768
Opinion of Scalia, J.
would find themselves in a vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other. Every proposed act of private, religious expression in a public forum would force officials to weigh a host of imponderables. How close to government is too close? What kind of building, and in what context, symbolizes state authority? If the State guessed wrong in one direction, it would be guilty of an Establishment Clause violation; if in the other, it would be liable for suppressing free exercise or free speech (a risk not run when the State restrains only its own expression).
The "transferred endorsement" test would also disrupt the settled principle that policies providing incidental benefits to religion do not contravene the Establishment Clause. That principle is the basis for the constitutionality of a broad range of laws, not merely those that implicate free-speech issues, see, e. g., Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986); Mueller v. Allen, 463 U. S. 388 (1983). It has radical implications for our public policy to suggest that neutral laws are invalid whenever hypothetical observers may—even reasonably—confuse an incidental benefit to religion with state endorsement.3
3 If it is true, as Justice O'Connor suggests, post, at 775, that she would not "be likely to come to a different result from the plurality where truly private speech is allowed on equal terms in a vigorous public forum that the government has administered properly," then she is extending the "endorsement test" to private speech to cover an eventuality that is "not likely" to occur. Before doing that, it would seem desirable to explore the precise degree of the unlikelihood (is it perhaps 100%?)—for as we point out in text, the extension to private speech has considerable costs. Contrary to what Justice O'Connor, Justice Souter, and Justice Stevens argue, the endorsement test does not supply an appropriate standard for the inquiry before us. It supplies no standard whatsoever. The lower federal courts that Justice O'Connor's concurrence identifies as having "applied the endorsement test in precisely the context before us today," ibid., have reached precisely differing results—which is what led the Court to take this case. And if further proof of the invited chaos
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