dissenting:

Under today’s decision, the government may discriminate against people based on their exercise of religion, so long as the discriminatory burdens it imposes are not more substantial than requiring a blind child with cerebral palsy to leave his school building and go down the street to a fire hall. That is quite a surprise. Fortunately, that is not the law in most of the rest of the country. The Supreme Court, 1 and the Third, 2 Sixth, 3 and Eighth 4 Circuits have all held to the contrary — -the Eighth Circuit in a case materially identical to this one. Unfortunately, that will be the law in this circuit, if the majority opinion stands.

The reason that the majority gets the wrong answer is that it asks the wrong *1053 question. The majority formulates the question in this case as whether the regulation requiring special education to be provided in “a religiously-neutral setting” 5 imposes “an impermissible burden on [RDM’s and his parents’] free exercise of religion.” Because going down the street to the fire hall is only a slight inconvenience, the majority concludes that the government may burden religion to this extent, even though a student with the same afflictions in a private secular school would not have to go down the street to the fire hall for his special education services. As for why treating children in religious schools differently does not violate the Equal Protection Clause, the majority says that because religious school students are not a “suspect class,” a rational basis for the distinction is enough, and Oregon’s desire to avoid religiosity in education, in order to avoid anything that might amount to an establishment of religion, is a rational basis.

The technical reason why the majority’s formulation is wrong is that the majority asks a question developed in cases involving neutral laws of general applicability, even though, as the majority concedes, this case involves a non-neutral law. The substantial burden test has only been applied to free exercise challenges of neutral and generally applicable laws, and it survives Employment Division v. Smith, 6 if at all, only where “a neutral, generally applicable regulatory law” 7 implicates a combination of the Free Exercise Clause and another constitutional right, such as “the right of parents ... to direct the education of their children.” 8 The regulation at issue here is not neutral on its face. By requiring a “religiously-neutral setting,” the government expressly and intentionally discriminates against religious as opposed to secular private schools. Oregon could lawfully provide the services only in public and not in private schools. But having decided to provide the services in private schools, Oregon cannot discriminate against religious schools without violating the Constitution.

When the government, by a law not neutral on its face, treats people of one or all religions better or worse than others, the constitutional question is traditionally formulated so that the answer has to be “No!” Church of Lukumi Babalu Aye, Inc. v. Hialeah 9 states the test we are required to apply to non-neutral laws such as Oregon’s special education regulation. Such a law gets “the most rigorous of scrutiny,” must advance “‘interests of the highest order,’ ” and must be “narrowly tailored.” 10 That test, of course, is generally too stringent for any law to pass. Few laws singling out a particular religion or religion in general for special burdens, even slight burdens, can satisfy this test.

The law at issue in this case, requiring special education to be provided in “a religiously-neutral setting,” 11 violates RDM’s rights under the Free Exercise and Equal Protection Clauses. Handicapped children at secular private schools get special education in their schools, but handicapped children at religious private schools must leave school to get the same special education. This law violates the Constitution because it distinguishes between people and burdens some of them on account of their religious practices.

The majority puts us at odds with three other circuits to have considered analogous issues. In the rare cases where states have burdened religion, even insubstantially, by laws that are not neutral, courts *1054 have almost uniformly held the laws unconstitutional. The only circuit to have considered the proposition that today’s majority adopts, that plaintiffs must show a “substantial” or “impermissible” burden for a Free Exercise challenge, has rejected the proposition.

In Brown v. Borough of Mahaffey, 12 a municipality erected a gate on public land to obstruct travel through a park to revival services held on adjacent private land. Alternate access was available, and the obstruction was but a slight additional burden for those going to the revival. The Third Circuit rejected the municipality’s argument that the plaintiffs had failed to show that the gate imposed a substantial burden and held that “[t]he rare cases which address acts or laws which target religious activity have never limited liability to instances where a ‘substantial burden’ was proved by the plaintiff.” 13 The court explained that “[t]he ‘substantial burden’ requirement was developed in the Supreme Court’s free exercise jurisprudence ... in order to balance the tension between religious rights and valid government goals advanced by ‘neutral and generally applicable laws’ which create an incidental burden on religious exercise.” 14 “Because government actions intentionally discriminating against religious exercise a fortiori serve no legitimate purpose, no balancing test is necessary to cabin religious exercise in deference to such action.” 15

Similarly, in Hartmann v. Stone, 16 an army regulation forbid on-base child-care providers from using “[r]eligious materials or activities specifically designed to teach or promote religious doctrine.” 17 The Sixth Circuit held that because the regulation was not neutral and generally applicable, it had to be narrowly tailored to serve a compelling state interest; it was not, so the Sixth Circuit held that the Army Regulation violated the Free Exercise Clause. The court expressly rejected the proposition, accepted by today’s majority, that a state’s desire to assure the fullest compliance with the Establishment Clause was a sufficiently compelling interest to save the regulation.

Peter v. Wedl 18 is materially identical to the case we decide today, yet the Eighth Circuit reaches the opposite conclusion from today’s majority. In Peter, a Minnesota school district rule prohibited special education services from being provided except in religiously “neutral” schools, whether private or public. 19 The Eighth Circuit held that the rule violated the Free Exercise, the Free Speech, and the Equal Protection Clauses. “Government discrimination based on religion violates the Free Exercise Clause of the First Amendment.” 20 Like the Sixth Circuit in Hartmann, the Eighth Circuit expressly rejected Minnesota’s argument that the law was constitutionally valid because of the state’s interest in assiduous compliance with the Establishment Clause.

The majority has not offered any persuasive distinction between this case and the Supreme Court decision in Lukumi or the Third, Sixth, and Eighth Circuit decisions. The majority says Lukumi does not apply here because Oregon’s regulation does not have as its object suppression of religion or religious conduct. I am not sure why the majority thinks this is *1055 the right question to ask — government discrimination against one or all religions is unconstitutional even if suppression is not the object. “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs.... ” 21 Even if the extent of the burden mattered (which it does not because the Oregon regulation is not neutral toward religion), the exercise of religious convictions is substantially burdened here. Religions have commanded for at least three millennia that parents educate their children in their religious beliefs. “Therefore impress these My words upon your very heart: bind them as a sign on your hand and let them serve as a symbol on your forehead, and teach them to your children .... ” 22 Under Oregon’s regulation, if a blind child with cerebral palsy goes to a secular private school, he gets special education in his school, but if he goes to a religious private school, he has to take a trip down the street for special education. The Free Exercise Clause entitles people to live their lives in accord with their religious beliefs, not just to say their prayers, without having the government intentionally discriminate against them for doing so.

The majority attempts to limit Lukumi to situations where there is evidence that substantial animus to repress religion motivated the law in question. That is a misreading. Lukumi considered the anti-Santeria animus that motivated an arguably facially neutral law against animal sacrifice as a basis for treating the law as non-neutral. The Court held that “[f]acial neutrality is not determinative .... [because t]he Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination.” 23 Facial discrimination, on the other hand, is almost always determinative. The Free Exercise Clause protects against governmental hostility which is masked as well as overt.” 24 Once there is a non-neutral law, as the majority has conceded that we have here, the test under Lukumi is clear — “a law restrictive of religious practices must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.” 25 “Animus” reclassifies a facially neutral law as one that targets religion. “Animus” is immaterial here because the law at issue is not facially neutral, but treats people differently according to whether their school is religious.

The majority fails to adequately distinguish the Third, Sixth, and Eighth Circuit decisions. The majority claims to distinguish Brown, on the ground that it involved the deliberate burdening of a religious exercise, but that distinction is false; the Oregon regulation at issue here intentionally distinguishes between religious and “religiously-neutral” private schools. That is a deliberate burdening of one, and a benefítting of the other. The majority says Hartmann involved a regulation “banning all religious practices by day care providers on the base,” but does not say why this should be distinguished from banning all special education services in religious settings. They are the same for this purpose. The majority’s attempt to distinguish Peter makes no sense because, there, as here, the regulation allowed special education services only at a religiously “neutral site.” 26 The majority purports to rely on a fact that was irrelevant to the Eighth Circuit’s holding, and quotes only from dictum on an alternative argument that the Eighth Circuit did not reach. 27 That case and this one are, for analytic purposes, carbon copies.

*1056 There is no such thing as a de minimis exception to the Equal Protection Clause. 28 The government cannot discriminate against people because of their religion, even where the burden it imposes for that reason is only what the majority considers a slight inconvenience. And there is no such thing as a de minimis exception to the Establishment Clause. Lee v. Weism an 29 holds that the “embarrassment and the intrusion of the religious exercise cannot be refuted by arguing that [a clergyman’s] prayers [at a public school graduation ceremony], and similar ones to be said in the future, are of a de minimis character.” 30 It follows that there is also no such thing as a de minimis exception to the Free Exercise Clause.

The government can no more discriminate against religion in general than against a particular religion. The claimed interest of Oregon, on which today’s majority relies, “in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution' — is limited by the Free Exercise Clause.... ” 31 The school would not violate the Establishment Clause by providing the special education services to the handicapped child in this case, which it provides generally to all children in their public or private schools, in his religious school. 32 To the extent that Oregon bases the “religiously-neutral setting” regulation on a “better safe than sorry” approach to the Establishment Clause, the Free Exercise Clause prevents the government from making itself safe from Establishment Clause challenges by making adherents of religion sorry. The “First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.” 33 The Constitution mandates “neutrality between religion and non-religion.” 34 “Withholding access would leave an impermissible perception that religious activities are disfavored.” 35 Discriminating against religious schools in a program of otherwise general availability makes no sense as a strategy for avoiding an establishment of religion, because “treating everyone the same without regard to religion is hard to see as ‘establishing’ anything — except equality.” 36

One traditional test of the correctness of a legal proposition is to apply it to a case where we can be confident of the right answer, and see whether the proposition yields the wrong answer. We do the same thing to test a spreadsheet, by entering data where we know what the answer should be to see if the spreadsheet properly generates it. The majority today concludes that so long as the practice of religion is not more substantially burdened than requiring a blind child with cerebral palsy to leave his school building and go down the street for special education services, the government may treat that child less favorably than others on account of *1057 his religion. Will this rule yield the right answer if applied to something we would all agree was outrageous, say a government requirement that all Jews wear armbands displaying stars of David? I am confident that today’s majority would be as appalled as I am by such a law and would hold it unconstitutional, but it would be hard for the majority to get the right result from its holding in this case. The majority holds today that a law may impose a discriminatory burden on religion, so long as there is a rational purpose for the law and the burden is no greater than requiring a blind child with cerebral palsy to leave his school and go down the street for special education services. The physical burden of wearing the armband is far less. The historical associations with the armband are horrifying, but our government would doubtless have a more beneficent purpose and could articulate some rational basis, perhaps implementation of some public safety or antidiscrimination program. The hypothetical case could be modified to soften the historical association by positing a law requiring adherents of all religions to wear armbands announcing their faiths. Today’s majority says the only question is whether the special imposition on religion “impermissibly burden[s] ... the free exercise rights of KDM and his parents.” That cannot be so. Most religions allow their adherents to wear and display symbols of the faith, but that does not entitle the government to require such displays. As the armband example makes clear, and as Lukumi makes explicit, that is not the only question. Although the Oregon law imposes no stigma comparable to the armbands, children must learn from the Oregon regulation that their government regards religious schools as bad in some way, places in which it will not deign to provide services available in all other public and private schools, like the “impermissible” perception that religious activities are disfavored in Rosenberger.

The Free Exercise Clause prohibits government anticlericalism as vigorously as the Establishment Clause prohibits government from preferring a particular religion. Our revolution, unlike, say, the French, Mexican, or Russian, evinced no hostility to any organized religion. Our founding manifesto, the Declaration of Independence, says that people are “endowed by their Creator” with their fundamental rights. The Establishment Clause and the Free Exercise Clause are not in tension, as though- one said people can practice their religion, and the other said “but not in public.” The Free Exercise and Establishment Clauses complement each other, both advancing the purpose of freedom of religion. One guarantees individuals the right to freely exercise their religion, and the other assures that this free exercise will be unburdened by government preference for a different religion. 37 Americans are entitled to a government that does not discriminate against them because of their religion, even with burdens that those who do not bear them see as merely a slight inconvenience.

. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 , 113 S.Ct. 2217 , 124 L.Ed.2d 472 (1993).

. Brown v. Borough of Mahaffey, 35 F.3d 846 (3d Cir.1994).

. Hartmann v. Stone, 68 F.3d 973 (6th Cir.1995).

. Peter v. Wedl, 155 F.3d 992 (8th Cir.1998).

. Or. Admin. R. 581 -15-166(3).

. Employment Div. v. Smith, 494 U.S. 872 , 110 S.Ct. 1595 , 108 L.Ed.2d 876 (1990).

. Id. at 880 , 110 S.Ct. 1595 .

. Id. at 881 , 110 S.Ct. 1595 .

. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 , 113 S.Ct. 2217 , 124 L.Ed.2d 472 (1993).

. Id. at 546 , 113 S.Ct. 2217 .

. Or. Admin. R. 581 -15-166(3).

. Brown v. Borough of Mahaffey, 35 F.3d 846, 849 (3rd Cir.1994).

. Id. at 850 .

. Id.

. Id.

. Hartmann v. Stone, 68 F.3d 973, 979 (6th Cir.1995).

. See id. at 977 .

. Peter v. Wedl, 155 F.3d 992 (8th Cir.1998).

. See id. at 994.

. Id. at 995.

. Lukumi, 508 U.S. at 532 , 113 S.Ct. 2217 .

. Deuteronomy 11:18-19 (emphasis added).

. Lukumi, 508 U.S. at 534 , 113 S.Ct. 2217 .

. Id.

. Id. at 546 , 113 S.Ct. 2217 .

. Id. at 994.

. See id. at 1001.

. Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 712 (9th Cir.1997).

. Lee v. Weisman, 505 U.S. 577 , 112 S.Ct. 2649 , 120 L.Ed.2d 467 (1992).

. Id. at 594 , 112 S.Ct. 2649 .

. Widmar v. Vincent, 454 U.S. 263, 276 , 102 S.Ct. 269 , 70 L.Ed.2d 440 (1981). Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 846 , 115 S.Ct. 2510 , 132 L.Ed.2d 700 (1995) ("There is no Establishment Clause violation in the University’s honoring its duties under the Free Speech Clause.”); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 394 , 113 S.Ct. 2141 , 124 L.Ed.2d 352 (1993) (rejecting compelling state interest in avoiding Establishment Clause violation).

. Zobrest v. Catalina Foothills School District, 509 U.S. 1 , 113 S.Ct. 2462 , 125 L.Ed.2d 1 (1993).

. Lukumi, 508 U.S. at 532 , 113 S.Ct. 2217 .

. Hartmann, 68 F.3d at 978 .

. Rosenberger, 515 U.S. at 846 , 115 S.Ct. 2510 (O’Connor, concurring) (summarizing the principle of neutrality toward religion).

. Eugene Volokh, Equal Treatment Is Not Establishment, 13 Notre Dame J.L. Ethics & Public Policy 341, 345 (1999).

. See Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115 , 117 (1992).