900
Souter, J., dissenting
III
A
The nub of the plurality's new position is this:
"[I]f the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose. The government, in crafting such an aid program, has had to conclude that a given level of aid is necessary to further that purpose among secular recipients and has provided no more than that same level to religious recipients." Ante, at 810 (citation omitted).
As a break with consistent doctrine the plurality's new criterion is unequaled in the history of Establishment Clause interpretation. Simple on its face, it appears to take evenhandedness neutrality and in practical terms promote it to a single and sufficient test for the establishment constitutionality of school aid. Even on its own terms, its errors are manifold, and attention to at least three of its mistaken assumptions will show the degree to which the plurality's proposal would replace the principle of no aid with a formula for generous religious support.
First, the plurality treats an external observer's attribution of religious support to the government as the sole impermissible effect of a government aid scheme. See, e. g., ante, at 809 ("[N]o one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government"). While perceived state endorsement of religion is undoubtedly a relevant concern under the Establishment Clause, see, e. g., Allegheny County, 492 U. S., at 592-594; see also Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 772-774 (1995) (O'Connor, J., concurring in part and concurring in
Page: Index Previous 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 NextLast modified: October 4, 2007