpayer status. See Child II. 212 F.3d at 1090 n. 4 (rejecting assertion that the plaintiff must have equal protection standing). In Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (l994), for example, the Supreme Court permitted taxpayers to challenge New York's creation to a special school district for the village of Kiryas Joel, a religious enclave of Satmar Hasidim practitioners of a strict form of Judaism. The Court rejected the proposition that only those denied equal treatment could challenge the creation of the special district: "[U]nder the dissent's theory, if New York were to pass a law providing school buses only for children attending Christian day schools, we would be constrained to uphold the statute against Establishment Clause attack until faced by a request from a non-Christian family for equal protection under the patently unfair law." 512 U.S. at 708-09. Thus plaintiff, by virtue of his status as a taxpayer, has standing to challenge the Programs' exemptions for RNHCIs.
II. Summary Judgment Standard
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242. 248-49 (1986). "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all reasonable inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 L.3d 732, 735 (9th Cir. 1997). A principal purpose of the summary judgment procedure "is to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett. 477 U.S. 317, 323-24 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Ind. Co. v. Zenith Radio. 475 U.S. 574, 587 (1986).
In this case all parties — plaintiff, defendant and intervener — have moved for summary judgment. Plaintiff IV contends that based on the undisputed facts it is entitled to a judgment that section 4454 is unconstitutional and defendant and intervener contend that based on the undisputed facts the statute is constitutional. "[W]hen parties submit cross-motions for summary judgment, `[e]ach motion must be considered on its own merits.'" Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (quoting William W Schwarzer. et al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 499 (Feb. 1992)). Even if all parties assert that there are no uncontested issues of material fact. the Court must still determine if there are disputed issues of material fact. See id. "A summaiy judgment cannot be granted if a genuine issue as to any material fact exists." Id.
III. The Establishment Clause Challenge
The Establishment Clause of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. Plaintiff contends that section 4454 violates the Establishment Clause on its face and as applied to the Christian Scientists sanatoria.
A. The Facial Challenge
The Court must first determine whether section 4454 discriminates among religious sects. If it does, the Court must apply a strict scrutiny analysis as set forth in Larson v. Valente, 456 U.S. 228 (1982). Otherwise, the Court must apply the three-part test set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). See Hernandez v. C.I.R., 490 U.S. 680. 695-96 (1989); see also Bollard v. California Province of the Society of Jesus, 196 L.3d 940, 948 n. 2 (9th Cir. 1999) (noting that while several Supreme Court justices have indicated their unhappiness with the Lemon test, the Ninth Circuit continues to apply the test because the Supreme Court has not yet reached a consensus on its successor).
1. The Standard of Review
In Larson, the Supreme Court applied a strict scrutiny standard to declare unconstitutional a Minnesota statute that imposed certain reporting and registration requirements upon charities, but exempted from those requirements religious organizations that receive more than 50 percent of their funds from members or affiliated organizations. 456 U.S. at 230-32. Based on the legislative history, the Court concluded that the statute was drafted with "the explicit intention of including particular religious denominations and excluding others." Id. at 254. The "effect of the statute was to discriminate among religions, and in effect, the statute was a judgment that some religions were worthy of exemption and others were not." Droz v. C.I.R., 48 F.3d 1120, 1124 (9th Cir. 1994). Thus, to facially discriminate among religions, a law need not expressly distinguish between religions by sect name. See Child II. 212 F.3d at 1090 (citing Larson. 456 U.S. at 232 n. 3). "[T]he Establishment Clause forbids subtle departures from neutrality, `religious gerrymanders,' as well as obvious abuses." Gillette v. United States, 401 U.S. 437, 452 (1971). Nonetheless, the text, legislative history, and effect of section 4454 persuades the Court that the exemption does not facially discriminate among religions and there fare is not subject to strict scrutiny analysis.
Section 4454 by its terms uses sect-neutral language; it does not mention Christian Scientists. Any individual who states in writing that he or she is "conscientiously opposed" to medical treatment and that such treatment is "inconsistent with the individual's sincere religious beliefs" qualities to receive Medicare- and Medicaid-funded services in a RNHCI. See 42 U.S.C. § l395i-5(a)(1), 1395i-5(b)(2)(A) see also 64 Fed. Reg. at 67029 (stating that "any facility that meets the definition of an RNHCI may qualify for payment, not just . . . Christian Science sanatoria").
The legislative history of section 4454 confirms that Congress intended the statute to be sect-neutral. Congress explicitly stated that the exemption is intended to provide "a sect-neutral accommodation to any persons . . . for whom the acceptance of medical health services would be inconsistent with his or her religious beliefs." H.R. Conf. Rep. 105-217, 768. 1997 U.S.C.C.A.N. 176. 389. "Whether the religious objector is of the Christian Science faith or some other sect is immaterial; section 4454's benefits were intended for all persons who embrace spiritual healing over medical treatment." Child II, 212 F.3d at 1091.
Section 4454 is also not facially discriminatory in its actual operation. While it is true that no facilities aside from Christian Science sanatoria presently qualify as RNHCIs, this fact alone does not make section 4454 impermissibly discriminatory. See Larson, 456 U.S. at 246-47 n. 23. If that were the case. Congress could only accommodate those religions whose beliefs and practices are shared by other religions. It is equally true that plaintiff has not identified any other religion whose beliefs preclude its members from receiving the Programs' benefits and yet the members. or a health-care facility affiliated with the religious organization, do not qualify for the section 4454 exemption. Thus, section 4454 in operation does not discriminate among religions.
Plaintiff, however, frames the issue differently and insists that the statute only benefits a single sect, Christian Scientists; while the text of the statute may be sect-neutral, the legislative history reveals nothing more than a congressional attempt to "gerrymander" — to reinstate the old benefits to Christian Scientists alone. Plaintiff notes that Senators Kennedy and I-latch, two of section 4454's sponsors. both indicated their desire to continue benefits to Christian Scientists. 143 Cong. Rec. S6321-22 (daily ed. June 25, 1997) (statement of Sen. Kennedy); 143 Cong. Rec. S8447 (daily ed. July 31, 1997) (statement of Sen. Hatch); see also H.R. Conf. Rep. 105-217, 768, 1997 U.S.C.C.A.N. 176, 389 (noting that section 4454 "continues the provision of needed nonmedical services to poor and elderly Americans") (emphasis addled). Moreover, argues plaintiff, because section 4454 expressly requires RNHCIs to be tax exempt religious organizations and contains specific religious belief tests, its textual criteria fit the institutions of only one religion, Christian Science, and therefore the statute is subject to strict scrutiny.
The Court is not persuaded. First, the fact that Congress wanted to continue benefits to Christian Scientists does not mean they wanted to continue benefits solely to Christian Scientists. Rather, the legislative history demonstrates that Congress wanted all who are religiously opposed to medical care. including Christian Scientists, to be able to receive the Programs non-medical benefits.
Second. the disparate impact of section 4454 alone is "insufficient to make section 4454 impermissibly discriminatory." Child II. 212 F.3d at 1091. In addition to showing disparate impact. a "claimant alleging `gerrymander' must be able to show the absence of a neutral, secular basis for the lines government has drawn." Gillette, 401 U.S. at 452. Plaintiff has not made such a showing here. "The Court agrees with the Eighth Circuit that Congress drew its lines in section 4454 for neutral. secular reasons: to prevent fraud and abuse and to ensure effective administration of the law. The requirements of section 4454, and. in particular. the requirement that the services be provided in a non-medical care institution, avert the possibility that an institution which provides both medical and spiritual services will manage to evade the normal medical oversight requirements, endangering patients.
In Droz v. C.I.R., 48 F.3d 1120 (9th Cir. 1994). for example, the plaintiff challenged an exemption to the Social Security Act for those who object to the Social Security system and belong to a religious organization with its own welfare system. Plaintiff refused to pay self-employment Social Security taxes on the basis of his religious beliefs but he did not qualify for the exemption because he did not belong to a religious organization. The Ninth Circuit refused to apply strict scrutiny, It held that the exemption "is not a promotion of some religions over others. It is a religious exemption narrowly drawn to maintain a fiscally sound Social Security system and to ensure that all persons are provided for, either by the Social Security system or by their church." Id. at 1124.
Section 4454 similarly does not involve "a promotion of some religions over others." There simply is no evidence, as there was in Larson, that the requirements of the statute were drafted to favor one religion. or group of religions. over others, or that the statute in fact favors Christian Science over other religions. See Larson, 456 U.S. at 254-5 5 (finding that the legislative history revealed an intention to favor certain established religions over other not as "substantial" religions). Accordingly. the Court will apply the Lemon test rather than strict scrutiny.
2. Lemon Analysis
Under the three-part Lemon test. a law is permissible only if: (1) it has a secular legislative purpose. (2) its primary effect is neither to advance nor to inhibit religion. and (3) it does not foster excessive government entanglement with religion. See Lemon, 403 U.S. at 612-13.
a. Secular Purpose
"`The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion.' A governmental intention to promote religion is clear when the State enacts a law to serve a religious purpose." Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (internal quotations omitted); see also Agostini v. Felton, 521 U.S. 203, 222-23 (1997) (stating that under the first prong of the Lemon test the Court continues "to ask whether the government acted with the purpose of advancing or inhibiting religion"). A court may invalidate a statute on this basis only if the statute is motivated wholly by an impermissible purpose. See Bowen v. Kendrick, 487 U.S. 589, 602 (1988).
At first glance it appears that section 4454 serves a religious purpose; namely, to accommodate those whose genuinely-held religious beliefs preclude them from receiving medical care and therefore also prevent them from receiving the Programs' non-medical benefits. The Supreme Court has recognized, however, that the alleviation of significant governmental interference with the free exercise of religion can constitute a secular legislative purpose. "[W]here . . . government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, [there is] no reason to require that the exemption come packaged with benefits to secular entities." Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987). "[T]he Constitution allows the State to accommodate religious needs by alleviating special burdens. . . . [it] "do[es] not require the government to be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice." Kirvas Joel, 512 U.S.at 705.
In Sherbert v. Verner. 374 U.S. 398 (9163), for example, the Supreme Court held that legislation which forced an individual to choose between receiving unemployment compensation and following his religious beliefs, and in particular. his belief that he could not work on a Saturday. violated the Free Exercise Clause. Id. at 404. In a subsequent unemployment compensation case the Supreme Court confirmed that "[w]here the state conditions receipt of an important benefit upon conduct proscribed by a religious faith,. . . thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists." Thomas v. Review 13d. of Indiana Employment Security Division, 450 U.S. 707. 717-18 (1981).
Here, the express purpose of section 4454 is to accommodate a burden upon those whose religious convictions are inconsistent with the receipt of medical care, and, in particular. the poor and elderly who have contributed to the Programs but whose religious beliefs preclude them from receiving any of the Programs' benefits. Congress intended the statute to provide "needed nonmedical nursing services to poor and elderly Americans who have contributed to the Medicare and Medicaid systems, without requiring them to violate their sincerely held religious beliefs. . . . it avoids the unfairness of requiring these Americans to pay taxes, including payroll taxes to the Medicare Trust Fund, for years without being able to receive any benefits." H.R. Conf. Rep. No. 105-217, 768, 1997 U.S.C.C.A.N. 176, 389. As the Eighth Circuit noted, "[t]he pressure to violate religious convictions is especially acute under Medicaid, which often represents the only source of health care for indigent persons." CHILD II, 212 F.3d at 1093; see also Child II, 938 F. Supp. at 1480 (finding that the exemption for Christian Scientist sanatoria "operates to remove a burden to the free exercise of Christian Science religion").
The fact that the government does not contend that the burden accommodated by section 4454 is so great as to require accommodation under the Free Exercise Clause — as was the case in Sherbert and Thomas — does not mean that the statute lacks a secular purpose. The government may constitutionally accommodate religious burdens under the Constitution even when the Free Exercise Clause does not mandate that it do so. See Amos, 483 U.S. at 334 ("the limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Establishment Clause") (quoting Walz v. Tax Commission. 397 U.S. 664. 673 (1980)).
Plaintiff' responds that the burden allegedly alleviated here is not the type of burden that may constitutionally permit an accommodation of religious beliefs. The government has not created any burden, he argues, instead, it has created a benefit program in which certain individuals, for religious reasons or otherwise, choose not to participate. lie argues further that the unemployment compensation cases have been limited to the proposition that "where the state has in place a system of individual exemptions, it may not refuse to extend that system to cases of `religious hardship' without compelling reason," Employment Division v. Smith, 494 U.S. 872, 884 (1989), and that it is undisputed that the Programs do not have a system of individual exemptions.
Plaintiffs first argument is refuted by Sherbert and its progeny. The same argument can be made with respect to unemployment compensation benefits; the government has not created a burden, instead it has created a benefit which certain individuals choose not to receive because of their religious convictions. The Supreme Court has necessarily rejected this argument by holding that the "choice" created by the government — violate religious convictions or forfeit benefits — violated certain individuals' free exercise rights.
Moreover, the Smith Court's statement apparently limiting the unemployment cases to benefit programs with "individual exemptions" is unrelated to the issue of whether an inability to receive a government benefit is a burden which Congress may constitutionally alleviate. The question in Smith was whether the government was required to accommodate the religious belief; the Court limited its prior holdings of mandated accommodation to those situations in which the government program already has a system of individual exemptions. Id. at 884. Smith in no way suggests that the government does not have a secular legislative purpose when it accommodates an inability to receive government benefits because of religious belief. Accordingly, section 4454 satisfies the first prong of the Lemon test.
b. Primary Effect
To survive an Establishment Clause challenge, a statute's primary effect must not be to advance or inhibit religion. A religious accommodation, such as section 4454, impermissibly advances or inhibits religion if it (1) imposes a substantial burden on nonbeneficiaries or (2) is not designed to alleviate a government-imposed burden that might significantly deter adherents of a particular faith from conduct protected by the Free Exercise Clause, that is, it provides a benefit to religious believers without providing a corresponding benefit to a substantial numbers of nonbelievers. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 15, 18 n. 8 (1989). As the Supreme Court has explained:
When government directs a subsidy exclusively to religious organizations that is not required by the Free Exercise Clause and that either burdens nonbeneficiaries markedly or cannot reasonably be seen as removing a significant state-imposed deterrent to the free exercise of religion . . . it "provide[s] unjustifiable of assistance to religious organizations" and cannot but "convey a message of endorsement to slighted members of the community."489 U.S. at 15 (1989) (quoting Amos. 483 U.S. at 348).
In Texas Monthly, for example, the Court held that a sales tax exemption for religious periodicals that consist wholly of writings promulgating the teaching of the faith could not be viewed as anything but "state sponsorship of religious belief." The statute burdened nonbeneficiarics by requiring them to pay more taxes and it did not alleviate any government-imposed burden as there was no evidence that imposing the sales tax would offend the religious beliefs of the subscribers or inhibit religious activity. 489 U.S. at 14-15, 18; see also Estate of Thornton v. Caldor, 472 U.S. 703, 707-09 (1985) (holding that statute which unconditionally guaranteed employees the right not to work on their Sabbath unreasonably burdened nonbeneficiaries and there fore impermissibly advanced religion).
Section 4454 does not impose a burden on nonbeneficiaries by excessively increasing their taxes or otherwise. There is no competent evidence before the Court that those who receive their care in a RNHCI cost taxpayers more than those who receive their care in medical facilities. The absence of such evidence is unsurprising given that these patients are not receiving any medical care, including physician services and costly medical procedures. Even if treatment in a RNHCI were more expensive, however, the effect on the individual taxpayer would be de-minimis. As of 1999, nineteen Christian Science sanatoria received payment under Medicare, at a cost of approximately $8 million annually. See 64 Fed. Reg. at 67044. Religious accommodations are not unconstitutional merely because they place a slight cost on others. See Caldor, 472 U.S. at 709-10: TWA v. Hardison, 432 U.S. 63. 84-85 (1977).
The crux of plaintiffs argument is that section 4454 does not alleviate a significant burden imposed by the government but instead bestows a special benefit on Christian Scientists and therefore impermissibly advances religion. The Programs expressly exclude from their coverage "custodial care." which is defined as any care that is not ordered by a physician and that is not "so inherently complex" that it must be performed or supervised by professionals. See 42 C.F.R. § 411.15(g); 42 C.F.R. §§ 409.31, 409.32. These services, however, are not considered custodial if they are administered as part of a professionally-supervised program of medical care. See 42 U.S.C. § 1395f(a)(2). Since the services provided to patients at RNHCIs are not physician-supervised, plaintiff argues, they are by definition "custodial" and therefore excluded from coverage. Plaintiff's position is perhaps best articulated by Judge Lay, the dissenter in CHILD II:
The entire nature of Medicare and Medicaid is to provide medical services in a manner managed by medical criteria and qualifications and governed by the medical profession. RNHCIs and the care they provide are, by definition, "nonmedical." That which is defined as not being X cannot logically be a subset of X. . . . RNHCI patients receive stand-alone nonmedical services and are reimbursed for them because of their specific religious beliefs; non-religious objectors and custodial care patients receive stand-alone nonmedical services and are not reimbursed for them because of their lack of specific religious beliefs. This comparison reveals that the receipt of stand-alone nonmedical benefits is a special benefit to a single religious group.
CHILD II, 212 F.3d at 1107-8 (Lay, J., dissenting).
Plaintiffs argument. however, downplays a crucial condition upon receipt of benefits for services and supplies provided in a RNHCI: the RNHCI is reimbursed only for the skilled nonmedical nursing services for which medical hospitals are also reimbursed. See 42 U.S.C. § 1395i-5(a)(2) (payments are made for "services furnished to an individual in [a RNHCI] only if the individual would qualify for benefits . . . if the individual were an inpatient or resident in a hospital skilled nursing facility that was not [an RNHCI]." Rather than being "special benefits" these benefits are the same as some of the funded inpatient services provided to similarly situated people who receive care in medical institutions. Section 4454's exception thus provides RNHCI patients with but a "subset" of the financial support most other Program participants receive. Since there is no special benefit, the exemption does not convey a message of endorsement and does not encourage non-believers to alter their religions beliefs. See Texas Monthly, at 15, 18 n. 8.
Finally, plaintiff cites Agostini v. Felton 521 U.S. 203 (1997), for the proposition that section 4454 fails under the primary effect prong of the Lemon test because it involves government funding of religious institutions resulting in the inculcation or indoctrination of religious beliefs, and because it identifies beneficiaries by religious belief. Id. at 223-30, 230-33. Agostini involved the constitutionality of a New York program that sent public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to a congressionally mandated program; it did not involve an accommodation of religion. Id. at 208. "This distinction is crucial. If, as plaintiff contends, Agostini means that beneficiaries can never be defined by religion then nearly all religious accommodations are unconstitutional. The Supreme Court and the Ninth Circuit, however, have upheld many such accommodations. See, e.g., Amos, 483 U.S. at 329 n. 1, 338 (exemption of religious organizations from Title VII); Droz, 48 F.3d at 1124 (upholding exemption to the Social Security Act for those who object to the Social Security system and belong to a religious organization with its own welfare system). As the Amos Court noted, the Supreme Court "has never indicated that statutes that give special consideration to religious groups are per se invalid. That would be contrary to the teachings of [the Court's] cases that there is ample room for accommodation of religion under the Establishment Clause." 483 U.S. at 338. Thus, the Court agrees with the Eighth Circuit that the identification of the beneficiary analysis is inapposite.
Agostini, however, is not completely irrelevant to the Court's analysis. The nature of the accomodation here — Program benefits paid to a religious institution — is somewhat similar to the program at issue in Agostini. Thus, there is still a concern that the accommodation — the payment of public funds to a religious institution — could result in the indoctrination of religion. See Agostini, 521 U.S. at 203 ("government inculcation of religious beliefs has the impermissible effect of advancing religion"). The Court will address this argument, infra, with respect to plaintiffs as-applied challenge.
In sum, section 4454 does not have the effect of advancing religion by encouraging individuals to convert to Christian Science or any other religion which rejects medicine so that the individual can receive benefits for non-medical nursing services. As the services and supplies the Program pay for at RNHCIs are the same as the services and supplies paid for at qualified medical facilities, section 4454 does not provide a "special benefit" to those for whom medical care is inconsistent with their religious beliefs. Instead, it accommodates their genuinely-held religious beliefs by allowing them to receive benefits for the non-medical services that are part of the Programs funded services.
c. Excessive Entanglement
Plaintiff also argues that Section 4454 fails under the excessive government entanglement with religion prong of the Lemon test. In Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982), the Supreme Court struck down a Massachusetts statute that gave churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius of the church or school. The statute was constitutionally flawed because it delegated discretionary government powers to religious bodies and because it failed to guarantee that the delegated power would be used for neutral purposes. 459 U.S. at 125-26; see also Kiryas Joel, 512 U.S. at 696-97 (explaining that the prohibition on excessive entanglement means, at a minimum, that "a State may not delegate its civic authority to a group chosen according to a religious criterion").
Plaintiff claims that section 4454 violates this prohibition because it "effectively delegates coverage decisions under the programs to the RNHCI." Plaintiffs Memorandum in Support at Summary Judgment at 25. Plaintiff notes that lay personnel, not physicians, make the initial decision whether to admit a person into a RNHCI. In addition, RNHCIs set their own quality assurance standards, utiliiation review plan standards, and measures of performance. See id. at 25-26. Although the umbrella provisions of 42 U.S.C. § 1395x(§)(3)(A)(ii) and (13)(ii) allow the Secretary to require "sufficient information" about a person's condition to assess whether the services and supplies provided by the RNHCI qualify for coverage, another provision prevents the Secretary from requiring any medical tests or examinations if the person objects on religious grounds. See 42 U.S.C. § 1395x(§)(3)(A)(i). "Saying both that you cannot require medical analysis and that, despite this. the Secretary can demand sufficient evidence to make a medical determination, seems insincere at best." CHILD II. 212 F.3d at 1109 (Lay, J., dissenting).
Plaintiff's arguments fall short. First, while a RNHCI makes an initial recommendation regarding coverage," see 42 U.S.C. § 1395x(§)(1)(H)-(J), the Secretary or a fiscal intermediary, such as a private insurance company, retains plenary review to determine whether items and services provided are covered, excessive or fraudulent. Id. § 1395x(§)(3)(B)(ii). Second, while the Secretary cannot force RNHCI patients to undergo medical tests, this limitation does not restrict the Secretary's ability to require sufficient information as a condition to receipt of benefits. See 42 U.S.C. § 1395x(§)(3)(A)(ii). Third, the fiscal intermediary audits the activities of RHNCIs and issues a "notice of amount of program reimbursement concerning submitted claims. 42 C.F.R. § 405.1803. In Larkin, by contrast, churches were subject to no review at all — the statute "substitute[d] the unilateral and absolute power of a church for the reasoned decisionmaking of a public legislative body acting on evidence and guided by standards." Larkin, 459 U.S. at 127. No such substitution is present here. The Court cannot conclude that the unavailability of certain medical information inhibits the Secretary's review of RNHCIs to the point that the decisionmaking rests absolutely with RNHCIs and results in an "excessive" entanglement with religion.
C. As-Applied Challenge
Plaintiff argues in the alternative that section 4454 violates the Establishment Clause as applied to Christian Science sanatoria; plaintiff contends the sanatoria are "pervasively sectarian" and therefore Congress may not fund their activities. The Establishment Clause limits the governments power to fund pervasively sectarian institutions. "The reason for this is that there is a risk that direct government funding, even if it is designated for specific secular purpose, may nonetheless advance the pervasively' sectarian institution's `religious mission.'" Bowen v. Kendrick. 487 U.S. 589, 610 (1988). A pervasively sectarian institution is one in which religion so pervades its functions that the institution is unable to separate the funded secular activities from its religious mission. See id. Conversely, an institution is not pervasively sectarian if its primary function is secular and can be effectively separated from its religious activity. See Roemer v. Board of Public Works, 426 U.S. 736, 755 1977). The Supreme Court has struck down aid to religiously affiliated institutions in two circumstances: (1) where aid is directed to specifically religious activities, and (2) where the aid given to a pervasively sectarian institution could be diverted to religious ends. See id. at 736, 755; Hunt v. McNair, 413 U.S. 734, 746 (1973). The Court has never applied the "pervasively sectarian" label to any institutions aside from parochial schools, largely because these schools are uniquely likely to direct government funds toward religious indoctrination. See Bowen, 487 U.S. at 611, 613.
Plaintiffs as-applied challenge. like his facial challenge, fails as a matter of law on the record before the Court. First, as is set forth above, the Programs' funds are not directed to religious activities; instead, the Programs only pay for secular services, such as room and board, physical nonmedical care, and nutritional services. Second, the Court agrees with the Eighth Circuit that Christian Science sanatoria are not "pervasively sectarian." See Child II, 212 F.3d at 1100. While the record reflects that Christian Science nurses hope to aid in the spiritual healing process. their religious motivation does not affect the essentially secular nature of their activities. See Bowen., 487 U.S. at 613, 621. Third, the Supreme Court has held that the government may fund health care services in pervasively sectarian institutions without running afoul of the requirement that it not fund religious activities. See Wolman v. Walter, 433 U.S. 229, 242 (1977) (upholding public funding of health services in parochial schools), overruled in part on other grounds, Mitchell v. Helms, 530 U.S. 793 (2000). As the services provided by the Christian Science sanatoria are essentially health care services, albeit without any medicine, the governments funding of these services does not have the effect of advancing the Christian Science religion.
CONCLUSION
For the foregoing reasons, the Court concludes that section 4454 does not establish religion, but instead facilitates Congress's goal of protecting the interests of religious minorities while at the same time fulfilling the "governmental obligation of neutrality in the face of religious differences." Sherbert, 374 U.S. at 409. The Court's conclusion is consistent with the traditional "presumption in favor of the constitutionality of statutes enacted by Congress," a presumption that is particularly appropriate "when, as here, Congress specifically considered the question of the Act's constitutionality." Bowen, 487 U.S. at 617 see also 143 Cong. Rec. S6322 (daily ed. June 25, 1997) (statement of Sen. Kennedy); 143 Cong. Rec. S8447 (daily ed. July 31, 1997) (statement of Sen. Hatch). Accordingly, the motions for summary judgment of defendant and defendant-intervener are GRANTED and plaintiff's motion for summary judgment is DENIED.
IT IS SO ORDERED.