MEMORANDUM OPINION AND ORDER
Introduction
Plaintiffs challenge the constitutionality of certain exemptions for Christian Science sanitoria under Medicare and Medicaid, claiming that Congress’ creation of such exemptions violates the Establishment Clause of the First Amendment. Plaintiffs have filed a Motion for Summary Judgment, and both Defendants and Defendant-Intervenor The First Church of Christ, Scientist (“the Church”) have submitted Cross-Motions for Summary Judgment. For the reasons set forth below, the Cross-Motions brought by Defendants and the Church will be denied and Plaintiffs’ Motion for Summary Judgment will be granted.
*1469 Background
The relevant facts are largely undisputed. The First Church of Christ, Scientist was founded by Mary Baker Eddy in 1879 and has grown to include nearly 3,000 congregations worldwide. Fleming Supp.Aff., Ex. T, at 278-79; Swan Aff. ¶ 3. A primary tenet of Christian Science is the belief that disease is caused by sin and mortal frailties; accordingly, physical healing is believed to be dependent on prayer instead of medical technology. Fleming Supp. Aff., Ex. T, at 279. A Christian Scientist is not rigidly compelled by the Church to employ purely spiritual means for healing; yet the concept of spiritual healing is central to the religion. Id. Christian Science practitioners of spiritual healing are certified by the Church and listed in the Christian Science Journal, a periodic publication of the Church. Id.; Swan Aff. ¶ 7. The Church has established a process for certifying sanitoria which practice Christian Science healing methods; although Christian Science does not teach that medical care will cure the body, it is undisputed that these institutions provide bed and board as well as general personal care. See, e.g., HCFA Christian Science Supplement §§ CS-200(D); 204(A).
Plaintiffs’ Challenges to Medicare Act Exemptions
Part A of the Medicare Act, 42 U.S.C. §§ 1395 et seq., creates a comprehensive health insurance program for the aged and disabled. The Act pays for hospital care and for post-hospitalization care provided by skilled nursing facilities, home health agencies, and hospices. 42 U.S.C. § 1395c. Payments under the Act are financed through a federal income tax on self-employment income (the Self-Employment Contributions Act) and federal employment taxes on wages paid to employees (mainly under the Federal Insurance Contributions Act, or “FICA”). Part B of the Medicare Act establishes a voluntary insurance program providing supplementary coverage for other medical expenses, such as physicians’ fees and outpatient therapy. See 42 U.S.C. § 1395j, 42 U.S.C. § 1395k.
Plaintiffs challenge certain subsections and regulations of Part A of the Medicare Act which provide for the payment of nursing care and related services in Christian Science sanitoria. They note that most providers of health care under the Medicare Act are required to meet statutory and regulatory standards from which Christian Science sanitoria are exempted, and these exemptions form the basis of their claim under the Medicare Act.
First, Plaintiffs challenge the inclusion of Christian Science sanatoria in the Medicare Act definition of “hospital” in 42 U.S.C. § 1395x(e):
The term “hospital” also includes a Christian Science sanatorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Massachusetts, but only with respect to items and services ordinarily furnished by such institution to inpatients, and payment may be made with respect to services provided by or in such an institution only to such extent and under such conditions, limitations, and requirements (in addition to or in lieu of the conditions, limitations, and requirements otherwise applicable) as may be provided in regulations.
Similarly, Plaintiffs challenge the inclusion of sanitoria in the definition of “skilled nursing facility” under 42 U.S.C. § 1395x(y)(l), which essentially mirrors the language quoted above. These provisions allow sanitoria to be eligible for benefits flowing from the Medicare and Medicaid programs.
Next, Plaintiffs challenge the exemption of Christian Science sanitoria from the requirements of 42 U.S.C. § 1320c. This section requires “quality control peer review organizations” to review the performance of physicians in the area, 42 U.S.C. § 1320c~3, requires practitioners to assure their patients that services will be provided in an economically efficient manner and only when medically necessary, 42 U.S.C. § 1320c-5, and sets limits on the disclosure of patient information, 42 U.S.C. § 1320c-9. However, “[t]he provisions of this part shall not apply with respect to a Christian Science sanitorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Massachusetts.” 42 U.S.C. § 1320e-ll. The accompanying regulations also exempt Christian Science sanitoria from the more detailed *1470 regulatory requirements of peer review organizations. 42 C.F.R. § 466.1. 1 Absent the provisions allowing sanitaria to come within the definition of “hospital” and “skilled nursing facility,” and absent the provisions exempting them from the extensive regulations found in 42 C.F.R. §§ 482 and 483, Church-certified institutions would have to meet a number of requirements relating to care by licensed physicians and nurses in order to qualify for federal aid under the Act.
Plaintiffs’ Challenges to Medicaid Act Exemptions
Plaintiffs also challenge certain provisions of the Medicaid Act, found at 42 U.S.C. §§ 1396 et seq. The Act is designed to provide medical assistance to impoverished individuals who are aged, blind, or disabled, or are members of families with dependent children. 42 U.S.C. § 1396. The program is jointly financed by the federal and state governments, and is administered by the states. 42 U.S.C. § 1396a, 42 U.S.C. § 1396b(a), 42 U.S.C. § 1396d.
First, Plaintiffs attack the exclusion of Christian Science sanitaria from requirements imposed by state plans for medical assistance: “The provisions of paragraphs (9)(A), 2 (31), 3 and (33) 4 and of section 1396b(i)(4) 5 of this title shall not apply to a Christian Science sanatorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Massachusetts.” 42 U.S.C. § 1396a(a). Plaintiffs attack only 42 U.S.C. § 1396a(a), and not the above-referenced provisions.
Plaintiffs also challenge a variety of regulations promulgated under the Act which are generally designed to ensure that sanitaria qualify for payment under the Medicaid Act for appropriate services: 42 C.F.R. § 431.610(b), 6 42 C.F.R. § 440.155(b)(1), 7 42 C.F.R. § 440.170(b), 8 42 C.F.R. § 440.170(c), 9 *1471 and 42 C.F.R. § 442.12(b). 10
In addition, Plaintiffs attack regulations which exclude Christian Science sanitoria from definitions of “skilled nursing facilities” (42 C.F.R. § 456.251) and “intermediate care facilities” (42 C.F.R. § 456.351 and 42 C.F.R. § 456.601). Such exclusions remove sanitoria from compliance with various certification requirements for medical care, with which other institutions must comply in order to receive payment under the Medicaid Act. Defendants note, however, and Plaintiffs do not dispute, that these particular regulations have been largely superseded by changes to the “utilization review plan” requirements in both the Medicare and Medicaid Acts. Mem. in Supp. of Defs.’ Mot. for Summ.J. and in Opp’n to Pis.’ Mot. for Summ.J. 9 n. 9.
Finally, Plaintiffs challenge both a statutory provision, 42 U.S.C. § 1396g(e)(l), and a regulatory provision, 42 C.F.R. § 431.701, which exempt Christian Science sanitoria from the definition of “nursing home,” allowing them to receive payments under Medicaid and Medicare without complying with state requirements for the licensing of nursing home administrators. 11
In sum, Plaintiffs challenge the constitutionality of fifteen provisions of the Medicare and Medicaid Acts and the accompanying regulations.
Procedural History
Plaintiffs seek: 1) a declaratory judgment adjudging the above statutory and regulatory provisions to be null and void; 2) preliminary and permanent injunctions restraining Defendants from enforcing the exemptions and paying Medicare or Medicaid funds to Church-certified sanitoria; and 3) Plaintiffs’ costs of suit and attorneys’ fees. Compl. at 23-24. Plaintiffs’ Motion for Summary Judgment, as well as the Complaint, contend that the challenged provisions violate the Establishment Clause of the First Amendment in four respects: 1) they give aid to pervasively sectarian institutions which exist solely to promote Christian Science spiritual treatment; 2) they represent a “sect-specific direct subsidy” of Christian Science religious rituals; 3) they delegate to the Church the power to operate, list and certify institutions which will qualify for favorable treatment under the Acts; and 4) they constitute a governmental preference, both real and symbolic, for the practice of Christian Science spiritual treatment.
The Church was allowed to intervene as a Defendant.
Defendants and the Church have also filed Motions for Summary Judgment. The Minnesota Civil Liberties Union as amicus curiae was allowed to file two briefs in support of Plaintiffs’ Motion for Summary Judgment. The hearing on the three outstanding Motions was held before the undersigned on June 4,1996.
Discussion
I. Summary Judgment Standard
Federal Rule of Civil Procedure 56 states:
[summary] judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions *1472 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). Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the party not moving for summary judgment.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250,
The party moving for summary judgment bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett,
II. Establishment Clause Review—The Proper Standard
When an act of government is challenged under the Establishment Clause,
12
the familiar three-pronged test announced in
Lemon v. Kurtzman,
Yet the use of the
Lemon
test in Establishment Clause cases was limited by
Larson v. Valente,
In
Larson,
the Court struck down a Minnesota law which provided that only those religious organizations receiving more than half of their total contributions from members or affiliated organizations were exempt from registration and reporting requirements found in the Minnesota Charitable Solicitation Act. The Act provided for a system of registration and disclosure for charitable organizations; prior to 1978, all religious organizations had been exempted from the Act’s requirements. The Court applied strict scrutiny to the law because it demonstrated a denominational preference: older, more established churches were given an advantage over newer religions which depended more heavily on contributions from the general public.
*1473
Bost-Larson
jurisprudence indicates that dissension exists over whether
Larson
should be applied in conjunction with or completely apart from
Lemon;
notably, the
Lemon
test has also suffered criticism, but has never been overruled. The majority in
Lynch v. Donnelly,
Here, the contested provisions explicitly address institutions of a single religion. Defendants and the Church attempt to avoid the higher standard of
Larson
altogether by noting that
Larson
did not involve an effort to accommodate religious beliefs, but rather to disadvantage a particular group. Defs.’ Reply in Supp. of Defs.’ Mot. for Summ.J. 12; Reply Brief in Supp. of Mot. of Def.-Intervenor First Church of Christ, Scientist, for Summ.J., and in Opp’n to Pl.’s Mot. for Summ.J. 8. Nowhere in
Larson
or the subsequent eases are these distinguishing factors; instead, the sole distinguishing factor
Larson
espouses is a differentiation between religious groups on the face of a statute. Nor does case law distinguish between the application of
Larson
(a challenge under the Free Exercise Clause) to Establishment Clause challenges as opposed to cases under the Free Exercise Clause. This Court reads the decision in
Hernandez v. C.I.R.,
Since such differentiation is present here in the context of a statutory exemption, the strict scrutiny test of Larson must be applied. The inquiry becomes whether the Medicare and Medicaid exemptions for Christian Scientists are “closely fitted” to the furtherance of a “compelling” governmental interest.
III. The Government’s Interest
A. Background of the Medicare and Medicaid Acts
A logical place to commence the inquiry of whether the government’s interest in the challenged provisions may be termed “compelling” is to look at the purpose of the Acts and the provisions themselves. Both Acts guarantee their beneficiaries (which, together, include or will eventually include most of this country’s population) the freedom to select a health care provider. The Medicare Act states: “Any individual entitled to insurance benefits under this subchapter may obtain health services from any institution, agency, or person qualified to participate under this subchapter if such institution, agency, or person undertakes to provide him such services.” 42 U.S.C. § 1395a. The Medicaid Act likewise provides: “... any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community, pharmacy, or person, qualified to perform the service or services required ... who undertakes to provide him such services____” 42 U.S.C. § 1396a. The Acts also forbid governmental attempts to compel a certain type or manner of health care services. See 42 U.S.C. § 1395a; 18 42 U.S.C. § 1396f. 19
More specifically, the legislative history demonstrates that the challenged provisions of the Acts were the product of careful congressional deliberations. To its credit, Congress recognized the inherent tension between the Establishment Clause and the Free Exercise Clause. If Congress decided to include no religious exemptions to the Acts, they would likely face a free exercise challenge, as they would force members of *1475 religious groups to contribute to a health benefit fund from which they would be barred from participation because of their religious beliefs. 20 As this suit shows, it is often extremely difficult for Congress to navigate between the Scylla and Charybdis of these two Clauses. 21
During the hearings leading up to the passage of the Acts, representatives of Christian Science asked that Congress provide an exemption from the portion of social security and railroad retirement taxes which would pay for medical health insurance, since their religion did not employ medical treatment and care. Hearings on H.R. 4222 Before the House Ways & Means Comm., 87th Cong., 1st Sess. 728-29 (1961) (testimony of Dr. J. Boroughs Stokes). Congress instead opted to accommodate Christian Science in another way, by, first, including Christian Science sanitoria and nurses under the programs, and, second, excusing them from certain requirements tied to medical treatment not undertaken by Christian Science nurses or in Christian Science sanitoria.
Aside from the Acts themselves, two segments of legislative history illustrate the congressional intent behind this dual accommodation. First, the Senate Report accompanying the Social Security Amendments of 1965 (providing for the Medicare Act) stated:
Christian Science sanatoriums that are operated or listed and certified by the First Church of Christ, Scientist, in Boston, could participate in the program as “hospitals.” The participation of these institutions and the payment for items and services furnished by them would be subject to such conditions, limitations, and requirements as may be provided in regulations. In general, however, the committee intends that payments to Christian Science sanatoriums would cover costs of services ordinarily furnished by these sanatoriums to patients which are comparable to those for which payment could be made to hospitals and intends these sanatorium services to be a substitute for, and not an addition to, medical services that might be furnished to a person if his religious beliefs were not contrary to the use of the usual facilities.
S.Rep. No. 404, 89th Cong., 1st Sess. (1965), reprinted in 1965 U.S.C.C.A.N.1943, 1971.
Seven years later, in considering the Social Security Amendments of 1972, the House Report laid out the rationale for exempting sanitoria from generally applicable medical care requirements:
Your committee believes that Christian Science sanatoriums, which do not actually provide medical care, should not be required to have a skilled nursing home administrator licensed by the State, to maintain an organized nursing service under the direction of a registered nurse, to maintain detailed medical records, or to have diagnostic and other service arrangements with general hospitals. The bill would therefore exempt Christian Science sanatoriums from the requirements for a licensed nursing home administrator and other inappropriate medical requirements of the medicaid program. Such sanitoriums would be expected to continue to meet all applicable safety standards.
H.R.Rep. No. 231, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 4989, 5106.
B. Compelling Interests
Plaintiffs first argue under the auspices of the “purpose” prong of Lemon, that Congress has no “legitimate, valid secular purpose in lowering or eliminating standards for some of the elderly or needy based upon a standardless certification” by the Church. Pl.’s Mem. in Supp. of Mot. for Summ.J. 11-12. Then arguing under Larson, Plaintiffs contend that the government “has no compelling interest in reimbursing non-medical methods of care that are not state-licensed and have no scientific data indicating their therapeutic or prophylactic effectiveness.” *1476 Pl.’s Combined Reply Mem. in Supp. of Their Mot. for Summ.J. and Responsive Mem. to Defs.’ Mots, for Summ.J. 9. Of course, these assertions do not address the obvious concern of Congress in passing these exemptions: forcing Christian Scientists to choose between: 1) following their religion and enduring financial hardship; or 2) violating an apparently deeply held belief and receiving Medicare and Medicaid benefits. Congress instead made an accommodation to avoid such a choice, allowing Christian Scientists to participate in these otherwise available public programs, to which they have almost certainly contributed part of their wages.
The Court will now address whether this interest may properly be labelled “compelling.”
1. Accommodations Sometimes Constitutionally Required
Accommodations of religion have been held to be
required
by the Free Exercise Clause in certain situations. In
Thomas v. Review Board of Indiana Employment Security Division,
Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.
Similarly, the Court has held that a refusal to award unemployment compensation benefits when an applicant declines to work certain hours for valid religious reasons violates the Free Exercise Clause.
See Hobble v. Unemployment Appeals Comm’n of Florida,
2. Accommodation Statutorily Required
At oral argument, counsel for Plaintiffs claimed that
Thomas, Hobbie,
and
Sherbert
had no application outside the unemployment compensation arena. The Supreme Court has indeed expressed such doubt. In
Employment Division, Department of Human Resources of Oregon v. Smith,
*1477 In 1993, Congress expressly disapproved of the holding of Smith in the passage of the Religious Freedom Restoration Act (“RFRA”). In the Act, Congress found that:
(4) in Employment Division v. Smith,494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing pri- or governmental interests.
42 U.S.C. § 2000bb(a).
Congress defined its purposes in passing the Act:
(1) to restore the compelling interest test as set forth in Sherbert v. Verner,374 U.S. 398 ,83 S.Ct. 1790 ,10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder,406 U.S. 205 ,92 S.Ct. 1526 ,32 L.Ed.2d 15 (1972) and to guarantee its application in all eases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to a person whose religious exercise is substantially burdened by government.
42 U.S.C. § 2000bb(b).
In furtherance of this purpose, the RFRA provides that “[gjovernment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” except if it demonstrates that the restriction is in furtherance of a compelling governmental interest, and is the least restrictive means of advancing that interest. 42 U.S.C. § 2000bb-l. Congress also expressed its intent not to interfere with Establishment Clause jurisprudence:
Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the “Establishment Clause”). Granting government funding benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter.
42 U.S.C. § 2000bb-4. 23
Thus, while the RFRA by its very language has no direct impact on this Establishment Clause case, it demonstrates the importance Congress attaches to the free exercise of religion by extending the
Sherbert
line of cases to all burdens on free exercise. It must be pointed out, however, that this extension of
Sherbert
has not been held to be constitutionally mandated, but represents a “legislatively mandated accommodation of the exercise of religion.”
EEOC v. Catholic University of America,
In any case, it is difficult to square the dicta in
Smith
with recent Supreme Court precedent which recognizes “the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice.”
Kiryas Joel,
— U.S. at -,
*1478
It is even more difficult to harmonize the dicta in
Smith
with precedent from this Circuit. In
Quaring v. Peterson,
Finally, unemployment compensation laws and the Acts in question are very similar in nature, even considering that decisions to award or deny unemployment compensation are often context-specific—they are public benefits programs widely available to the public.
Congress has indicated that it favors the accommodation of the exercise of religion as a very important interest. This interest is magnified when the accommodation is made to ensure participation in a comprehensive welfare system.
See In re Young,
3. Accommodation Required by the Free Exercise Clause is Not Co-Extensive with Permissible Actions Under Establishment Clause
This is not to say, however, that the present accommodation is mandated by the Free Exercise Clause. The exemptions here would not be considered constitutionally compelled by the Free Exercise Clause, since, absent the Christian Science exemptions, the Medicare and Medicaid Acts are laws “entirely neutral in [their] general application” and concern taxes imposed nationwide.
United States v. Lee,
Based on this principle, this Court determines that the interest in accommodating religious beliefs in the context of generally available public welfare programs, in order to ensure that all those who pay taxes to support the programs may benefit from them, is a sufficiently compelling interest to survive the first prong of strict scrutiny review. The *1479 Court must now determine whether the exemptions are “closely fitted” to the furtherance of that interest, in light of the principle of neutrality among religions.
IV. Close Fit Is Absent
Notably, the Minnesota statute at issue in
Larson,
distinguishing between religions on the basis of their revenue sources, was not struck down because of the lack of a compelling interest. The Court assumed,
arguendo,
that the state’s interest in “protecting its citizens from abusive practices in the solicitation of funds for charity” was sufficiently “compelling.” In doing so, the Court relied on the fact that the statute, “viewed as a whole, has a valid secular purpose.”
Yet, when it comes to determining a close fit, this Court cannot view the Medicare and Medicaid Acts holistically. In the context of the overall Medicare and Medicaid programs, the accommodation’s impact is of course very small—more than 99.9% of all institutions receiving funds are not Church-certified. Ault Decl. ¶¶ 3—4. Yet no other group, religious or non-religious, is entitled to the exemptions declared by the statute on its face. The Larson Court plainly stated that “our inquiry must focus more narrowly, upon the distinctions drawn by § 309.515, subd. 1(b) itself: Appellants must demonstrate that the challenged fifty per cent rule is closely fitted to further the interest that it assertedly serves.” Id.
A. The Exemptions Are Too Narrowly Confined
This Court is faced with two programs which, while providing generally available public benefits, authorize exemptions to the programs in expressly sectarian terms. The exemptions here address only Christian Science nurses and sanatoria. This is the narrowest of categories. Standing alone, the specificity of the exemption is very significant. Of course, the compelling interest is the accommodation of the free exercise of religion in the Medicare and Medicaid programs, not the accommodation of the Christian Science method of healing in particular. If the exemptions are meant to accommodate the free exercise of religion, it is troubling that the exemptions adopt the standards and certification procedures of only one. Like Larson, this Court concludes that the sect-specific exemptions are not closely fitted to the identified governmental interest.
While the Walz Court noted that Congress could pass laws which complied with the Establishment Clause, yet were not compelled by the Free Exercise Clause, the Court’s opinion in Kiryas Joel puts that holding in perspective:
In Walz ..., for example, the Court sustained a property tax exemption for religious properties in part because the State had “not singled out one particular church or religious group or even churches as such,” but had exempted “a broad class of property owned by nonprofit, quasi-public corporations.” ... And Bowen ... upheld a statute enlisting a “wide spectrum of organizations” in addressing adolescent sexuality because the law was “neutral with respect to the grantee’s status as a sectarian or purely secular institution.” ... Here, the benefit flows only to a single sect, but aiding this single, small religious group causes no less a constitutional problem than would follow from aiding a sect with more members or religion as a whole____
512 U.S. at -,
The exemptions here are not nearly as broad as those in Bowen or Walz. While it is true that the benefits under Medicaid and Medicare are generally available, and do not require a resort to Christian Science, the benefits provided under the statutes are not uniform—institutions which would not otherwise qualify for the receipt of funds are able to receive such funds by virtue of their status as Christian Science sanitoria. Accordingly, in determining whether the exemption is a *1480 permissible accommodation or an impermissible establishment, its sect-specific nature tips the scales toward a finding of establishment under Supreme Court jurisprudence.
In so finding, the Court does not ignore the laudable purpose behind the exemptions. The care given in Christian Science sanitoria and performed by Christian Science nurses certainly does “cohere” with the Church’s religious mission. See
Cohen v. City of Des Plaines,
The Court also notes that the importance of accommodation was .recognized in
Larson,
the case which imposed strict scrutiny on sect-specific classifications: “This constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause.”
Yet even the most honorable of intentions cannot cure the constitutional defect. The general interest of religious accommodation is consistent with the values supporting the First Amendment; this particular manner of accommodation is not.
Counsel for Defendants noted at oral argument that the reason Christian Science sanitoria were singled out by name in the exemptions was that, at the time the Medicare and Medicaid Acts were being contemplated and refined by Congress, it was the only religious group which came forward with a network of health care facilities standing as an alternative to traditional medical care. This, it is argued, makes Christian Science unique and allows the sect-specific language in the Acts. This logic clashes with the rationale of
Kiryas Joel.
“The fundamental source of constitutional concern here is that the legislature itself may fail to exercise governmental authority in a religiously neutral way.” — U.S. at-,
The Court has not ignored the Church’s and Defendants’ citation to
United States v. Lee,
Any individual may file an application ... for an exemption from the tax imposed by *1481 this chapter if he is a member of a recognized religious sect or division thereof and is an adherent of established tenets or teachings of such sect or division by reason of which he is conscientiously opposed to acceptance of the benefits of any private or public insurance which makes payments in the event of death, disability, old-age, or retirement or makes payments toward the cost of, or provides services for, medical care (including the benefits of any insurance system established by the Social Security Act). In order to qualify for the exemption, the applicant must waive his right to all social security benefits and the Secretary of Health and Human Services must find that the particular religious group makes sufficient provision for its dependent members.
Unlike the exemptions at issue here, this provision does not explicitly refer to the protection of the Old Order Amish. Yet the restrictions placed on the exercise of this exemption made clear that this exemption was intended for a very small number of existing religious groups. The exemption only becomes active if the Commissioner of Social Security finds that it has been the practice of the religious group to provide for its dependent members for a substantial period of time, 26 U.S.C. § 1402(g)(1)(D), and if the group has been in existence at all times since December 31, 1950, 26 U.S.C. § 1402(g)(1)(E). The legislative history mentions, as an example, the practices and beliefs of the Old Order Amish. H.R.Rep. No. 89-213, 89th Cong., 1st Sess. 102 (1965), U.S.Code Cong. & Admin.News 1965, 305, 311. 26
In
Lee,
the Supreme Court noted that the exemption covered only self-employed individuals and not employers or employees. The Court went on to find that the government’s interest in assuring mandatory participation in a comprehensive national social security system was very high, and that the Amish religious belief afforded no basis for resisting the Social Security tax. The Court stated: “The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress provides explicitly otherwise.”
The Supreme Court explicitly declined, however, to determine whether the exemption would have conflicted with the Establishment Clause if it had included within its ambit religious employers and employees,
*1482 B. Plaintiffs Have Standing to Raise Such a Claim
The Church claims that Plaintiffs lack standing to bring, and this Court lacks the authority to determine, the merits of the argument that other similarly situated groups have been or will be denied equal treatment, because Plaintiffs are admittedly not members of similarly situated groups. More specifically, the Church contends that Plaintiffs’ speculation that other religions may not be accommodated as the Christian Scientists have been is inadequate to grant taxpayer standing. Mem. in Supp. of Def.-Intervenor 28 n. 9 (citing
Allen v. Wright,
The Church does not consider the narrow exception for taxpayer standing concerning challenges of certain government expenditures under the Establishment Clause. In
Flast v. Cohen,
In Flast v. Cohen, ... we held that federal taxpayers have stating to raise Establishment Clause claims against exercises of congressional power under the taxing and spending power of Article I, § 8, of the Constitution. Although we have considered the problem of standing and Article III limitations on federal jurisdiction many times since then, we have consistently adhered to Flast and the narrow exception it created to the general rule against taxpayer standing established in Frothingham v. *1483 Mellon [262 U.S. 447 ,43 S.Ct. 597 ,67 L.Ed. 1078 ] [ (1923) ],.... Accordingly, in this case there is no dispute that appellees have standing to raise their challenge to the AFLA on its face.
The Court also found no impediment to standing was created by the involvement of an executive agency in disbursing the funds, in language that is directly relevant here:
In subsequent cases, most notably Tilton, we have not questioned the standing of taxpayer plaintiffs to raise Establishment Clause challenges, even when their claims raised questions about the administratively made grants____ The AFLA is at heart a program of disbursement of funds pursuant to Congress’ taxing and spending powers, and appellees’ claims call into question how the funds authorized by Congress are being disbursed pursuant to the AFLA’s statutory mandate. In this litigation there is thus a sufficient nexus between the taxpayer’s standing as a taxpayer and the congressional exercise of taxing and spending power, notwithstanding the role the Secretary plays in administering the statute.
There can be little question that the Medicare and Medicaid Acts are programs of disbursement of funds pursuant to Congress’ taxing and spending power; indeed, the Church admits as much in its Answer.
30
There can also be little question that this claim is brought under the Establishment Clause, even though it implicates equal protection concerns. The requirement of neutrality in the Establishment Clause, which is squarely at issue here, “in its application requires an equal protection mode of analysis.”
Olsen,
Even without reliance on Flast, the Church’s standing argument fails. While it articulates the dissenters’ position in Kiryas Joel, it is directly opposite to the contention of the majority, which this Court is obligated to follow. The majority stated:
The dissent protests it is novel to insist “up front” that a statute not tailor its benefits to apply only to one religious group ... but if this were so, Texas Monthly, Inc. would have turned out differently ... and language in Walz ... and Bowen ... purporting to rely on the breadth of the statutory schemes would have been mere surplusage. Indeed, under 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 treatment under the patently unequal law.
512 U.S. at -,
C. Cases Cited by Defendants and the Church are Distinguishable
Defendants and the Church cite a variety of eases where the Court allowed direct grants of funds to be given to health care providers sponsored and operated by religious bodies, even by sectarian institutions. None of these cases condones the sect-specific exemptions at issue here. In
Bradfield v. Roberts,
Nothing is said about religion or about the religious faith of the incorporators of this institution in the act of incorporation____ *1484 The facts above stated do not in the least change the legal character of the hospital, or make a religious corporation out of a purely secular one as constituted by the law of its being---- That the influence of any particular church may be powerful over the members of a nonseetarian and secular corporation, incorporated for a certain defined purpose and with clearly stated powers, is surely not sufficient to convert such a corporation into a religious or sectarian body____ There is no allegation that its hospital work is confined to members of that church or that in its management the hospital has been conducted so as to violate its charter in the smallest degree____ The charter itself does not limit the exercise of its corporate powers to the members of any particular religious denomination, but, on the contrary, those powers are to be exercised in favor of anyone seeking the ministrations of that kind of an institution____ Its property is to be acquired in its own name and for its own purposes; that property and its business are to be managed in its own way, subject to no visitation, supervision, or control by any ecclesiastical authority whatever, but only to that of the government which created it.
Here, of course, there is no dispute that the Church controls, to a large extent, the operation of the sanitoria. The secular charter in Bradfield showed “there is nothing sectarian in the corporation.” The exemptions just as clearly demonstrate the sectarian character of the sanitoria, and that the Church is explicitly allowed to exercise its “ecclesiastical authority” over these institutions. This is not to say that allowing the Church the power to certify which sanitoria practice Christian Science medicine is an impermissible delegation of governmental authority, but only to emphasize that Bradfield cannot be extended to reach the present situation.
Defendants and the Church also cite a number of eases where health care benefits were allowed to flow to sectarian institutions. But an examination of the statutes at issue in those cases shows that the laws did not distinguish between sects, nor even between religious and non-religious institutions. The generic nature of these programs was emphasized in
Bowen v. Kendrick,
On their faces, these programs are not neutral, and a portion of those institutions which receive benefits are defined with explicit reference to their religion. The authority cited by Defendants and the Church must be distinguished on that ground.
Cf. Mueller v. Allen,
The sect-specific distinctions made in the exemptions “eross[] the line from permissible accommodation to impermissible establishment.”
Kiryas Joel,
512 U.S. at -,
The governmental interest in providing basic care and services to all eligible citizens is a compelling one. The Christian Scientists are not receiving benefits which are unavailable to outsiders—other recipients of Medicaid and Medicare are aided by government payment for bed and board, and for nursing services and supplies. 32 They are receiving these benefits, however, by virtue of acts of the federal government which apply to only one religious group. Legislative accommodation of religious beliefs is a valuable and worthy enterprise, but here, applying Supreme Court precedent, the accommodation has gone too far, and too strongly favors the convictions of one particular sect. The Court does not doubt that Christian Scientists enjoy the largest and most prominent network of religiously-based alternative care institutions in the country. But to bestow a benefit upon only these particular institutions does not comport with the basic constitutional requirement of neutrality among religions.
Y. The Requested Relief
The Court is fully aware of the impact of its ruling. Exemptions on which Christian Scientists and the Church have relied for more than twenty-five years have been determined to be invalid. The consequences for past, current, and future patients at Christian Science sanitoria may be substantial, and the impact on the Church may be formidable. Yet these considerations are not properly part of this Court’s constitutional analysis. The fact that this practice may be longstanding does not convert an unconstitutional practice into a constitutional one.
Plaintiffs request injunctive relief designed to prevent use of the exemptions to determine eligibility for Medicare and Medicaid benefits, and designed to prevent payment of benefits based on the exemptions. Plaintiffs are entitled to such relief. Yet given the potential impact such an injunction would generate, and the certainty of an appeal, the *1486 Court will suspend such injunctive relief. See Fed.R.Civ.P. 62(c).
Conclusion
Accordingly, based on the foregoing, and all of the records, files, and proceedings herein, IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. No. 25) is DENIED, that Defendant-Intervenor First Church of Christ, Scientist’s Motion for Summary Judgment (Doc. No. 28) is DENIED, and that Plaintiffs’ Motion for Summary Judgment (Doc. No. 3) is GRANTED. IT IS FURTHER ORDERED that the following fifteen regulatory and statutory provisions ARE HEREBY DECLARED UNCONSTITUTIONAL, INVALID, AND UNENFORCEABLE.
The affected statutory provisions are:
1) That portion of 42 U.S.C. § 1395x(e) which provides:
The term “hospital” also includes a Christian Science sanatorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Massachusetts, but only with respect to items and services ordinarily furnished by such institution to inpatients, and payment may be made with respect to services provided by or in such an institution only to such extent and under such conditions, limitations, and requirements (in addition to or in lieu of the conditions, limitations, and requirements otherwise applicable) as may be provided in regulations.
2) That portion of 42 U.S.C. § 1395x(y)(l) which provides:
The term “skilled nursing facility” also includes a Christian Science sanatorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Massachusetts, but only with respect to items and services ordinarily furnished by such an institution to inpatients, and payment may be made with respect to services provided by or in such an institution only to such extent and under such conditions, limitations, and requirements (in addition to or in lieu of the conditions, limitations, and requirements otherwise applicable) as may be provided in regulations.
3) 42 U.S.C. § 1320C-11, providing: “The provisions of this part shall not apply with respect to a Christian Science sanitarium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Massachusetts.”
4) That portion of 42 U.S.C. § 1396a(a) which provides: “The provisions of paragraphs (9)(A), (31), and (33) and of section 1396b(i)(4) of this title shall not apply to a Christian Science sanatorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Massachusetts.”
5) That portion of 42 U.S.C. § 1396g(e)(l) which provides that the definition of “nursing home” “does not include a Christian Science sanatorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Massachusetts.”
The affected regulatory provisions are:
1) That portion of 42 C.F.R. § 466.1 which defines “hospital” to mean a health care institution “other than a Christian Science sanatorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Massachusetts.”
2) That portion of 42 C.F.R. § 431.610(b) which provides: “The requirement for establishing and maintaining standards does not apply with respect to Christian Science sanitaria operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Mass.”
3) That portion of 42 C.F.R. § 440.155(b)(1) which provides that “nursing facility services” include services “[cjonsidered appropriate by the State and provided by a Christian Science sanatorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Mass.”
4) 42 C.F.R. § 440.170(b), providing:
Services of Christian Science nurses.
“Services of Christian Science nurses” mean services provided by nurses who are listed and certified by the First Church of Christ, Scientist, Boston, Mass., if—
(1) The services have been requested by the recipient; and
(2) The services are provided—
*1487 (i) By or under the supervision of a Christian Science visiting nurse organization listed and certified by the First Church of Christ, Scientist, Boston, Mass.;
(ii) As private duty services to a recipient in his own home or in a Christian Science sanatorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Mass., if the recipient requires individual and continuous care beyond that available from a visiting nurse or that routinely provided by the nursing staff of the sanatorium.
5) 42 C.F.R. § 440.170(e), providing: Services in Christian Science sanatoriums. “Services in Christian Science sanatoriums” means services provided in Christian Science sanatoriums that are operated by, or listed and certified by, the First Church of Christ, Scientist, Boston, Mass.
6) 42 C.F.R. § 442.12(b), providing: Exception. The certification requirement of paragraph (a) of this section does not apply with respect to Christian Science sanitoria operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Mass.
7) That portion of 42 C.F.R. § 456.251, in defining “skilled nursing facility services,” which “excludes those services if they are provided in Christian Science sanitoria.”
8) That portion of 42 C.F.R. § 456.351, in defining “intermediate care facility services,” which “excludes those services if they are provided in Christian Science sanitoria.”
9) That portion of 42 C.F.R. § 456.601, in defining “intermediate care facility,” which “excludes Christian Science sanatoria operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Mass.”
10) That portion of 42 C.F.R. § 431.701, in defining “nursing home,” which states that the term does not include “(a) A Christian Science sanatorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Mass.”
Defendants are ENJOINED from using of the foregoing provisions to determine eligibility for benefits, and from paying benefits based on the exemptions; however, this injunctive relief is STAYED until the time for appealing from this Memorandum Opinion and Order has expired, and if an appeal is taken from this Memorandum Opinion and Order, the stay will be continued throughout the pendency of the appeal.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Notes
. This regulation, which sets out definitions for use in later regulations concerning medical peer review, reads: “Hospital means a health care institution or distinct part of a health care institution ... other than a Christian Science sanatorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Massachusetts." 42 C.F.R. § 466.1. In addition, the same regulation also excludes Christian Science sanitaria from the definition of a "skilled nursing facility.” Id. Thus, sanitaria do not have to adhere to the regulations which address review responsibilities of utilization and "quality control” peer review organizations. Since sanitaria do not provide medical care, the lack of a necessity for peer review of medical matters is evident.
. This provision requires that a state plan for medical assistance must provide "that the State health agency, or other appropriate State medical agency ... shall be responsible for establishing and maintaining health standards for private or public institutions in which recipients of medical assistance under the plan may receive care or services." 42 U.S.C. § 1396(a)(9)(A).
. This provision lays out reporting, inspection, and care requirements with respect to services in an intermediate care facility for the mentally retarded, where the state Medicaid plan includes medical assistance for such services. 42 U.S.C. § 1396a(31).
. This provision requires that the state health agency establish a plan for review of the quality and care of services furnished to Medicaid recipients by professional health personnel. 42 U.S.C. § 1396a(33).
. This subsection bars Medicaid payments from being made with respect to hospital services not made under a proper "utilization review plan.” 42 U.S.C. § 1396b(i)(4). The structure of such a plan is described in 42 U.S.C. § 1395x(k), and is designed to provide for "in-house” review of admittance procedures and the services provided by the institution.
. The provision reads:
A State plan must designate, as the State authority responsible for establishing and maintaining health standards for private or public institutions that provide services to Medicaid recipients, the same State agency that is used by the Secretary to determine qualifications of institutions and suppliers of services to participate in Medicare (see 42 C.F.R. § 405.1902). The requirement for establishing and maintaining standards does not apply with respect to Christian Science sanitaria operated, or listed and certified, by the First Church of Christ Scientist, Boston, Mass.
. This provision includes in the definition of “nursing facility services” those services "[c]onsidered appropriate by the State and provided by a Christian Science sanatorium operated, or listed and certified, by the First Church of Christ Scientist, Boston, Mass.” Accordingly, certain services provided by a Christian Science sanitarium qualify for payment under the Medicaid Act.
. 42 C.F.R. § 440.170(b) defines "services of Christian Scientist nurses” to be services provided by nurses "who are listed and certified by the First Church of Christ, Scientist, Boston, Mass.” *1471 if: 1) the services have been requested by the recipient; and 2) the services are provided under the supervision of a Christian Science visiting nurse organization, or as "private duty services” in a patient’s home.
. This provision defines "services in Christian Science sanatoriums” to mean "services provided in Christian Science sanatoriums that are operated by, or listed and certified by, the First Church of Christ, Scientist, Boston, Mass.” 42 C.F.R. § 440.170.
. This provision, following the language of the Medicaid Act, exempts Christian Science sanitoria from the certification provisions for intermediate care facilities designed to care for mentally retarded patients. See 42 U.S.C. § 1396a(a).
. While the Medicare Act makes specific allowances for Christian Science sanitoria, the Medicaid Act merely permits .individual states to provide benefits to "any other type of remedial care recognized under state law, specified by the Secretary.” 42 U.S.C. § 1396d(a)(25). The Secretary has specified, in two of the challenged regulatory provisions already discussed, that “remedial care" may include services provided by Christian Science sanitoria and nurses. 42 C.F.R. §§ 440.170(b), (c). The Secretary has also recognized, in another contested provision, that "nursing facility services” include services ”[c]onsidered appropriate by the State and provided by a Christian Science sanatorium.” 42 C.F.R. § 440.155(b)(1).
. “Congress shall make no law respecting an establishment of religion...." U.S. Const. amend. I.
. Lynch involved a Christmas display, which included a creche, owned by the city of Pawtucket, Rhode Island. The display as a whole was held not to violate the Establishment Clause.
. The Grand. Rapids case did not mention the Larson test, but neither did it involve aid to a particular denomination.
. The Court in Hernandez recognized the establishment of a two-level inquiry:
Larson teaches that, when it is claimed that a denominational preference exists, the initial inquiry is whether the law facially differentiates among religions. If no such facial preference exists, we proceed to apply the customary three-pronged Establishment Clause inquiry derived from Lemon v. Kurtzman [citation omitted].
. Both Defendants and the Church cite
Peyote Way Church of God v. Thornburgh,
. Justice O'Connor has posited that the
Larson
standard, which she recognizes as applying to statutes which plainly embody an intentional discrimination among religions, may also be conformed to the Supreme Court's standard for finding "endorsement” of a religion. "Plain intentional discrimination should give rise to a presumption, which may be overcome by a showing of compelling purpose and close fit, that the challenged government conduct constitutes an endorsement of the favored religion or a disapproval of the disfavored."
Lynch
v.
Donnelly,
. This section of the Medicare Act makes clear that it does not “authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided ... or to exercise any supervision or control over the administration or operation of any such institution, agency or person.”
. This section of the Medicaid Act also indicates that Congress considered the impact of such a broad health care program on the religious rights of its beneficiaries:
Nothing in this subchapter shall be construed to require any State which has a plan approved under this subchapter to compel any person to undergo any medical screening, examination, diagnosis, or treatment or to accept any other health care or services provided under such plan for any purpose (other than for the purpose of discovering and preventing the spread of infection or contagious disease or for the purpose of protecting environmental health), if such person objects (or, in case such person is a child, his parent or guardian objects) thereto on religious grounds.
. This is not to say, however, that such a free exercise challenge would succeed. See infra Section III.B.3.
. In Homer’s Odyssey, Odysseus was forced to guide his ship between the twin perils of Scylla, a six-headed monster who would devour six of his crewmen, and Charybdis, a violent whirlpool which threatened to drag his ship into certain oblivion. See Homer, The Odyssey 191-96 (E.V. Rieu trans., Penguin Books 1960).
. The
Sherbert
Court quoted
Everson v. Board of Education,
. The efficacy of this provision is somewhat doubtful, since there is a fair deal of interplay between the Free Exercise Clause and the Establishment Clause. For example, under the Larson test, the government must show a compelling interest for facially differentiating between sects; yet if it did not distinguish between sects here, and the Christian Scientists claimed (as they reasonably could) that the Medicare and Medicaid Acts substantially burdened the exercise of their religion, Congress would have to demonstrate a compelling interest for not exempting them from certain requirements of the programs. This awkward situation leads to strict scrutiny of Congress’ action, no matter which path it chooses to take.
. At least one Eighth Circuit judge has stated his belief that the RFRA is unconstitutional.
Hamilton v. Schriro,
. Yet in these cases, the relevant law did not discriminate between sects, illustrating a second relevant point: " ‘Neutrality’ in matters of religion is not inconsistent with ‘benevolence’ by way of exemptions from onerous duties [citing
Walz],
so long as an exemption is tailored broadly enough that it reflects valid secular purposes.”
Gillette v. United States,
. Under the Medicare and Medicaid Acts, the nature of the exemptions is a bit different. Instead of allowing wholesale exclusion from the programs, Christian Science adherents must pay their full measure of Medicare and Medicaid taxes. However, they are then allowed to visit Christian Science sanitoria, where the programs will pay for certain services. Section 1402(g) provides that a qualified person may pay no Social Security taxes but, as a consequence, must give up all claims to Social Security benefits.
. Circuit courts of appeals have examined Section 1402(g) in connection with the Establishment Clause; however, none has applied strict scrutiny. In
Jaggard v. Commissioner of Internal Revenue,
The Third Circuit in
Bethel Baptist Church v. United States,
This Court does not have the luxury of finding a lack of discrimination between sects, as it is apparent on the face of the Acts. In that respect, this Court faces a different question, and cannot rely on these interpretations of Section 1402(g).
. The Court is cognizant of the judicial duty to avoid declaring a statute unconstitutional if at all possible.
See, e.g., Rescue Army v. Municipal Court,
. The case of Allen v. Wright, cited by the Church in support of its argument, did not involve an Establishment Clause challenge but rather a charge of race discrimination. The Court held that parents of black children attending public schools in districts undergoing desegregation did not have standing to require judicial review of the sufficiency of Internal Revenue Service standards denying tax-exempt status to racially discriminatory private schools. Notably, the case was decided three years before Bowen.
. The Church admits, as it 'must, that Medicaid and Medicare payments to Christian Science sanitaria are derived from taxes "levied by the United States and spent by the United States.” Answer of the First Church of Christ, Scientist ¶¶ 36, 69.
. In
Wolman,
a case relied upon heavily by the Church and Defendants, the Court found that its previous decisions “contain a common thread to the effect that the provision of health services to
*1485
all schoolchildren—public and nonpublic—does not have the primary effect of aiding religion.”
. See Ault Decl. ¶ 7; HCFA Christian Science Supplement §§ CS-200(D); 204(A).