696
Souter, J., dissenting
free choice, the facts show that, in the majority's hands, even these criteria cannot convincingly legitimize the Ohio scheme.
A
Consider first the criterion of neutrality. As recently as two Terms ago, a majority of the Court recognized that neutrality conceived of as evenhandedness toward aid recipients had never been treated as alone sufficient to satisfy the Establishment Clause, Mitchell, 530 U. S., at 838-839 (O'Connor, J., concurring in judgment); id., at 884 (Souter, J., dissenting). But at least in its limited significance, formal neutrality seemed to serve some purpose. Today, however, the majority employs the neutrality criterion in a way that renders it impossible to understand.
Neutrality in this sense refers, of course, to evenhandedness in setting eligibility as between potential religious and secular recipients of public money. Id., at 809-810 (plurality opinion); id., at 878-884 (Souter, J., dissenting) (three senses of "neutrality").6 Thus, for example, the aid scheme in Witters provided an eligible recipient with a scholarship to be used at any institution within a practically unlimited universe of schools, 474 U. S., at 488; it did not tend to provide more or less aid depending on which one the scholarship recipient chose, and there was no indication that the maximum scholarship amount would be insufficient at secular
6 Justice O'Connor apparently no longer distinguishes between this notion of evenhandedness neutrality and the free-exercise neutrality in Everson. Compare ante, at 669 (concurring opinion), with Mitchell, 530 U. S., at 839 (opinion concurring in judgment) ("Even if we at one time used the term 'neutrality' in a descriptive sense to refer to those aid programs characterized by the requisite equipoise between support of religion and antagonism to religion, Justice Souter's discussion convincingly demonstrates that the evolution in the meaning of the term in our jurisprudence is cause to hesitate before equating the neutrality of recent decisions with the neutrality of old").
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