Americans United's attempted intervention in Notre Dame's HHS case

Apparently, the organization formerly known as Protestants and Other Americans United for Separation of Church and State has filed a motion seeking to intervene in "Notre Dame Lawsuit Challenging Women's Access to Birth Control."  Of course, no such lawsuit exists.  The lawsuit to which the organization founded by the paranoid bigot, Paul Blanshard, refers is Notre Dame's lawsuit invoking the protections of the Religious Freedom Restoration Act and seeking an exemption from a requirement that it (or, the TPA administering its insurance plan) provide employees and students with coverage for non-medically-indicated contraception and sterilization.  But, in any event . . .

It is entirely understandable that AU would try to intervene in Notre Dame's case, if only because it makes for good direct-mail content and it will appeal to AU's neo-Blanshardian donors and supporters.  That said:  I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited.  That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.”

With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are.  If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.”   Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character?

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