400
Scalia, J., concurring in judgment
dates or invalidates the government action in question—and therefore cannot join the opinion of the Court today.*
I cannot join for yet another reason: the Court's statement that the proposed use of the school's facilities is constitutional because (among other things) it would not signal endorsement of religion in general. Ante, at 395. What a strange notion, that a Constitution which itself gives "religion in general" preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general. The attorney general of New York not only agrees with that strange notion, he has an explanation for it: "Religious advocacy," he writes, "serves the community only in the eyes of its adherents and yields a benefit only to those who already believe." Brief for Respondent Attorney General 24. That was not the view of those who adopted our Constitution, who believed that the public virtues inculcated by religion are a public good. It suffices to point out that during the summer of 1789, when it was in the process of drafting the First Amendment, Congress enacted the Northwest Territory Ordinance that the Confederation Congress had adopted in 1787—Article III of which provides: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Unsurprisingly, then, indifference to "religion in general" is not what our cases, both old and recent, demand. See, e. g., Zorach v. Clauson, 343 U. S. 306, 313-314 (1952) ("When the state encourages reli-*The Court correctly notes, ante, at 395, n. 7, that I joined the opinion in Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987), which considered the Lemon test. Lacking a majority at that time to abandon Lemon, we necessarily focused on that test, which had been the exclusive basis for the lower court's judgment. Here, of course, the lower court did not mention Lemon, and indeed did not even address any Establishment Clause argument on behalf of respondents. Thus, the Court is ultimately correct that Presiding Bishop provides a useful comparison: It was as impossible to avoid Lemon there, as it is unnecessary to inject Lemon here.
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