Mitchell v. Helms, 530 U.S. 793, 82 (2000)

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

Souter, J., dissenting

tions could enjoy consistently with the prohibition against aid, and that governments could extend without deserting their required position of neutrality.

But paradigms are not perfect fits very often, and government spending resists easy classification as between universal general service or subsidy of favoritism. The 5-to-4 division of the Everson Court turned on the inevitable question whether reimbursing all parents for the cost of transporting their children to school was close enough to police protection to tolerate its indirect benefit in some degree to religious schools, with the majority in Everson thinking the reimbursement statute fell on the lawful side of the line. Although the state scheme reimbursed parents for transporting children to sectarian schools, among others, it gave "no money to the schools. It [did] not support them. Its legislation [did] no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools." Id., at 18. The dissenters countered with factual analyses showing the limitation of the law's benefits in fact to private school pupils who were Roman Catholics, id., at 20 (Jackson, J., dissenting), and indicating the inseparability of transporting pupils to school from support for the religious instruction that was the school's raison d'être, id., at 45-46 (Rutledge, J., dissenting).

Everson is usefully understood in the light of a successor case two decades later, Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (1968), in which the challenged government practice was lending textbooks to pupils of schools both public and private, including religious ones (as to which there was no evidence that they had previously supplied books to their classes and some evidence that they had not, id., at 244, n. 6). By the time of Allen, the problem of classifying the state benefit, as between aid to religion and general public service consistent with government neutral-

875

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