750
Scalia, J., dissenting
dations only by general legislation, see ante, at 722, 726, his own approach is little different. He says the village is constitutional because it was formed (albeit by members of a single religious sect) under a general New York law; but he finds the school district unconstitutional because it was the product of a specific enactment. In the end, his analysis is no different from the Court's.
Justice Kennedy expresses the view that School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985), and Aguilar v. Felton, 473 U. S. 402 (1985)—the cases that created the need for the Kiryas Joel legislation by holding unconstitutional state provision of supplemental educational services in sectarian schools—"may have been erroneous," and he suggests that "it may be necessary for us to reconsider them at a later date." Ante, at 731. Justice O'Connor goes even further and expresses the view that Aguilar should be overruled. Ante, at 717-718. I heartily agree that these cases, so hostile to our national tradition of accommodation, should be overruled at the earliest opportunity; but meanwhile, today's opinion causes us to lose still further ground, and in the same antiaccommodationist direction.
Finally, Justice O'Connor observes that the Court's opinion does not focus on the so-called Lemon test, see Lemon v. Kurtzman, 403 U. S. 602 (1971), and she urges that that test be abandoned, at least as a "unitary approach" to all Establishment Clause claims, ante, at 721. I have previously documented the Court's convenient relationship with Lemon, which it cites only when useful, see Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 397-401 (1993) (Scalia, J., concurring in judgment), and I no longer take any comfort in the Court's failure to rely on it in any particular case, as I once mistakenly did, see Lee v. Weisman, 505 U. S. 577, 644 (1992) (Scalia, J., dissenting). But the Court's snub of Lemon today (it receives only two "see also" citations, in the course of the opinion's description of
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