It seems to me that there is a much less nefarious explanation. In the context of those Establishment Clause challenges, it was permissible for a religious entity like Notre Dame to receive the government funds so long as they were not used for items deemed to be inherently religious activities such as worship or instruction. In saying that the provision of health insurance was a secular expense, Notre Dame was merely distinguishing such expenses from those that might be spent on things like theological instruction or wine for a mass. But to say that the provision of health insurance is a secular expense, unlike worship or instruction, says nothing about whether Notre Dame can and does apply its religious beliefs to what type of health insurance it provides. Moreover, it would also be an “administrative” or “secular” expense (as opposed to inherently religious) for Notre Dame to pay for the salary of someone running one of its government grant programs, but that doesn’t mean Notre Dame can’t apply its religious beliefs and criteria to selecting those that it hires. So I think it is fair to say that there can be secular expenses (as opposed to inherently religious) under Establishment Clause jurisprudence that still involve the exercise of religious beliefs by a religious entity.
From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton This reminds me of the religious organizations who tell their employees in writing that they do not discriminate but when they get sued for discrimination argue the ministerial exception. Religious employers appear to be no different from any other in seeking the most beneficial position at the expense of employees or others. The question is whether courts will hold them to their previous statements and positions. Marci A. Hamilton On Jan 6, 2014, at 4:21 PM, Greg Lipper <lip...@au.org<mailto:lip...@au.org>> wrote: One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National & Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. & Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton <hamilto...@aol.com<mailto:hamilto...@aol.com>> wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law On Jan 6, 2014, at 3:15 PM, Rick Garnett <rgarn...@nd.edu<mailto:rgarn...@nd.edu>> wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State & Society Notre Dame Law School
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