concurring:
I agree that accommodation of individuals who are religiously opposed to medical care, including Christian Scientists, is appropriate, but conclude that the statute must be read to encompass both religious and nonreligious beliefs in order to pass constitutional muster. As Justice O’Con-nor succinctly explained in Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994), “[rjeligious needs can be accommodated through laws that are neutral with regard to religion.” Id. at 714, 114 S.Ct. 2481 (O’Connor, J., concurring). This principle best reflects our current understanding of the Religion Clauses: although “[pjerhaps in the early days of the Republic” the words of the Free Exercise and Establishment Clauses “were understood to protect only the diversity within Christianity ... today they are recognized as guaranteeing religious liberty and equality to ‘the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.’ ” County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 590, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (quoting Wallace v. Jaffree, 472 U.S. 38, 52, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985)). With this understanding in mind, I concur in the judgment of the court upholding the constitutionality of the statute, albeit doing so via a religiously-neutral construction of the statute.
With due respect to Judge Noonan, the resolution of this case cannot be divined from “a page of history.” (Op. at 20.) Rather, given the complicated and intricate development of Establishment Clause jurisprudence, the analysis is more nuanced, requiring a scalpel, not a broad brush. Indeed, the multiple plurality opinions spawned in modern Establishment Clause cases underscore the delicate distinctions drawn by the Supreme Court. Our own opinion here, consisting of a one-judge opinion, joined by two concurrences, reflects the difficulty in applying the Court’s distinctions. Just as “history cannot legitimate practices that demonstrate the government’s allegiance to a particular *1142sect or creed,” County of Allegheny, 492 U.S. at 603, 109 S.Ct. 3086, historical practice alone cannot resolve the question before us. The Court’s decision in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), upholding the payment of chaplains by a state legislature, did not announce a principle ratifying otherwise impermissible religious accommodations merely by virtue of historical precedent. Marsh “plainly does not stand for the sweeping proposition ... that all accepted practices 200 years old and their equivalents are constitutional today.” County of Allegheny, 492 U.S. at 603, 109 S.Ct. 3086.
Nor can it be said that a static historical approach is “more in tune with the Bill of Rights.” (Op. at 19.) We are not, as suggested, faced with the choice of “giv[ing] relief to a religious minority” versus “finding a constitutional evil in congressional response to a constituency.” Id. Rather, the Constitution and Supreme Court precedent require us to undertake an analysis of the nature and context of the accommodation in the framework of the Establishment Clause. Having done so, I am of the view that we can sustain the accommodation simply by construing the statute in a religion-neutral manner. The government acknowledges this solution in its briefing and indeed recommended such a construction in earlier correspondence with Congress.1
Although the statutory provisions are lengthy, in the context of this case, their essence boils down to two phrases, the first relating to the individual recipient of care and the second to the institutional provider of care: 1) the individual must be “conscientiously opposed” to medical treatment such that acceptance of care is “inconsistent with the individual’s sincere religious beliefs,” 42 U.S.C. § 1395i— 5(b)(2)(A)(i-ii) (emphasis added); and 2) the facility must be “a religious nonmedical healthcare institution,” id. § 1320c-ll (emphasis added) (collectively referred to as “ § 4464,” which is found within the Balanced Budget Act of 1997). The heart of the dispute is the singling out of religious beliefs and religious institutions for special treatment — that is, for an accommodation.
I begin with the longstanding “principle at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreli-gión.” Kiryas Joel, 512 U.S. at 703, 114 S.Ct. 2481 (emphasis added). This foundation paves the way for two intertwined principles that govern my analysis: an accommodation restricted to religion must remove “a significant state-imposed deterrent to the free exercise of religion,” Texas Monthly Inc. v. Bullock, 489 U.S. 1, 2, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989) (plurality opinion) (emphasis added), and a permissible accommodation may not distinguish among theistic, nontheistic and atheistic beliefs. Kiryas Joel, 512 U.S. at 716, 114 S.Ct. 2481 (O’Connor, J., concurring); see also Torcaso v. Watkins, 367 U.S. 488, 495, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) (observing that the federal government cannot “constitutionally pass laws or impose requirements which aid all religions as *1143against non-believers (footnotes omitted)).
The desire to accommodate the Christian Scientists’ beliefs is understandable in light of our nation’s history of religious accommodation. And Congress’ effort to expand the reach of the statute beyond the sect-specific designation, once the original statute was declared unconstitutional, see Children’s Healthcare is a Legal Duty, Inc. v. Vladeck, 938 F.Supp. 1466 (D.Minn.1996), is laudable. But these efforts do not remove constitutional doubts created by the statute. For starters, it is doubtful that the accommodation has the purpose and effect of alleviating “a significant state-imposed deterrent to the free exercise of religion.” Texas Monthly, 489 U.S. at 15, 109 S.Ct. 890; see also Corp. of Presiding Bishop of the Church of Jesus Christ of Latterday Saints v. Amos, 483 U.S. 327, 335, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (“[I]t is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.” (emphasis added)). Just as significant is the fact that the accommodation threatens to “burden[ ] nonbeneficiaries markedly” because it im-permissibly exempts only those whose objection to all medical care is grounded in religious, rather than non-religious, belief. Texas Monthly, 489 U.S. at 15, 109 S.Ct. 890.
I agree with the Eighth Circuit that the Free Exercise Clause jurisprudence in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and its progeny “provide[s] a starting point for determining when a government-imposed burden is sufficient to warrant a permissive accommodation.” Children’s Healthcare is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1094 (8th Cir.2000). However, the religious objector to medical care occupies a more complex position with regard to the benefits at stake than the plaintiff in Sherbert.2 Medicare does not create any general right to custodial care that is not integrated into a program of medical care. See 42 U.S.C. § 1395y(a)(9). Thus, unlike the Sabbath observer receiving unemployment benefits in Sherbert, the adherent of faith healing rejects, at the very least, a major portion of the integrated medical benefit itself, and not just the qualifications to receive the benefit. In addition, the religious objector seeks to receive the benefit in a different manner than other patients — outside the hospital setting and without the supervision of health care professionals.
These important differences cast substantial doubt on the contention that the religious objectors to medical care receive merely a subset of the benefits ordinarily received by other patients. In effect, the religious objector wants to unbundle medical and non-medical services in a way that would effectively rewrite the Medicare and Medicaid framework. Thus, for example, Medicare will only reimburse for hospice care, a type of custodial care, if a doctor certifies that the patient is terminally ill and has less than six months to live. See 42 U.S.C. §§ 1395y(a)(l)(c), 1395x(dd)(3); *114442 C.F.R. § 418.22 (1998). Under § 4454, in contrast, the qualifying patient need only have a condition that would otherwise require hospitalization. See 42 U.S.C. § 1395i-5(a)(2). Because, under Medicare, the types of nonmedical benefits available under § 4454 are normally authorized only when part and parcel of medical care, one could interpret § 4454 as bestowing upon religious objectors a special entitlement to “custodial care” that others do not receive. See 42 U.S.C. § 1395y(a)(9); 42 C.F.R. §§ 409.33(d), 409.32(b) (prohibiting reimbursement for custodial care unless “special medical complications” require routine care to be “performed or supervised by skilled nursing or rehabilitation personnel.”). Undoubtedly, many individuals would welcome coverage of free-standing custodial care, but such an arrangement is simply not covered under the current scheme.
Nor can it be said that Religious Non-medical Health Care Institutions (“RNHCIs”) suffer from anything approaching the “significant” burden that justifies drawing distinctions between religious and non-religious institutions under Texas Monthly and Amos. In Amos, the accommodation for religious groups removed government regulation that interfered with the groups’ ability to define and advance their religious missions. See 483 U.S. at 336, 107 S.Ct. 2862. Here, in the absence of § 4454, religious groups would not be burdened in espousing or practicing their beliefs eschewing medical care. Thus, § 4454 places RNHCIs in the same favored position vis a vis nonreligious institutions that the Supreme Court held violated the Establishment Clause in Texas Monthly. See 489 U.S. at 14, 109 S.Ct. 890 (striking down a Texas tax benefit only for religious publications) (plurality opinion); id. at 29, 109 S.Ct. 890 (Blackmun, J., joined by O’Connor, J., concurring) (agreeing with the plurality). Because institutions, unlike individuals, have no entitlement to receive Medicare funds, § 4454 “cannot reasonably be seen as removing a significant state-imposed deterrent to the free exercise of religion” for RNHCIs. Id. at 15, 109 S.Ct. 890.3
The second flaw in § 4454 is that it appears to exempt only those whose objection to medical care is grounded in religious belief. The government mistakenly asserts that Amos supports providing a medical objector exemption exclusively for religious individuals. See 483 U.S. at 338, 107 S.Ct. 2862. But Amos did not alter the “constitutional command” that government “pursue a course of neutrality toward religion, favoring neither one religion over others nor religious adherents collectively over nonadherents.” Kiryas Joel, 512 U.S. at 696, 114 S.Ct. 2481 (opinion of Souter, J.) (citing Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968)).
Amos teaches that the government need not grant benefits to secular groups when lifting burdens on religious ones, but it does not follow that government can select from among similarly-burdened individuals and favor the religious over the non-religious. Such an unnecessarily broad reading of Amos would conflict with Supreme Court jurisprudence regarding individual accommodations. See Estate of Thornton v. Caldor, 472 U.S. 703, 710, 105 S.Ct. *11452914, 86 L.Ed.2d 557 (1985) (striking down a law guaranteeing only religious employees the right to take off the Sabbath day); Sherbert, 374 U.S. at 410, 83 S.Ct. 1790 (reciting the principle that “no State may ‘exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.’ ” (emphases added) (quoting Everson v. Bd. of Educ., 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947))).
Those individuals who reject medical care for principled reasons are equally burdened by a requirement that they either violate their principles or give up government health care benefits. The government may not selectively lift this burden only from the shoulders of the religious. When it does, the government doubles the burden on those whose objection to medical care is not faith-based, but who would be required to profess a religious belief in order to qualify for the exemption, and would be required to receive their benefits in religious institutions. See Torcaso, 367 U.S. at 495-96, 81 S.Ct. 1680 (striking down a state law requiring officeholders to profess a belief in the existence of God). In providing the Medicare exemption only for the religious, the government places its “prestige, coercive authority, [and] resources behind ... religious belief in general” and “cannot but convey a message of endorsement to slighted members of the community.” Texas Monthly, 489 U.S. at 9, 15, 109 S.Ct. 890 (quoting Amos, 483 U.S. at 348, 107 S.Ct. 2862 (O’Connor, J., concurring in the judgment)).4
These serious questions about the constitutionality of § 4454 could be resolved by excising the references to religion. The Supreme Court has “frequently relied explicitly on the general availability of any benefit provided religious groups or individuals in turning aside Establishment Clause challenges.” Kiryas Joel, 512 U.S. at 704, 114 S.Ct. 2481; see also Bowen v. Kendrick, 487 U.S. 589, 608, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988); Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. 481, 487, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986); Walz v. Tax Comm’n, 397 U.S. 664, 673, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). This solution was identified six years ago by none other than the Attorney General, who invoked the principles I have discussed in urging Congress to expand the scope of the exemption to include non-religious objectors. See Attorney General Letter at 4-5, 11. In the letter, the Attorney General observed that “the government may not provide a public benefit exclusively to religious adherents,” and urged Congress to create “a ‘conscientious objector’ class of beneficiaries, patterned on the class of conscientious objectors that has been con*1146stitutionally permissible in the context of military service.” Id. at 4, 11.
The Attorney General now supports the religious restrictions, but his brief acknowledges that § 4454 would still be operative without them, and that Congress’ goal of accommodating “the needs of person who have sincere religious objections to medical care” could be accomplished absent any reference to religion. Indeed, in the face of constitutional doubts, it is difficult to imagine that Congress would not choose to extend benefits to what must surely be a small number of similarly-situated non-religious objectors. See INS v. St. Cyr, 533 U.S. 289, 300 n. 12, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (“The courts will ... not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.” (internal citations and quotation marks omitted)); New York v. United States, 505 U.S. 144, 186, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (“Unless it is evident that [Congress] would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as law.”).
I conclude, however, that it is not necessary to invalidate any part of § 4454 as it is currently written. The Supreme Court’s expansive interpretation of the draft exemption provides the template for interpreting § 4454 in a way that avoids constitutional problems. See St. Cyr, 533 U.S. at 300-01, 121 S.Ct. 2271 (“[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is fairly possible, we are obligated to construe the statute to avoid such problems.” (internal quotation marks and citation omitted)). The draft statute’s text exempted from military service anyone who, “by reason of religious training and belief, is conscientiously opposed to participation in war.” Welsh v. United States, 398 U.S. 333, 336, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) (plurality opinion) (discussing § 6(j) of the Universal Military Training and Service Act); United States v. Seeger, 380 U.S. 163, 173, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) (same). In Welsh and Seeger, the Supreme Court concluded that the exemption applied to those whose objection to military service was grounded, not just in religious faith, but in any belief held “with the strength of traditional religious convictions.” Welsh, 398 U.S. at 340, 90 S.Ct. 1792 (plurality); see Seeger, 380 U.S. at 187, 85 S.Ct. 850; cf. Welsh, 398 U.S. at 366-67, 90 S.Ct. 1792 (Harlan, J., concurring in the result as a “patch work of judicial making that cures the defect of underinclusion”).
I would construe § 4454, like the Supreme Court did the draft exemption, as extending to all “whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves” to receive any medical treatment.5 Id. at 344, 90 S.Ct. 1792 (1970) (plurality opinion) (interpreting the draft exemption); see also 32 C.F.R. §§ 75.3(b), 75.5(c)(1) (setting forth the belief requirement for military conscientious objection). The Constitution requires that the carve-out for nonmedical care include those whose moral and ethical beliefs place them on the same plane as religious adherents. See Estate of Thornton, 472 U.S. at 711, 105 S.Ct. 2914 (O’Connor, J., concurring) (holding that a statute giving special treat*1147ment to Sabbath observers is unconstitutional because it did not extend similar treatment to “ethical and religious beliefs and practices of other private employees”). In defending an exclusively-religious exemption, the government misses the point that “what makes accommodation permissible, even praiseworthy” is that “the government is accommodating a deeply held belief.” Kiryas Joel, 512 U.S. at 715 (O’Connor, J., concurring). The “equal-footing” approach I have outlined meets the needs of the Christian Scientists and all objectors to medical care while remaining true to Establishment Clause principles. With this neutral construction of § 4454 in mind, I concur in the result.
. In reviewing the proposed legislation in 1997, the Department of Justice highlighted its constitutional concerns with the proposed statutory preference for religious beliefs and institutions and advised Congress that a "religion-neutral statute ... provides a framework for legislation that could pass constitutional muster while at the same time attempting to limit the risk of substantial cost increases on Medicare and Medicaid.” Letter from Andrew Fois, Assistant United States Attorney General to the Hon. Henry J. Hyde, Chairman of Committee on the Judiciary, U.S. House of Representatives, at 2 (June 13, 1997) ("Attorney General Letter”).
. In Sherbert, the Court held that the state could not require the plaintiff to abandon her religious objection to working on the Sabbath in order to receive unemployment benefits. 374 U.S. at 401, 83 S.Ct. 1790. See also, e.g., Frazee v. Ill. Dep't of Employment Sec., 489 U.S. 829, 832, 109 S.Ct. 1514, 103 L.Ed.2d 914 (1989). The Court later applied the same principle to a plaintiff who objected to working on armaments. See Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 717-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (“Where the state conditions receipt of an important benefit upon conduct proscribed by religious faith ..., thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.”).
. The First Church of Christ, Scientist relies on Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308, 310-11 (9th Cir.1974), for the proposition that § 4454 provides an accommodation for RNHCIs. In Chrisman, we concluded that a provision that allowed religious hospitals receiving federal construction funds to refuse to perform sterilizations was a religious accommodation consistent with the Establishment Clause. Id. at 311-12. However, unlike Medicare and Medicaid, the program in Chrisman was an entitlement for hospitals, not patients.
. The government makes the unconvincing argument that limiting § 4454 only to the religious is justified on the ground that it helps keep down the cost of administering the exemption. But the Religion Clauses are not cost-cutting tools. Our decision in Droz v. CIR, 48 F.3d 1120 (9th Cir.1994), upholding the exemption from Social Security taxes for the Amish, see 26 U.S.C. 1402(g), does not support the government’s position. In contrast to patients receiving benefits under § 4454, the Amish exist outside the Social Security system altogether; they do not pay taxes or receive benefits because they have their own system of welfare. See Droz, 48 F.3d at 1123 ("[T]he fact that § 1402(g)’s effect is to neither advance nor inhibit religion is shown by the requirement that a person must waive all Social Security benefits to receive an exemption.”). It was this separate welfare system that distinguished the Amish from other sects objecting to participation in the Social Security system. Id. at 1124. Here, the government can provide no equivalent justification for limiting § 4454’s exemption only to the religious.
. The same principles require a similarly-expansive interpretation of § 4454's other "religious” requirements — that the objector rely exclusively on a "religious" method of healing and receive care only in a "religious” non-medical health care institution. See 42 U.S.C. § 1395x(ss)(l)(C).