dissenting from the denial of rehearing en banc, joined by
KOZINSKI, Chief Judge, KLEINFELD, GOULD, TALLMAN, BYBEE, BEA, and N.R. SMITH, Circuit Judges:This case involves an Establishment Clause challenge to an Arizona educational tax credit program that provides scholarships to students wishing to attend private schools. This case is more notable, however, for what it does not involve: state action advancing religion. The government does not direct any aid to any reli*659gious school. Nor does the government encourage, promote, or otherwise incentivize private actors to direct aid to religious schools. Rather, “state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals.” Zelman v. Simmons-Harris, 536 U.S. 639, 655, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002).
Unable to find any forbidden state action, the district court correctly dismissed the case on the pleadings. Sadly, our three-judge panel reversed. See Winn v. Ariz. Christian Sch. Tuition Org., 562 F.3d 1002 (9th Cir.2009). Because a program of scrupulous “governmental neutrality between religion and religion, and between religion and nonreligion,” Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), cannot violate the Establishment Clause, I respectfully dissent from our full court’s regrettable denial of rehearing en banc.
I dissent not only because Winn cannot be squared with the Supreme Court’s mandate in Zelman, but also because the panel’s holding casts a pall over comparable educational tax-credit schemes in states across the nation and could derail legislative efforts in four states within our circuit to create similar programs.1 In short, the panel’s conclusion invalidates an increasingly popular method for providing school choice, jeopardizing the educational opportunities of hundreds of thousands of children nationwide.2
I
Arizona law (“Section 1089”) allows individuals voluntarily to contribute money to private, nonprofit corporations known as “student tuition organizations” (“STOs”). Ariz.Rev.Stat. Ann. § 43-1089(A). Anyone can form an STO, and there are no constraints on a taxpayer’s ability to donate to an STO of his choice. Should a taxpayer elect to direct funds to an STO, that contribution is refunded via tax credits of up to $500 for individual taxpayers and up to $1000 for married couples filing jointly.3 Id.
STOs use these funds to provide scholarships and tuition grants to students attending schools within the state. Id. § 43-*6601089(G). While essentially any private school is statutorily eligible to receive scholarship monies,4 STOs may choose which institutions they will support, so long as they provide funds to more than one school. Id,.5 Parents then decide which private school they would like their child to attend, and apply for scholarships from appropriate STOs.
In sum, the state’s involvement stops with authorizing the creation of STOs and making tax credits available. After that, the government takes its hands off the wheel. Anyone can create an STO. Anyone can contribute to any STO and receive identical tax benefits. Anyone can apply for any scholarship offered by any STO.
Shortly after Section 1089’s enactment, the Arizona Supreme Court held that the statute, on its face, did not violate the Establishment Clause. See Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (1999). Taxpayer plaintiffs then brought this federal action, which was dismissed by the district court under the Tax Injunction Act. See Winn v. Killian, 307 F.3d 1011, 1013 (9th Cir.2002). After the suit was reinstated, see id. at 1020; see also Hibbs v. Winn, 542 U.S. 88, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004) (affirming our opinion reversing its dismissal), the district court again dismissed the action, this time on federal constitutional grounds, see Winn v. Hibbs, 361 F.Supp.2d 1117 (D.Ariz.2005).
Plaintiffs appealed. They allege (and no one disputes) that in practice, some STOs make their scholarships available only to students willing to attend religiously affiliated schools. Winn, 562 F.3d at 1006. While the majority of STOs do not so limit their scholarships,6 plaintiffs maintain that those that do receive the overwhelming majority of taxpayer contributions. See id. Consequently, they assert that the pool of available scholarship money is diminished for parents wishing to send their children to secular schools. See id. Plaintiffs contend that this disparity means Section 1089, as applied, impermissibly favors religion over nonreligion. See id.
The three-judge panel agreed and reversed the district court’s dismissal, holding that “if plaintiffs’ allegations are accepted as true, Section 1089 violates the Establishment Clause.” See id. at 1013. Concluding that the nature of the tax credit made taxpayer contributions tantamount to government funds, the panel found that Section 1089 potentially violated both the purpose and effects prongs of Lemon v. Kurtzman, 403 U.S. 602, 603, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). See id. at 1011-23. The fact that taxpayers directed the majority of available funds to religious schools, the panel reasoned, deprived parents of a “genuinely independent and private choice[]” to send their children to secular private schools. Id. at 1013 (internal quotation marks and citation omitted). Accordingly, Section 1089 was not a “neutral program of private choice and a reasonable observer could ... conclude that the aid reaching religious schools ... car*661ries with it the imprimatur of government endorsement.” Id. at 1013-14 (internal quotation marks and citation omitted).7
II
I have no bone to pick with the manner in which the panel frames the basic constitutional inquiry. We all understand that the Establishment Clause “prevents a State from enacting laws that have the ‘purpose’ or ‘effect’ of advancing or inhibiting religion.” Zelman, 536 U.S. at 648-49, 122 S.Ct. 2460. More often than not, the Court determines whether these commands have been violated by asking whether a “reasonable observer,” who is “aware of the history and context underlying a challenged program,” would conclude that the state has “endorsed” religion. Id. at 655, 122 S.Ct. 2460 (internal quotation marks and citation omitted).
The panel’s heavy emphasis on Zelman is also warranted. In that case, the Supreme Court upheld an Ohio school voucher program that provided tuition aid to Cleveland families on the basis of need. Id. at 644-45, 122 S.Ct. 2460. The vouchers were distributed directly to parents, who could choose to use the scholarship money at any participating private, community, magnet, or public school. Id. at 645-46, 122 S.Ct. 2460. The Court ruled that a “neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals” does not violate the Establishment Clause. Id. at 655, 122 S.Ct. 2460.
It is in the application of these standards, however, that the three-judge panel lost the forest for the trees. In doing so, it reached a result that simply cannot be reconciled with Zelmanf.8
III
The panel is correct that a law may not have the “forbidden ‘effect’ of advancing ... religion.” Id. at 649, 122 S.Ct. 2460. What the panel seems to neglect, however, is that “[f]or a law to have forbidden ‘effects’ under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence.” Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 337, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987).9
I must confess that I am at a loss to understand how a reasonable observer— one fully informed about all matters related to the program — could conclude that the “government itself” has endorsed reli*662gion in this case. Multiple layers of private, individual choice separate the state from any religious entanglement: the “government itself” is at least four times removed from any aid to religious organizations. First, an individual or group of individuals must choose to create an STO. Second, that STO must then decide to provide scholarships to religious schools. Third, taxpayers have to contribute to the STO in question. Finally, parents need to apply for a scholarship for their student. In every respect and at every level, these are purely private choices, not government policy. Under such circumstances, “government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment.” Zelman, 536 U.S. at 652-53, 122 S.Ct. 2460 (internal quotation marks and citation omitted). Only after passing through choice piled upon choice do government funds reach religious organizations. That is not government endorsement: that is government nonchalance.10
To illustrate my point, consider the following hypothetical. Assume the exact statutory scheme embodied in Section 1089: anyone can create an STO, anyone can donate to an STO, and STOs can limit their scholarships to particular types of schools. Now imagine that only agnostics decide to create STOs. Imagine further that every STO refuses to provide tuition assistance to religious schools. In short, assume there is absolutely no money available for parents who want to send their children to a religious school. Would the parents be justified in accusing the government of depriving their children of school funds? Of course not.
The foregoing example plainly shows that in this case, any “endorsement” of religion arising from the disbursement of state funds to religious entities turns wholly and completely on the independent, uncoerced choices of private individuals. The system Arizona created could just as easily have resulted in a total dearth of funding for religious organizations as opposed to the surfeit allegedly available. This feast or famine is utterly out of the state’s hands. It simply cannot be, as the panel claims, that the “scholarship program ... skews aid in favor of religious schools.” Winn, 562 F.3d at 1013 (emphasis added). The “program” does no such thing: any “skewing]” that occurs takes place because of private, not government action. It is axiomatic that such action cannot violate the Establishment Clause.
A
The panel however, believes that under this multi-tiered system, choice is the culprit, not the savior. After all, plaintiffs allege that it is “the choice delegated to taxpayers” which “channels a disproportionate amount of government aid to sectarian STOs [that] limit their scholarships to use at religious schools.” Id. Zelman, the panel maintains, focused on parental choice. Id. at 1018. Here, however, that choice is purported impermissibly to be *663“constrained” by the decisions of taxpayers and STOs. Id. at 1016. In other words, the choices of others deprive parents of their own “independent and private choice[].” Id. at 1013 (internal quotation marks and citation omitted). They might want to send their children to secular private schools, but scholarships are not readily available for that purpose. Moreover, the panel claims the alleged abundance of funds from religious STOs creates an incentive for these parents to enroll their children in religious schools. Id. at 1017-18. The panel therefore holds that Section 1089 “fails to provide genuine opportunities for ... parents to select secular educational options for their school-age children.” Id. at 1018 (internal quotation marks and citation omitted).
I admit that the panel’s conclusion with respect to the purported lack of parental choice finds support in Zelman. The problem is, that support comes from Justice Souter’s dissent, not the opinion of the Court. Several aspects of the majority’s reasoning in that case make the Winn panel’s conclusion infirm.
1
By focusing generally on the scope of parental choice, the Winn panel, like the Zelman dissent, is barking up the wrong tree. The question is not whether a parent’s choice is somehow limited or constrained, the question is whether the government has somehow limited or constrained the choice.
In Zelman, Justice Souter accused the majority of allowing external factors to “influencie] choices in a way that aims the money in a religious direction.” 536 U.S. at 703, 122 S.Ct. 2460 (Souter, J., dissenting). Of the fifty-six private schools that participated in the Cleveland voucher program, he noted, forty-six were religious. Id. In his mind, this lack of a “wide array of private nonreligious options” suggested that any “choice” was not genuine. See id. at 703-06, 122 S.Ct. 2460. Rather, he believed parents’ decisionmaking process was skewed by “the fact that too few nonreligious school desks are available and few but religious schools can afford to accept more than a handful of voucher students.” Id. at 707, 122 S.Ct. 2460. “For the overwhelming number of children in the voucher scheme,” he concluded, “the only alternative to the public schools is religious.” Id. He was not swayed by the fact that these constraints were unrelated to state action: “a Hobson’s choice is not a choice, whatever the reason for being Hobsonian.” Id. In sum, Justice Souter would have struck down the Ohio voucher program because parents’ choice was influenced by factors beyond their control.
Obviously, Justice Souter’s position did not carry the day. “That 46 of the 56 private schools now participating in the program are religious schools,” the majority explained, “does not condemn it as a violation of the Establishment Clause.” Id. at 655, 122 S.Ct. 2460 (majority opinion). For one thing, the Court noted that the imbalance was not a function of government action. See id. at 656-57, 122 S.Ct. 2460. Moreover, “[t]o attribute constitutional significance” to the availability of secular options, “would lead to the absurd result that a neutral school-choice program might be permissible in ... some states [with a high concentration of secular schools], but not in other States [where religious schools are plentiful].” Id. at 657, 122 S.Ct. 2460.11 To avoid this ab*664surdity, the majority held that “[t]he constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time,12 most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school.” Id. at 658, 122 S.Ct. 2460.13
I see no meaningful distinction between the situation in Zelman and the facts of this case. Both cases involve alleged “constraints” on access to a scarce secular resource — “nonreligious [private] school desks.” In Zelman, only ten of the participating schools were secular. Id. at 656, 122 S.Ct. 2460. Parents were thus “constrained” by third-party decisions to fund religious, rather than secular schools. Here, while thirty out of fifty-five STOs offer scholarships to secular schools, the majority of program funds are allegedly concentrated in religious STOs. Parents are thus “constrained” by the decisions of some STOs to limit their scholarships to religious institutions, and taxpayer choices to direct their funds to those STOs. The key point is that in neither Zelman nor the case at hand are the purported “constraints” government-induced. There is simply no constitutionally significant distinction between a system where — for reasons unattributable to state action — money is available, but there are a limited number of schools to receive it, and a system where schools may be available, but there is a limited amount of money to spend. Under either scenario, as Justice Souter bemoaned, “[f]or the overwhelming number of children in the [program], the only alternative to the public schools is religious.” Id. at 707, 122 S.Ct. 2460 (Souter, J., dissenting).
I can go on. In Zelman, voucher funds could be used at participating public schools in districts adjacent to Cleveland. Id. at 645, 122 S.Ct. 2460 (majority opinion). However, no such school “elected to participate.” Id. at 647, 122 S.Ct. 2460. Parental choice was therefore “constrained” by the decisions of out-of-district public school administrators. Similarly, Ohio did not require private secular schools to accept vouchers: they chose to do so. See id. at 656 n. 4, 122 S.Ct. 2460. Citing overcrowding or a desire for independence from government funds, these schools could just as easily have decided to opt out of the program. Alternatively, they could have, for whatever reason, decided to close up shop. In either scenario, parents again would be left with a reduced “choice” to send their children to private, secular schools. Did the Zelman Court strike down the Ohio program for impermissibly “delegating” such decisions to school administrators? Was parental choice held to be unduly “constrained”? Of course not. Instead, the Court said that the availability of a private secular *665education, “in a particular area, at a particular time,” was irrelevant to the constitutional inquiry. See Zelman, 536 U.S. at 656-60, 122 S.Ct. 2460; supra pp. 663-64.14
Ultimately, the panel seems to assume that parents must have the same access to “nonreligious [private] school desks” as they do to religious private school desks. But that was certainly not the case in Zelman, and the Ohio voucher program was upheld. Indeed, such result is unattainable in any program where the government is neutral with respect to religion and nonreligion. If the government takes the constitutionally required hands-off approach, external factors "will define the playing field. Contrary to the panel’s conclusion, the constitutional inquiry “simply does not turn” on whatever influence these factors might exert on parents. Zelman, 536 U.S. at 658, 122 S.Ct. 2460.
Again, provided there is “no evidence that the State deliberately skewed incentives toward religious schools,” there is no Establishment Clause violation. Id. at 650, 122 S.Ct. 2460 (emphasis added); see supra pp. 661-62. As the Arizona tax credit program is just as much a program of “true private choice” as the program in Zelman, 536 U.S. at 649, 122 S.Ct. 2460, the panel erred in reinstating the constitutional challenge.15
2
In rejecting Justice Souter’s position, the Zelman majority also emphasized that he was asking the wrong question. Rather than focusing narrowly on the challenged voucher program, the majority explained that the “Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a[voucher].” Id. at 655-56, 122 S.Ct. 2460. Because the Winn panel adopts Justice Souter’s overly restrictive approach, rather than assessing “all options” available to Arizona students, its result is similarly flawed.16
Indeed, the panel overtly limited its parental-choice inquiry to “the range of educational choices the STO-administered scholarship programs offer.” Winn, 562 F.3d at 1018. It “rejected] the suggestion that the mere existence of the public school system guarantees that any scholarship program provides for genuine private choice.” Id. While the latter statement may be true, it is also something of a non sequitur. No one claims the existence of a public school system grants a state license *666to ignore the Establishment Clause. The question, as Zelman instructs, is whether Arizona is “coercing parents into sending their children to religious schools,” a question which must be answered by evaluating “all options” Arizona provides its schoolchildren. 536 U.S. at 655-56, 122 S.Ct. 2460.
The panel did not even engage in this inquiry. Had it done so, it would have discovered that Section 1089 is but one of a “range of educational choices” available to parents of school-aged children. Id. at 655, 122 S.Ct. 2460; see also Kotterman, 972 P.2d at 611 (noting that the “Arizona Legislature has, in recent years, expanded the options available in public education” and listing some of those options). Arizona’s public schools must provide for open enrollment, allowing parents to send their children, tuition-free, to schools of their choice. Ariz.Rev.Stat. Ann. § 15-816.01(A). Tax credits are available for donations to public schools for “extracurricular activities or character education.” Ariz.Rev.Stat. Ann. § 43-1089.01. An extensive system of charter schools “provide[s] additional academic choices for parents and pupils.” Id. § 15-181.17 Homeschooling is permitted and protected. Id. §§ 15-745, 802-03. Indeed, Section 1089 itself offers parents yet another alternative: they can create their own STO and solicit donations for use at secular private schools. These alternative educational opportunities mirror those the Court took into consideration in Zelman. See 536 U.S. at 655, 122 S.Ct. 2460 (“Cleveland schoolchildren enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school.”).18
This is no Hobson’s choice. Far from “coercing” parents into sending their children to religious schools, Arizona provides a wide variety of secular alternatives. “Any objective observer familiar with the full history and context of [Section 1089] would reasonably view it as one aspect of a broader undertaking....” Id. at 655, 122 S.Ct. 2460. By shutting its eyes to the host of options available to Arizona parents, the panel’s opinion directly conflicts with Zelman.19
*667B
As demonstrated by the foregoing arguments, the Arizona program provides parents with “true private choice.” That established, the panel’s discussion of taxpayer choice becomes surplusage. Indeed, is its curious focus on “taxpayer choice” an apt analogy at all? I suggest that Winn’s reliance on Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982), is utterly mistaken.
The thrust of the panel’s reasoning is that taxpayer choice is not a valid substitute for the parental choice allegedly at the core of Zelman. I am not certain, however, that parental choice was as central to the reasoning of Zelman as the panel would have it. While that opinion does repeatedly refer to aid “recipients,” see Winn, 562 F.3d at 1018 (listing citations), at other times, it refers only to private, nongovernmental choice, see, e.g., Zelman, 536 U.S. at 649, 122 S.Ct. 2460 (describing programs where “government aid reaches religious schools only as a result of the genuine and independent choices of private individuals”); id. at 655, 122 S.Ct. 2460 (stating that “no reasonable observer” would find government endorsement where “state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals”). Significantly, Zelman seems most concerned about preventing the state from reaching out to “grant special favors that might lead to a religious establishment.” Id. at 652-53, 122 S.Ct. 2460 (internal quotation marks and citation omitted). So long as “favors” are doled out independent of state action, the Establishment Clause — which again, prohibits the “govemment itself’’ from endorsing religion— is not offended.
I further submit that under the endorsement test, any level of attenuation between government action and aid to religion necessarily reduces the likelihood that a “reasonable observer” will find impermissible government approbation. There can be no doubt that taxpayer choice contributes to that attenuation. Thus, the panel’s analysis of whether the choice Section 1089 provides to taxpayers ensures that “ ‘the circuit between government and religion was broken’ ” is beside the point. Winn, 562 F.3d at 1021 (quoting Zelman, 536 U.S. at 652, 122 S.Ct. 2460). The self-evident fact is that by “delegating” the choice to taxpayers, the government already broke the circuit.
Nonetheless, the panel contends a reasonable observer would consider two factors when deciding whether a program of individual choice violates the Establishment Clause: the “role the person making the choice occupies in the structure of the program,” id. at 1020, and “whether the choice delegated ... has the effect of promoting, or hindering, the program’s secular purpose,” id. at 1021. Regarding the former, the panel determined there was “no ‘effective means of guaranteeing’ ” that taxpayers would exercise their choice “ ‘exclusively for secular, neutral, and nonideological purposes.’” Id. at 1020 (quoting Larkin, 459 U.S. at 125, 103 S.Ct. 505). Parents, on the other hand, have “incentives to apply the program’s aid based on their children’s educational interests instead of on sectarian considerations.” Id. at 1021. As for the latter, the panel concluded that taxpayers thwarted the secular purpose of the statute insofar as their *668contributions narrowed the range of available educational alternatives. Id. at 1022.
One could see how a reasonable observer in Larkin could perceive government endorsement of religion from the “role the [entity] making the choice” played in the scheme. Maybe I am stating the obvious, but a large part of that perception might rest on the fact that in Larkin, the state delegated legislative authority — the ability to veto liquor licenses' — to churches. See 459 U.S. at 125, 103 S.Ct. 505. I say again: churches. Under such circumstances it is completely unsurprising that a reasonable observer would conclude that this “joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some.” Id. at 125-26, 103 S.Ct. 505. To what pervasively sectarian organization has Arizona “delegated” the choice at issue in this case? The Arizona taxpayer.20 When perceived endorsement of religion is at issue, state cooperation with churches is a far cry from state cooperation with taxpayers.21
Moreover, I disagree with the panel’s conclusion that parents are somehow less motivated to promote religious objectives than taxpayers generally. As anyone who has grown up in a religious household will tell you, schooling decisions are as frequently made on the basis of religious considerations as they are on purely secular academic grounds. At the very least, sectarian considerations factor into the equation of what is in the child’s best interests educationally. Thus, whether it resides with the taxpayer or the parent, once the choice is made available, the state has no “effective means of guaranteeing” that it will be exercised “exclusively for secular, neutral, and nonideological purposes.” Id. at 125, 103 S.Ct. 505 (internal quotation marks and citation omitted). By contrast with engaging in pseudo-psychological inquires into motivation, under Zelman, we need only satisfy ourselves that the choice, whatever it is, is made by a private actor, not by the government.
With respect to taxpayers’ ability to “thwart” the secular purpose of the statute, as discussed above, actors in any program of true private choice will have this ability. See supra pp. 663-65. In Zelman, for example, the purpose of providing a broad range of educational opportunities was “thwarted” by the decisions of neighboring public-school administrators to decline program vouchers. See supra pp. 664-65. The goal could be similarly “thwarted” if secular private school administrators decided to pull out of the program. See supra pp. 664-65. An inherent reality of true private choice programs cannot condemn Section 1089.
Ultimately, the panel appears to argue that Arizona’s scheme is flawed because it essentially delegates to a private entity something the state could not constitutionally achieve by the exercise of its own powers; here, the promotion of religious education. See Winn, 562 F.3d at 1020; see also id. at 1021 (citing Norwood v. *669Harrison, 413 U.S. 455, 465, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973)). That may well be true, but as the panel’s own citation indicates, for that to be the case, the state must somehow “induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Norwood, 413 U.S. at 465, 93 S.Ct. 2804 (emphases added). At the risk of beating a dead horse, I repeat that the state here has done nothing to cajole parents, STOs, or taxpayers into supporting religious education. The state has simply said, if you donate to the STO of your choice, you get a tax credit. Such action in no way induces, encourages, or promotes private parties to aid religion.22
IV
The panel also holds that plaintiffs have alleged facts suggesting Section 1089 was not “enacted for ... [a] valid secular purpose.” Winn, 562 F.3d at 1011 (internal quotation marks and citation omitted). The panel reaches this conclusion despite conceding that the statute is facially neutral with respect to religion. See id. at 1011-12. Nothing in the legislative history suggests that the driving force behind the bill was anything other than the desire to provide “equal access to a wide range of schooling options for students of every income level.” Id.; see also Mueller, 463 U.S. at 395, 103 S.Ct. 3062 (“A state’s decision to defray the cost of educational expenses incurred by parents — regardless of the type of schools their children attend — evidences a purpose that is both secular and understandable.”). Nonetheless, the panel maintains that plaintiffs could prove, based on how Section 1089 operates in practice, that this “secular and valid” purpose is a sham. Winn, 562 F.3d at 1011-12.
From its citation to McCreary County v. ACLU, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005), the panel seems to argue that the very enactment of Section 1089 “bespoke” a religious purpose. Winn, 562 F.3d at 1012. But how can this be so? McCreary does say that government action can be so “patently religious” that its nonsecular nature is evident. 545 U.S. at 862, 125 S.Ct. 2722. The examples provided, however, are situations where the state mandated Bible study, the teaching of creationism, and prayer in schools. Id. at 862-63. Setting up a tax credit program to provide scholarships to children generally is hardly of the same ilk.
To the extent the panel claims that the manner in which Section 1089 has been implemented reveals the stated secular purpose to be a sham, their arguments are similarly unpersuasive. First, the Supreme Court has recognized that a “legislature’s stated reasons will generally get deference,” deference only abandoned in “those unusual cases where the claim was an apparent sham.” Id. at 864-65, 125 S.Ct. 2722. Nothing in the plaintiffs allegations suggest this is one of those “unusual cases,” and as setting up a tax credit program is not a “patently religious” act, there is nothing “apparent” about any purported sham. Second, the implementation inquiry centers on actions taken by the government. See id. at 862, 125 S.Ct. 2722 (stating that the inquiry turns on the “traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act”) (internal quotation marks and cita*670tions omitted); id. at 870-74, 125 S.Ct. 2722 (questioning the government’s newly proffered purposes after it altered a Ten Commandments display in an attempt to mitigate previously stated sectarian purposes). Here, the alleged impropriety arises from taxpayer, not government action. Third, the panel’s holding turns on plaintiffs allegation that “in practice STOs are permitted to restrict the use of their scholarships to use at certain religious schools.” Winn, 562 F.3d at 1012. But that result is apparent from the statute itself, which is satisfied so long as STOs provide scholarships to two or more schools, see supra note 5, a fact plaintiffs themselves recognize in them complaint. That an STO may independently decide to limit its scholarships does not make a religious purpose “apparent.”23
Ultimately, the crux of the panel’s purpose holding turns on matters previously discussed under the effects prong: a nonsecular purpose could be inferred from the fact that, at a given moment, the bulk of scholarship money is available only for use at religious schools. But as detailed above, money flows to religious institutions entirely at the whim of nongovernmental actors: taxpayers or STOs. The legislature could hardly have had the “purpose” of endorsing religion when it set up a plan that, for all it knew, could have resulted in absolutely no funding for religious entities. See supra pp. 661-62. This moving target is irrelevant to the Establishment Clause inquiry. See supra pp. 663-65.
V
The layer upon layer of private choice built into this program ensures that “the circuit between government and religion [is] broken.” Zelman, 536 U.S. at 652, 122 S.Ct. 2460. Try as it may, the panel cannot complete such circuit. Ultimately, nothing in the panel opinion grapples with the fact that Arizona does nothing to encourage, to promote, or otherwise to incentivize private actors to direct aid to religious schools. Nothing explains how “the government itself has advanced religion through its own activities and influence.” Amos, 483 U.S. at 337, 107 S.Ct. 2862. Nothing points to any “evidence that the State deliberately skewed incentives toward religious schools.” Zelman, 536 U.S. at 650, 122 S.Ct. 2460 (emphasis added). Nothing shows how Section 1089 enables Arizona to “grant special favors that might lead to a religious establishment.” Id. at 652-53, 122 S.Ct. 2460 (internal quotation marks and citation omitted).
But the three-judge panel can hardly be faulted for these omissions: it cannot manufacture what does not exist.24 What does exist is a tax credit system that relies entirely on private choice. Individuals choose to create an STO. STOs choose to limit their funds to certain schools. Taxpayers choose to donate. Parents choose to apply for scholarships. In truth, everyone in Arizona has a choice — everyone ex*671cept the government. No reasonable observer would think this lengthy chain of choice suggests the government has endorsed religion.
Because the three-judge panel’s decision strays from established Supreme Court precedent, and because it jeopardizes the educational opportunities of thousands of children who enjoy the benefits of Section 1089 and related programs across the nation, I must respectfully dissent from our court’s regrettable failure to rehear this case en banc.
. See Fla. Stat. § 220.187; Ga.Code Ann. § 48-7-29.16; Ind.Code § 6-3.1-30.5; Iowa Code § 422.11S; 24 Pa. Stat. Ann. 20-2005-B; R.I. Gen. Laws § 44-62-2; A.B. 279, 2009-10 Leg., Reg. Sess., § 1 (Ca.2009); S.B. 342, 61st Leg., Reg. Sess., § l(3)(b)-(c) (Mont. 2009); S.B. 289, 75th Leg., Reg. Sess., § 6(1) (Nev.2009); H.B. 2754, 75th Leg., Reg. Sess. (Or.2009).
. Such programs have operated without incident, perhaps because no one has thought to challenge them post -Zelman. Cf., e.g., Bush v. Holmes, 919 So.2d 392, 399 (Fla.2006) (explaining that plaintiffs voluntarily dismissed a challenge to a Florida school choice program after Zelman).
. The distinction the panel tries to draw between a tax credit and a deduction, see 562 F.3d at 1014-15, can have no constitutional significance. Both result in a reduction of the money paid by the taxpayer to the government, with the amount of the reduction going to the designated STO. The only practical difference is that with a deduction the taxpayer must make a co-payment of his own, whereas with a credit there is no copayment. Of course, this favors richer taxpayers over poorer ones, as the former are more able to afford a personal contribution. Moreover, in a progressive tax system, deductions most favor the taxpayers with the greatest income. Not only does the value of the deduction increase with the taxpayer's marginal rate, but so does the amount of government revenue that is diverted at the taxpayer’s behest. It is difficult to see why such a regressive regime (deductions) is constitutionally superi- or to the egalitarian tax credit. Cf. Lochner v. New York, 198 U.S. 45, 75, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, L, dissenting) (The Constitution "does not enact Mr. Herbert Spencer's social statics.”).
. Schools that "discriminate on the basis of race, color, handicap, familial status or national origin” are ineligible. Id. § 43-1089(G)(2).
. Like virtually every other tax credit system, see supra note 1, the Arizona statute requires STOs to provide scholarships "without limiting availability to only students of one school.” Ariz.Rev.Stat. Ann. § 43-1089(G)(3). And again, like most other schemes, see supra note 1, the statute says STOs should allow children "to attend any qualified school of their parents' choice.” Id. While hardly the model of clarity, this language has been interpreted to mean STOs satisfy the statute by providing scholarships to at least two schools.
. Twenty-five of the fifty-five existing STOs limit scholarship awards to religious schools.
. Make no mistake about the procedural posture of this decision. True, the case will be remanded to the district court. But the panel holds that, "if plaintiffs’ allegations are accepted as true, Section 1089 violates the Establishment Clause.” Winn, 562 F.3d at 1013. So far as I can tell, no one disputes plaintiffs’ factual allegations about how the program operates in practice. Thus, the panel leaves the district court with no choice but to declare the program unconstitutional as applied, rendering the remand little more than an empty formality.
. As the panel focused primarily on "effects,” rather than "purpose,” I address these two Lemon prongs out of order.
. For example, the panel asserts that Arizona parents are presented with a choice that "deliberately skew[s] incentives toward religious schools.” See Winn, 562 F.3d at 1013 (quoting Zelman, 536 U.S. at 650, 122 S.Ct. 2460). The actual quotation from Zelman, however, includes a key qualifier: it condemns only programs where “the State deliberately skewed incentives toward religious schools.” 536 U.S. at 650, 122 S.Ct. 2460 (emphasis added). Since only state action can violate the Establishment Clause, the panel’s omission is telling.
. The panel makes much of the fact that Zelman discussed aid flowing "directly” to parents. I submit that the Supreme Court used such terminology for two reasons. First, that was the case before the Court: it had no reason to pontificate on systems involving additional levels of private choice. Second, the language emphasized that the voucher program did not involve constitutionally problematic "direct” aid to religious institutions. The panel turns this language into a rallying cry to suggest that by filtering aid through multiple levels of private choice — rather than a single level — the state endorses religion. But that makes no sense. How can increasing the separation between state and religion result in heightened government endorsement?
. Earlier, I listed several state programs jeopardized by the panel's holding. See supra note 1. Under the panel’s reasoning, those schemes could be constitutional if taxpayers decided to provide more funds to secular, rather than religious STOs. An identical pro*664gram might then be constitutional in one state and unconstitutional in another.
. The "at a particular time” reference is especially significant. As discussed above, nothing in Section 1089 precludes any Arizona taxpayer, tomorrow, from suddenly deciding to fund exclusively secular STOs. See supra pp. 652-53. The Supreme Court has twice declined to strike down laws on the basis of such moving targets. See Zelman, 536 U.S. at 657-58, 122 S.Ct. 2460; Mueller v. Allen, 463 U.S. 388, 401, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983).
. The Court went on to explain that it is "irrelevant ... to the constitutionality” of a government aid program that "a vast majority of program benefits went to religious schools.” Zelman, 536 U.S. at 658, 122 S.Ct. 2460. The panel distinguishes this point, claiming that the Zelman did not involve a situation where parental choice was "constrained.” Winn, 562 F.3d at 1017 n. 14. As demonstrated below, that is simply not the case. See infra pp. 663-65.
. The Zelman Court's comment that the "preponderance of religiously affiliated private schools certainly did not arise as a result of the [voucher] program" is also instructive. 536 U.S. at 656-57, 122 S.Ct. 2460. The Court stated that the imbalance was "a phenomenon common to many American cities.” Id. at 657, 122 S.Ct. 2460. In other words, the disparity was caused not by government action, but rather by private predilections. The same can be said about the existence of religiously affiliated STOs and the disproportionate share of taxpayer contributions they receive. The concentration of funds in religious entities — and the resulting "constraint” on parental choice — "certainly did not arise as a result of” any state action, but rather as a consequence of private decisions. See supra pp. 661-62.
. For this reason, the Winn panel's reliance on Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2993, 37 L.Ed.2d 948 (1973), is misplaced. See Zelman, 536 U.S. at 661-62, 122 S.Ct. 2460.
. Interestingly, the Supreme Court decided to italicize “all options” in Zelman, and “government itself” in Amos. Maybe the justices thought these requirements were important. Zelman, 536 U.S. at 655-56, 122 S.Ct. 2460; Amos, 483 U.S. at 337, 107 S.Ct. 2862.
. Out of the 4,000 plus charters schools across the country, 478 are in Arizona. See Arizona Charter Schools Association, http:// www.azcharters.org/pages/schools-basicstatistics (last visited July 25, 2009).
. As the district court observed, parents are actually discouraged from sending their children to private religious schools. “An Arizona student may attend any public school without cost.... In contrast, the average scholarship paid by STOs in 2003 was $1,222, a sum unlikely to cover all of the costs of private school attendance.” Winn, 361 F.Supp.2d at 1121 (citations and footnote omitted); see also Zelman, 536 U.S. at 654, 122 S.Ct. 2460 (“Families ... have a financial disincentive to choose a private religious school over other schools. Parents that choose to ... enroll their children in a private school ... must copay a portion of the school's tuition. Families that choose a community school, magnet school, or traditional public school pay nothing. [This] clearly dispells] the claim that the program creates financial incentives for parents to choose a sectarian school.” (internal quotation marks, alterations, and citation omitted)).
. The concurrence argues that this reading of Zelman is inconsistent with Nyquist. Concurrence at 654-55. The Court invalidated the New York tax program at issue in Nyquist because its tuition reimbursements were designed " 'explicitly to offer ... an incentive to parents to send their children to sectarian schools.’ ” Zelman, 536 U.S. at 662, 122 S.Ct. 2460 (quoting Nyquist, 413 U.S. at 782-83, 93 S.Ct. 2955). As I have explained above, the plethora of choices available to *667Arizona parents demonstrates that Section 1089 has no effect of incentivizing religious schools over sectarian schools.
. Additionally, the authority delegated in Larkin was absolute veto power in an area of traditional government functioning. 459 U.S. at 125, 103 S.Ct. 505. Here, each individual taxpayer exercises only a modicum of control over the allocation of scholarship funds.
. Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994), does not support the panel’s analysis. In Larkin, legislative authority was delegated to churches. In Kiryas Joel, the state created a school district such that a particular religious group would have "exclusive control of the political subdivision.” 512 U.S. at 698-99, 114 S.Ct. 2481. Both actions displayed overt religious bias. "Delegation” to the Arizona taxpayer does not.
. The concurrence asserts that "[t]he effect of these taxpayer choices ... may be to harm the ability of aspiring scholarship recipients to obtain a scholarship available for use at a secular school." Concurrence at 656. I fail to see how Section 1089- — -which permits tax deductions for gifts to both religious and secular scholarship funds — harms a student's ability to obtain a scholarship to a secular school.
. Additionally, any inquiry into purpose must look at context. See McCreary, 545 U.S. at 862, 864, 866, 125 S.Ct. 2722. As discussed above, Section 1089 was enacted amidst a broader effort to increase alternative educational opportunities. See supra pp. 664-66; see also Kotterman, 972 P.2d at 611.
. Cf. Compassion in Dying v. Washington, 85 F.3d 1440, 1446-47 (9th Cir.1996) (Trott, J., dissenting from denial of rehearing en banc) (“No magician — not David Copperfield, not even Harry Houdini — can produce a rabbit from a hat unless the rabbit is in the hat to begin with. Moreover, if a hat does not contain such an animal, a magician cannot claim that anything he is able to produce from it is in fact a rabbit, no matter how sincere he may be or how great his forensic skills. All of this has something to do with basic physics.”).