Mitchell v. Helms, 530 U.S. 793, 46 (2000)

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Cite as: 530 U. S. 793 (2000)

O'Connor, J., concurring in judgment

in judgment); Mueller v. Allen, 463 U. S. 388, 397-399 (1983). Nevertheless, we have never held that a government-aid program passes constitutional muster solely because of the neutral criteria it employs as a basis for distributing aid. For example, in Agostini, neutrality was only one of several factors we considered in determining that New York City's Title I program did not have the impermissible effect of advancing religion. See 521 U. S., at 226-228 (noting lack of evidence of inculcation of religion by Title I instructors, legal requirement that Title I services be supplemental to regular curricula, and that no Title I funds reached religious schools' coffers). Indeed, given that the aid in Agostini had secular content and was distributed on the basis of wholly neutral criteria, our consideration of additional factors demonstrates that the plurality's rule does not accurately describe our recent Establishment Clause jurisprudence. See also Zobrest, supra, at 10, 12-13 (noting that no government funds reached religious school's coffers, aid did not relieve school of expense it otherwise would have assumed, and aid was not distributed to school but to the child).

Justice Souter provides a comprehensive review of our Establishment Clause cases on government aid to religious institutions that is useful for its explanation of the various ways in which we have used the term "neutrality" in our decisions. See post, at 878-883. Even if we at one time used the term "neutrality" in a descriptive sense to refer to those aid programs characterized by the requisite equipoise between support of religion and antagonism to religion, Justice Souter's discussion convincingly demonstrates that the evolution in the meaning of the term in our jurisprudence is cause to hesitate before equating the neutrality of recent decisions with the neutrality of old. As I have previously explained, neutrality is important, but it is by no means the only "axiom in the history and precedent of the Establishment Clause." Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 846 (1995) (concurring opinion). Thus,

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