Mitchell v. Helms, 530 U.S. 793, 51 (2000)

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844

MITCHELL v. HELMS

O'Connor, J., concurring in judgment

to religious organizations (including churches) based on the number of persons belonging to each organization. And, because actual diversion is permissible under the plurality's holding, the participating religious organizations (including churches) could use that aid to support religious indoctrination. To be sure, the plurality does not actually hold that its theory extends to direct money payments. See ante, at 818-820. That omission, however, is of little comfort. In its logic—as well as its specific advisory language, see ante, at 819-820, n. 8—the plurality opinion foreshadows the approval of direct monetary subsidies to religious organizations, even when they use the money to advance their religious objectives.

Our school aid cases often pose difficult questions at the intersection of the neutrality and no-aid principles and therefore defy simple categorization under either rule. As I explained in Rosenberger, "[r]esolution instead depends on the hard task of judging—sifting through the details and determining whether the challenged program offends the Establishment Clause. Such judgment requires courts to draw lines, sometimes quite fine, based on the particular facts of each case." 515 U. S., at 847 (concurring opinion). Agostini represents our most recent attempt to devise a general framework for approaching questions concerning neutral school aid programs. Agostini also concerned an Establishment Clause challenge to a school aid program closely related to the one at issue here. For these reasons, as well as my disagreement with the plurality's approach, I would decide today's case by applying the criteria set forth in Agostini.

II

In Agostini, after reexamining our jurisprudence since School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985), we explained that the general principles used to determine whether government aid violates the Establishment Clause have remained largely unchanged. 521 U. S., at 222. Thus,

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