Mitchell v. Helms, 530 U.S. 793, 92 (2000)

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

Souter, J., dissenting

at 16 (discussing aid that approaches the "verge" of forbidden territory); Lemon, 403 U. S., at 612 ("[W]e can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law"); Nyquist, 413 U. S., at 760- 761 (noting the "most perplexing questions" presented in this area and acknowledging " 'entangl[ing] precedents' "); Mueller, 463 U. S., at 393 (quoting Lemon); Witters, 474 U. S., at 485 (quoting Lemon).

Hence, if we looked no further than evenhandedness, and failed to ask what activities the aid might support, or in fact did support, religious schools could be blessed with government funding as massive as expenditures made for the benefit of their public school counterparts, and religious missions would thrive on public money. This is why the consideration of less than universal neutrality has never been recognized as dispositive and has always been teamed with attention to other facts bearing on the substantive prohibition of support for a school's religious objective.

At least three main lines of enquiry addressed particularly to school aid have emerged to complement evenhandedness neutrality. First, we have noted that two types of aid recipients heighten Establishment Clause concern: pervasively religious schools and primary and secondary religious schools. Second, we have identified two important characteristics of the method of distributing aid: directness or indirectness of distribution and distribution by genuinely independent choice. Third, we have found relevance in at least five characteristics of the aid itself: its religious content; its cash form; its divertibility or actually diversion to religious support; its supplantation of traditional items of religious school expense; and its substantiality.

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Two types of school aid recipients have raised special concern. First, we have recognized the fact that the overriding religious mission of certain schools, those sometimes called

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