726
Scalia, J., dissenting
Justice Scalia, with whom Justice Thomas joins, dissenting.
In Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), the majority opinion held that "[a] law burdening religious practice that is not neutral . . . must undergo the most rigorous of scrutiny," id., at 546, and that "the minimum requirement of neutrality is that a law not discriminate on its face," id., at 533. The concurrence of two Justices stated that "[w]hen a law discriminates against religion as such, . . . it automatically will fail strict scrutiny." Id., at 579 (Blackmun, J., joined by O'Connor, J., concurring in judgment). And the concurrence of a third Justice endorsed the "noncontroversial principle" that "formal neutrality" is a "necessary conditio[n] for free-exercise constitutionality." Id., at 563 (Souter, J., concurring in part and concurring in judgment). These opinions are irreconcilable with today's decision, which sustains a public benefits program that facially discriminates against religion.
I
We articulated the principle that governs this case more than 50 years ago in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947):
"New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." Id., at 16 (emphasis deleted).
When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds
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