748
Scalia, J., dissenting
Contrary to the Court's suggestion, ante, at 708-709, I do not think that the Establishment Clause prohibits formally established "state" churches and nothing more. I have always believed, and all my opinions are consistent with the view, that the Establishment Clause prohibits the favoring of one religion over others. In this respect, it is the Court that attacks lions of straw. What I attack is the Court's imposition of novel "up front" procedural requirements on state legislatures. Making law (and making exceptions) one case at a time, whether through adjudication or through highly particularized rulemaking or legislation, violates, ex ante, no principle of fairness, equal protection, or neutrality simply because it does not announce in advance how all future cases (and all future exceptions) will be disposed of. If it did, the manner of proceeding of this Court itself would be unconstitutional. It is presumptuous for this Court to impose—out of nowhere—an unheard-of prohibition against proceeding in this manner upon the Legislature of New York State. I never heard of such a principle, nor has anyone else, nor will it ever be heard of again. Unlike what the New York Legislature has done, this is a special rule to govern only the Satmar Hasidim.
V
A few words in response to the separate concurrences: Justice Stevens adopts, for these cases, a rationale that is
bears no resemblance to today's opinion, except that it also was wrong and it also misinterpreted Walz v. Tax Comm'n of City of New York, 397 U. S. 664 (1970), see 489 U. S., at 33-40 (Scalia, J., dissenting). The tax treatment of publishing companies in Texas was governed by an across-the-board rule. There was never any question whether nonreligious publishers would get the tax exemption accorded to religious publishers; by rule they did not, and the Court struck down that rule because it discriminated in favor of religion. By contrast, adjustments to existing school districts in New York are done case by case. No decision, including Texas Monthly, remotely suggests that approaching accommodations in a case-specific manner automatically violates the Establishment Clause.
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