Mitchell v. Helms, 530 U.S. 793, 85 (2000)

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878

MITCHELL v. HELMS

Souter, J., dissenting

cases have, however, recognized that in actual Establishment Clause litigation over school aid legislation, there is no pure aid to religion and no purely secular welfare benefit; the effects of the laws fall somewhere in between, with the judicial task being to make a realistic allocation between the two possibilities. The Court's decisions demonstrate its repeated attempts to isolate considerations relevant in classifying particular benefits as between those that do not discernibly support or threaten support of a school's religious mission, and those that cross or threaten to cross the line into support for religion.

II

A

The most deceptively familiar of those considerations is "neutrality," the presence or absence of which, in some sense, we have addressed from the moment of Everson itself. I say "some sense," for we have used the term in at least three ways in our cases, and an understanding of the term's evolution will help to explain the concept as it is understood today, as well as the limits of its significance in Establishment Clause analysis. "Neutrality" has been employed as a term to describe the requisite state of government equipoise between the forbidden encouragement and discouragement of religion; to characterize a benefit or aid as secular; and to indicate evenhandedness in distributing it.

As already mentioned, the Court first referred to neutrality in Everson, simply stating that government is required "to be a neutral" among religions and between religion and nonreligion. 330 U. S., at 18. Although "neutral" may have carried a hint of inaction when we indicated that the First Amendment "does not require the state to be [the] adversary" of religious believers, ibid., or to cut off general government services from religious organizations, Everson provided no explicit definition of the term or further indication of what the government was required to do or not do to be

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