592
Scalia, J., concurring in judgment
in no way increases the odds that the panel will take the factors into consideration—much less ensures that the panel will do so, which is the Chairperson's duty under the statute. Moreover, the NEA's fanciful reading of § 954(d)(1) would make it wholly superfluous. Section 959(c) already requires the Chairperson to "issue regulations and establish procedures . . . to ensure that all panels are composed, to the extent practicable, of individuals reflecting . . . diverse artistic and cultural points of view."
The statute requires the decency and respect factors to be considered in evaluating all applications—not, for example, just those applications relating to educational programs, ante, at 584, or intended for a particular audience, ante, at 585. Just as it would violate the statute to apply the artistic excellence and merit requirements to only select categories of applications, it would violate the statute to apply the decency and respect factors less than universally. A reviewer may, of course, give varying weight to the factors depending on the context, and in some categories of cases (such as the Court's example of funding for symphony orchestras, ante, at 583) the factors may rarely if ever affect the outcome; but § 954(d)(1) requires the factors to be considered in every case.
I agree with the Court that § 954(d)(1) "imposes no categorical requirement," ante, at 581, in the sense that it does not require the denial of all applications that violate general standards of decency or exhibit disrespect for the diverse beliefs and values of Americans. Cf. § 954(d)(2) ("[O]bscenity . . . shall not be funded"). But the factors need not be conclusive to be discriminatory. To the extent a particular applicant exhibits disrespect for the diverse beliefs and values of the American public or fails to comport with general standards of decency, the likelihood that he will receive a grant diminishes. In other words, the presence of the "tak[e] into consideration" clause "cannot be regarded as mere surplusage; it means something," Potter v. United
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