746
Scalia, J., dissenting
Den, 459 U. S., at 125. How misleading. That language in Grendel's Den was an expression of concern not (as the context in which it is quoted suggests) about the courts' ability to assure the legislature's future neutrality, but about the legislature's ability to assure the neutrality of the churches to which it had transferred legislative power. That concern is inapposite here; there is no doubt about the legislature's capacity to control what transpires in a public school.
At bottom, the Court's "no guarantee of neutrality" argument is an assertion of this Court's inability to control the New York Legislature's future denial of comparable accommodation. We have "no assurance," the Court says, "that the next similarly situated group seeking a school district of its own will receive one," since "a legislature's failure to enact a special law is . . . unreviewable." Ante, at 703; see also ante, at 716 (O'Connor, J., concurring in part and concurring in judgment).4 That is true only in the technical (and irrelevant) sense that the later group denied an accommodation may need to challenge the grant of the first accommodation in light of the later denial, rather than challenging the denial directly. But one way or another, "even if [an administrative agency is] not empowered or obliged to act, [a litigant] would be entitled to a judicial audience. Ultimately, the courts cannot escape the obligation to address [a] plea that the exemption [sought] is mandated by the first amendment's religion clauses." Olsen v. Drug Enforcement Admin., 878 F. 2d 1458, 1461 (CADC 1989) (R. B. Ginsburg, J.).
4 The Court hints, ante, at 703, that its fears would have been allayed if the New York Legislature had previously created similar school districts for other minority religions. But had it done so, each of them would have been attacked (and invalidated) for the same reason as this one: because it had no antecedents. I am sure the Court has in mind some way around this chicken-and-egg problem. Perhaps the legislature could name the first four school districts in pectore.
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