Cite as: 512 U. S. 687 (1994)
Scalia, J., dissenting
Justice Souter concedes that Grendel's Den "presented an example of united civic and religious authority, an establishment rarely found in such straightforward form in modern America." Ante, at 697. The uniqueness of the case stemmed from the grant of governmental power directly to a religious institution, and the Court's opinion focused on that fact, remarking that the transfer of authority was to "churches" (10 times), the "governing body of churches" (twice), "religious institutions" (twice), and "religious bodies" (once). Astonishingly, however, Justice Souter dismisses the difference between a transfer of government power to citizens who share a common religion as opposed to "the officers of its sectarian organization"—the critical factor that made Grendel's Den unique and "rar[e]"—as being "one of form, not substance." Ante, at 698.
Justice Souter's steamrolling of the difference between civil authority held by a church and civil authority held by members of a church is breathtaking. To accept it, one must believe that large portions of the civil authority exercised during most of our history were unconstitutional, and that much more of it than merely the Kiryas Joel school district is unconstitutional today. The history of the populating of North America is in no small measure the story of groups of people sharing a common religious and cultural heritage striking out to form their own communities. See, e. g., W. Sweet, The Story of Religion in America 9 (1950). It is preposterous to suggest that the civil institutions of these communities, separate from their churches, were constitutionally suspect. And if they were, surely Justice Souter cannot mean that the inclusion of one or two nonbelievers in the community would have been enough to eliminate the constitutional vice. If the conferral of governmental power upon a religious institution as such (rather than upon American citizens who belong to the religious institution) is not the test of Grendel's Den invalidity, there is no reason why giving power to a body that is overwhelmingly dominated
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