Mitchell v. Helms, 530 U.S. 793, 23 (2000)

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816

MITCHELL v. HELMS

Opinion of Thomas, J.

merely to prevent "subsidization" of religion, see id., at 394. As even the dissent all but admits, see post, at 889 (opinion of Souter, J.), our more recent cases address this purpose not through the direct/indirect distinction but rather through the principle of private choice, as incorporated in the first Agostini criterion (i. e., whether any indoctrination could be attributed to the government). If aid to schools, even "direct aid," is neutrally available and, before reaching or benefiting any religious school, first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided any "support of religion," Witters, supra, at 489. See supra, at 810. Although the presence of private choice is easier to see when aid literally passes through the hands of individuals—which is why we have mentioned directness in the same breath with private choice, see, e. g., Agostini, 521 U. S., at 226; Witters, supra, at 487; Mueller, supra, at 399—there is no reason why the Establishment Clause requires such a form.

Indeed, Agostini expressly rejected the absolute line that respondents would have us draw. We there explained that "we have departed from the rule relied on in Ball that all government aid that directly assists the educational function of religious schools is invalid." 521 U. S., at 225. Agostini relied primarily on Witters for this conclusion and made clear that private choice and neutrality would resolve the concerns formerly addressed by the rule in Ball. It was undeniable in Witters that the aid (tuition) would ultimately go to the Inland Empire School of the Bible and would support religious education. We viewed this arrangement, however, as no different from a government issuing a paycheck to one of its employees knowing that the employee would direct the funds to a religious institution. Both arrangements would be valid, for the same reason: "[A]ny money that ultimately went to religious institutions did so 'only as a result of the genuinely independent and private choices of' individuals."

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