OCTOBER TERM, 1994
Syllabus
CAPITOL SQUARE REVIEW AND ADVISORY BOARD ET AL.
v.
PINETTE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 94-780. Argued April 26, 1995-Decided June 29, 1995
Ohio law makes Capitol Square, the statehouse plaza in Columbus,
a forum for discussion of public questions and for public
activities, and gives petitioner Capitol Square Review and Advisory
Board (Board) responsibility for regulating access to the square.
To use the square, a group must simply fill out an official
application form and meet several speechneutral criteria. After the
Board denied, on Establishment Clause grounds, the application of
respondent Ku Klux Klan to place an unattended cross on the square
during the 1993 Christmas season, the Klan filed this suit. The
District Court entered an injunction requiring issuance of the
requested permit, and the Board permitted the Klan to erect its
cross. The Sixth Circuit affirmed the judgment, adding to a
conflict among the Courts of Appeals as to whether a private,
unattended display of a religious symbol in a public forum violates
the Establishment Clause.
Held: The judgment is affirmed.
30
F.3d 675, affirmed.
JUSTICE SCALIA delivered the opinion of the Court with respect
to Parts I, II, and III, concluding that:
1. Because the courts below addressed only the Establishment
Clause issue and that is the sole question upon which certiorari
was granted, this Court will not consider respondents' contention
that the State's disapproval of the Klan's political views, rather
than its desire to distance itself from sectarian religion, was the
genuine reason for disallowing the cross display. Pp. 759-760.
2. The display was private religious speech that is as fully
protected under the Free Speech Clause as secular private
expression. See,
e. g.,
Lamb's Chapel v.
Center
Moriches Union Free School Dist., 508 U. S. 384. Because
Capitol Square is a traditional public forum, the Board may
regulate the content of the Klan's expression there only if such a
restriction is necessary, and narrowly drawn, to serve a compelling
state interest.
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S.
37,45. pp. 760-761.
3. Compliance with the Establishment Clause may be a state
interest sufficiently compelling to justify content-based
restrictions on speech,
754
Syllabus
see,
e. g., Lamb's Chapel, 508 U. S., at 394-395, but the
conclusion that that interest is not implicated in this case is
strongly suggested by the presence here of the factors the Court
considered determinative in striking down state restrictions on
religious content in
Lamb's Chapel, id., at 395, and
Widmar v.
Vincent, 454 U. S. 263, 274. As in
those cases, the State did not sponsor respondents' expression, the
expression was made on government property that had been opened to
the public for speech, and permission was requested through the
same application process and on the same terms required of other
private groups. pp.761-763.
JUSTICE SCALIA, joined by THE CHIEF JUSTICE, JUSTICE KENNEDY,
and JUSTICE THOMAS, concluded in Part IV that petitioners' attempt
to distinguish this case from
Lamb's Chapel and
Widmar is unavailing. Petitioners' argument that, because
the forum's proximity to the seat of government may cause the
misperception that the cross bears the State's approval, their
content-based restriction is constitutional under the so-called
"endorsement test" of,
e. g., County of Allegheny v.
American Civil Liberties Union, Greater Pittsburgh Chapter,
492 U. S. 573,
and
Lynch v.
Donnelly, 465 U. S. 668, is
rejected. Their version of the test, which would attribute private
religious expression to a neutrally behaving government, has no
antecedent in this Court's Establishment Clause jurisprudence,
which has consistently upheld neutral government policies that
happen to benefit religion. Where the Court has tested for
endorsement, the subject of the test was either expression
by the government itself, Lynch, supra, or else government
action alleged to
discriminate in favor of private religious
expression or activity, see,
e. g., Allegheny, supra. The
difference between forbidden
government speech endorsing
religion and protected
private speech that does so is what
distinguishes
Allegheny and
Lynch from
Widmar
and
Lamb's Chapel. The distinction does not disappear when
the private speech is conducted close to the symbols of government.
Given a traditional or designated public forum, publicly announced
and open to all on equal terms, as well as purely private
sponsorship of religious expression, erroneous conclusions of state
endorsement do not count. See
Lamb's Chapel, supra, at 395,
and
Widmar, supra, at 274. Nothing prevents Ohio from
requiring all private displays in the square to be identified as
such, but it may not, on the claim of misperception of official
endorsement, ban all private religious speech from the square, or
discriminate against it by requiring religious speech alone to
disclaim public sponsorship. Pp.763-769.
JUSTICE O'CONNOR, joined by JUSTICE SOUTER and JUSTICE BREYER,
concluded that the State has not presented a compelling
justification for denying respondents' permit. Pp. 772-783.
755
(a) The endorsement test supplies an appropriate standard for
determining whether governmental practices relating to speech on
religious topics violate the Establishment Clause, even where a
neutral state policy toward private religious speech in a public
forum is at issue. Cf.,
e. g., Lamb's Chapel v.
Center
Moriches Union Free School Dist., 508 U. S. 384, 395. There
is no necessity to carve out, as does the plurality opinion, an
exception to the test for the public forum context. Pp.
773-778.
(b) On the facts of this case, the reasonable observer would not
fairly interpret the State's tolerance of the Klan's religious
display as an endorsement of religion. See,
e. g., Lamb's
Chapel, supra, at 395. In this context, the "reasonable
observer" is the personification of a community ideal of reasonable
behavior, determined by the collective social judgment, whose
knowledge is not limited to information gleaned from viewing the
challenged display, but extends to the general history of the place
in which the display appears. In this case, therefore, such an
observer may properly be held, not simply to knowledge that the
cross is purely a religious symbol, that Capitol Square is owned by
the State, and that the seat of state government is nearby, but
also to an awareness that the square is a public space in which a
multiplicity of secular and religious groups engage in expressive
conduct, as well as to an ability to read and understand the
disclaimer that the Klan offered to include in its display. Pp.
778-782.
JUSTICE SOUTER, joined by JUSTICE O'CONNOR and JUSTICE BREYER,
concluded that, given the available alternatives, the Board cannot
claim that its denial of the Klan's application was a narrowly
tailored response necessary to ensure that the State did not appear
to take a position on questions of religious belief. Pp.
783-794.
(a) The plurality's
per se rule would be an exception to
the endorsement test, not previously recognized and out of square
with this Court's precedents. As the plurality admits, there are
some circumstances in which an intelligent observer would
reasonably perceive private religious expression in a public forum
to imply the government's endorsement of religion. Such perceptions
should be attributed to the reasonable observer of Establishment
Clause analysis under the Court's decisions, see,
e. g., County
of Allegheny v.
American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 630,
635-636 (O'CONNOR, J., concurring in part and concurring in
judgment), which have looked to the specific circumstances of the
private religious speech and the public forum to determine whether
there is any realistic danger that such an observer would think
that the government was endorsing religion, see,
e. g.,
Lynch v.
Donnelly, 465 U. S. 668, 692, 694
(O'CONNOR,
756
Syllabus
J., concurring). The plurality's
per se rule would, in
all but a handful of cases, make the endorsement test meaningless.
Pp. 785-792.
(b) Notwithstanding that there was nothing else on the
statehouse lawn suggesting a forum open to any and all private,
unattended religious displays, a flat denial of the Klan's
application was not the Board's only option to protect against an
appearance of endorsement. Either of two possibilities would have
been better suited to the requirement that the Board find its most
"narrowly drawn" alternative.
Perry Ed. Assn. v.
Perry
Local Educators' Assn., 460 U. S. 37, 45. First,
the Board could have required a disclaimer sufficiently large and
clear to preclude any reasonable inference that the cross
demonstrated governmental endorsement. In the alternative, the
Board could have instituted a policy of restricting all private,
unattended displays to one area of the square, with a permanent
sign marking the area as a forum for private speech carrying no
state endorsement. pp. 792-794.
SCALIA, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, and III, in
which REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, and
BREYER, JJ., joined, and an opinion with respect to Part IV, in
which REHNQUIST, C. J., and KENNEDY and THOMAS, JJ., joined.
THOMAS, J., filed a concurring opinion,
post, p. 770.
O'CONNOR, J., filed an opinion concurring in part and concurring in
the judgment, in which SOUTER and BREYER, JJ., joined,
post,
p. 772. SOUTER, J., filed an opinion concurring in part and
concurring in the judgment, in which O'CONNOR and BREYER, JJ.,
joined,
post, p. 783. STEVENS, J.,
post, p. 797, and
GINSBURG, J.,
post, p. 817, filed dissenting opinions.
Michael J.
Renner argued the cause for
petitioners. With him on the briefs were
Betty D.
Montgomery, Attorney General of Ohio, and
Christopher S.
Cook, Andrew S.
Bergman, Simon B. Karas, and
Andrew 1.
Sutter, Assistant Attorneys General.
Benson A. Wolman argued the cause for respondents.
With him on the brief were David Goldberger, Barbara P. O'Toole,
Steven R. Shapiro, and Peter Joy. *
*Briefs of amici curiae urging reversal were filed for the Town
of Trumbell, Connecticut, et al. by Arthur A. Hiller, Martin B.
Margulies, and Emanuel Margolis; for Americans United for
Separation of Church and State et al. by Steven K. Green, Julie A.
Segal, Norman Dorsen, Samuel Rabinove, Elliot M. Mincberg, David
Saperstein, and Richard T. Cassidy; for the Council on Religious
Freedom et al. by Lee Boothby, Wal-
757
JUSTICE SCALIA announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, and III, and
an opinion with respect to Part IV; in which THE CHIEF JUSTICE,
JUSTICE KENNEDY, and JUSTICE THOMAS join.
The Establishment Clause of the First Amendment, made binding
upon the States through the Fourteenth Amendment, provides that
government "shall make no law respecting an establishment of
religion." The question in this case is whether a State violates
the Establishment Clause when, pursuant to a religiously neutral
state policy, it permits a private party to display an unattended
religious symbol in a traditional public forum located next to its
seat of government.
I
Capitol Square is a 10-acre, state-owned plaza surrounding the
statehouse in Columbus, Ohio. For over a century the square has
been used for public speeches, gatherings, and festivals advocating
and celebrating a variety of causes, both secular and religious.
Ohio Admin. Code Ann. § 128-402(A) (1994) makes the square
available "for use by the public ... for free discussion of public
questions, or for activities of a broad public purpose," and Ohio
Rev. Code Ann. § 105.41 (1994), gives the Capitol Square Review and
Advisory Board (Board) responsibility for regulating public access.
To use the square, a group must simply fill out an official
application
ter E. Carson, Robert W Nixon, and Rolland Truman; for the
Freedom From Religion Foundation, Inc., by Robert R. Tiernan; and
for the American Jewish Congress et al. by Marvin E. Frankel, Alan
R. Friedman, Richard K. Milin, Marc D. Stern, Lois C. Waldman, and
Steve Freeman.
Briefs of
amici curiae urging affirmance were filed for
the American Center for Law & Justice by
Jay Alan Sekulow,
James M. Henderson, Sr., and
Keith A. Fournier; for the
Chabad House of Western Michigan, Inc., et al. by
Nathan
Lewin; for the Christian Legal Society by
Thomas C.
Berg, Steven T. McFarland, Samuel B. Casey, Gregory S.
Baylor, and
Kimberlee Wood Colby; for the Knights of
Columbus Council 2961 et al. by
Kevin J.
Hasson; and
for Liberty Counsel by
Mathew D. Staver.
758
form and meet several criteria, which concern primarily safety,
sanitation, and noninterference with other uses of the square, and
which are neutral as to the speech content of the proposed event.
App. 107-110; Ohio Admin. Code Ann. § 128-4-02 (1994).
It has been the Board's policy "to allow a broad range of
speakers and other gatherings of people to conduct events on the
Capitol Square." Brief for Petitioners 3-4. Such diverse groups as
homosexual rights organizations, the Ku Klux Klan, and the United
Way have held rallies. The Board has also permitted a variety of
unattended displays on Capitol Square: a state-sponsored lighted
tree during the Christmas season, a privately sponsored menorah
during Chanukah, a display showing the progress of a United Way
fundraising campaign, and booths and exhibits during an arts
festival. Although there was some dispute in this litigation
regarding the frequency of unattended displays, the District Court
found, with ample justification, that there was no policy against
them. 844 F. Supp. 1182, 1184 (SD Ohio 1993).
In November 1993, after reversing an initial decision to ban
unattended holiday displays from the square during December 1993,
the Board authorized the State to put up its annual Christmas tree.
On November 29, 1993, the Board granted a rabbi's application to
erect a menorah. That same day, the Board received an application
from respondent Donnie Carr, an officer of the Ohio Ku Klux Klan,
to place a cross on the square from December 8, 1993, to December
24, 1993. The Board denied that application on December 3,
informing the Klan by letter that the decision to deny "was made
upon the advice of counsel, in a good faith attempt to comply with
the Ohio and United States Constitutions, as they have been
interpreted in relevant decisions by the Federal and State Courts."
App.47.
Two weeks later, having been unsuccessful in its effort to
obtain administrative relief from the Board's decision, the Ohio
Klan, through its leader Vincent Pinette, filed the pres-
759
ent suit in the United States District Court for the Southern
District of Ohio, seeking an injunction requiring the Board to
issue the requested permit. The Board defended on the ground that
the permit would violate the Establishment Clause. The District
Court determined that Capitol Square was a traditional public forum
open to all without any policy against freestanding displays; that
the Klan's cross was entirely private expression entitled to full
First Amendment protection; and that the Board had failed to show
that the display of the cross could reasonably be construed as
endorsement of Christianity by the State. The District Court issued
the injunction and, after the Board's application for an emergency
stay was denied,
510
U. S. 1307 (1993) (STEVENS, J., in chambers), the Board
permitted the Klan to erect its cross. The Board then received, and
granted, several additional applications to erect crosses on
Capitol Square during December 1993 and January 1994.
On appeal by the Board, the United States Court of Appeals for
the Sixth Circuit affirmed the District Court's judgment.
30 F.3d
675 (1994). That decision agrees with a ruling by the Eleventh
Circuit,
Chabad-Lubavitch v.
Miller, 5 F.3d
1383 (1993), but disagrees with decisions of the Second and
Fourth Circuits,
Chabad-Lubavitch v.
Burlington, 936
F. 2d 109 (CA2 1991), cert. denied, 505 U. S. 1218 (1992),
Kaplan v.
Burlington, 891 F.2d
1024 (CA2 1989), cert. denied, 496 U. S. 926 (1990),
Smith v.
County of Albemarle, 895 F. 2d 953 (CA4),
cert. denied, 498 U. S. 823 (1990). We granted certiorari. 513 U.
S. 1106 (1995).
II
First, a preliminary matter: Respondents contend that we should
treat this as a case in which freedom of speech (the Klan's right
to present the message of the cross display) was denied because of
the State's disagreement with that message's political content,
rather than because of the State's desire to distance itself from
sectarian religion. They sug-
760
gest in their merits brief and in their oral argument that
Ohio's genuine reason for disallowing the display was disapproval
of the political views of the Ku Klux Klan. Whatever the fact may
be, the case was not presented and decided that way. The record
facts before us and the opinions below address only the
Establishment Clause issue; 1 that is the question upon which we
granted certiorari; and that is the sole question before us to
decide.
Respondents' religious display in Capitol Square was private
expression. Our precedent establishes that private religious
speech, far from being a First Amendment orphan, is as fully
protected under the Free Speech Clause as secular private
expression.
Lamb's Chapel v.
Center Moriches Union Free
School Dist., 508
U. S. 384 (1993);
Board of Ed. of Westside Community Schools
(Dist. 66) v.
Mergens, 496 U. S. 226 (1990);
Widmar v.
Vincent, 454 U. S. 263 (1981);
Heffron v.
International Soc. for Krishna Consciousness,
Inc., 452 U. S.
640 (1981). Indeed, in Anglo-American history, at least,
government suppression of speech has so commonly been directed
precisely at religious speech that a free-speech clause
without religion would be Hamlet without the prince. Accordingly,
we have not excluded from freespeech protections religious
proselytizing,
Heffron, supra, at 647, or even acts of
worship,
Widmar, supra, at 269, n. 6. Petitioners do not
dispute that respondents, in displaying their cross, were engaging
in constitutionally protected expression. They do contend that the
constitutional pro-
1 Respondents claim that the Sixth Circuit's statement that
"[z]ealots have First Amendment rights too," even if their views
are unpopular, shows that the case is actually about discrimination
against political speech. That conclusion is possible only if the
statement is ripped from its context, which was this: "The potency
of religious speech is not a constitutional infirmity; the most
fervently devotional and blatantly sectarian speech is protected
when it is private speech in a public forum. Zealots have First
Amendment rights too."
30 F.3d
675, 680 (1994). The court was obviously addressing zealous
(and unpopular)
religious speech.
761
tection does not extend to the length of permitting that
expression to be made on Capitol Square.
It is undeniable, of course, that speech which is
constitutionally protected against state suppression is not thereby
accorded a guaranteed forum on all property owned by the State.
Postal Service v.
Council of Greenburgh Civic Assns.,
453 U. S. 114,
129 (1981);
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S.
37, 44 (1983). The right to use government property for one's
private expression depends upon whether the property has by law or
tradition been given the status of a public forum, or rather has
been reserved for specific official uses.
Cornelius v.
NAACP Legal Defense &
Ed. Fund, Inc., 473 U. S. 788, 802-803
(1985). If the former, a State's right to limit protected
expressive activity is sharply circumscribed: It may impose
reasonable, content-neutral time, place, and manner restrictions (a
ban on all unattended displays, which did not exist here, might be
one such), but it may regulate expressive
content only if
such a restriction is necessary, and narrowly drawn, to serve a
compelling state interest.
Perry Ed. Assn., supra, at 45.
These strict standards apply here, since the District Court and the
Court of Appeals found that Capitol Square was a traditional public
forum. 844 F. Supp., at 1184; 30 F. 3d, at 678.
Petitioners do not claim that their denial of respondents'
application was based upon a content-neutral time, place, or manner
restriction. To the contrary, they concede-indeed it is the essence
of their case-that the Board rejected the display precisely because
its content was religious. Petitioners advance a single
justification for closing Capitol Square to respondents' cross: the
State's interest in avoiding official endorsement of Christianity,
as required by the Establishment Clause.
III
There is no doubt that compliance with the Establishment Clause
is a state interest sufficiently compelling to justify
762
content-based restrictions on speech. See
Lamb's Chapel,
supra, at 394-395;
Widmar, supra, at 271. Whether that
interest is implicated here, however, is a different question. And
we do not write on a blank slate in answering it. We have twice
previously addressed the combination of private religious
expression, a forum available for public use, content-based
regulation, and a State's interest in complying with the
Establishment Clause. Both times, we have struck down the
restriction on religious content.
Lamb's Chapel, supra; Widmar,
supra.
In
Lamb's Chapel, a school district allowed private
groups to use school facilities during off-hours for a variety of
civic, social, and recreational purposes, excluding, however,
religious purposes. We held that even if school property during
off-hours was not a public forum, the school district violated an
applicant's free-speech rights by denying it use of the facilities
solely because of the religious viewpoint of the program it wished
to present. 508 U. S., at 390-395. We rejected the district's
compelling-state-interest Establishment Clause defense (the same
made here) because the school property was open to a wide variety
of uses, the district was not directly sponsoring the religious
group's activity, and "any benefit to religion or to the Church
would have been no more than incidental."
Id., at 395. The
Lamb's Chapel reasoning applies
a fortiori here,
where the property at issue is not a school but a full-fledged
public forum.
Lamb's Chapel followed naturally from our decision in
Widmar, in which we examined a public university's exclusion
of student religious groups from facilities available to other
student groups. There also we addressed official discrimination
against groups who wished to use a "generally open forum" for
religious speech. 454 U. S., at 269. And there also the State
claimed that its compelling interest in complying with the
Establishment Clause justified the content-based restriction. We
rejected the defense because
763
the forum created by the State was open to a broad spectrum of
groups and would provide only incidental benefit to religion.
Id., at 274. We stated categorically that "an open forum in
a public university does not confer any imprimatur of state
approval on religious sects or practices."
Ibid.
Quite obviously, the factors that we considered determinative in
Lamb's Chapel and
Widmar exist here as well. The
State did not sponsor respondents' expression, the expression was
made on government property that had been opened to the public for
speech, and permission was requested through the same application
process and on the same terms required of other private groups.
IV
Petitioners argue that one feature of the present case
distinguishes it from
Lamb's Chapel and
Widmar: the
forum's proximity to the seat of government, which, they contend,
may produce the perception that the cross bears the State's
approval. They urge us to apply the so-called "endorsement test,"
see,
e. g., County of Allegheny v.
American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 (1989);
Lynch v.
Donnelly, 465 U. S. 668 (1984), and
to find that, because an observer might mistake private expression
for officially endorsed religious expression, the State's
content-based restriction is constitutional.
We must note, to begin with, that it is not really an
"endorsement test" of any sort, much less the "endorsement test"
which appears in our more recent Establishment Clause
jurisprudence, that petitioners urge upon us. "Endorsement"
connotes an expression or demonstration of approval or support. The
New Shorter Oxford English Dictionary 818 (1993); Webster's New
Dictionary 845 (2d ed. 1950). Our cases have accordingly equated
"endorsement" with "promotion" or "favoritism."
Allegheny,
supra, at 593 (citing cases). We find it peculiar to say that
government
764
Opinion of SCALIA, J.
"promotes" or "favors" a religious display by giving it the same
access to a public forum that all other displays enjoy. And as a
matter of Establishment Clause jurisprudence, we have consistently
held that it is no violation for government to enact neutral
policies that happen to benefit religion. See,
e. g., Bowen
v.
Kendrick, 487 U. S. 589, 608
(1988);
Witters v.
Washington Dept. of Servs. for
Blind, 474 U. S.
481, 486-489 (1986);
Mueller v.
Allen, 463 U. S. 388 (1983);
McGowan v.
Maryland, 366 U. S. 420 (1961).
Where we have tested for endorsement of religion, the subject of
the test was either expression
by the government itself, Lynch,
supra, or else government action alleged to
discriminate in
favor of private religious expression or activity,
Board of
Ed. of Kiryas Joel Village School Dist. v.
Grumet,
512 U. S. 687,
708-710 (1994);
Allegheny, supra. The test petitioners
propose, which would attribute to a neutrally behaving government
private religious expression, has no antecedent in our
jurisprudence, and would better be called a "transferred
endorsement" test.
Petitioners rely heavily on
Allegheny and
Lynch,
but each is easily distinguished. In
Allegheny we held that
the display of a privately sponsored creche on the "Grand
Staircase" of the Allegheny County Courthouse violated the
Establishment Clause. That staircase was not, however, open to all
on an equal basis, so the county was
favoring sectarian
religious expression. 492 U. S., at 599-600, and n. 50 ("The Grand
Staircase does not appear to be the kind of location in which all
were free to place their displays"). We expressly distinguished
that site from the kind of public forum at issue here, and made
clear that if the staircase were available to all on the same
terms, "the presence of the creche in that location for over six
weeks would then
not serve to associate the government with
the creche."
Ibid. (emphasis added). In
Lynch we held
that a city's display of a creche did not violate the Establishment
Clause because, in context, the
765
display did not endorse religion. 465 U. S., at 685-687. The
opinion does assume, as petitioners contend, that the
government's use of religious symbols is unconstitutional if
it effectively endorses sectarian religious belief. But the case
neither holds nor even remotely assumes that the government's
neutral treatment of
private religious expression can be
unconstitutional.
Petitioners argue that absence of perceived endorsement was
material in
Lamb's Chapel and
Widmar. We did state in
Lamb's Chapel that there was "no realistic danger that the
community would think that the District was endorsing religion or
any particular creed," 508 U. S., at 395. But that conclusion was
not the result of empirical investigation; it followed directly, we
thought, from the fact that the forum was open and the religious
activity privately sponsored. See
ibid. It is significant
that we referred only to what would be thought by "the community"
-not by outsiders or individual members of the community uninformed
about the school's practice. Surely some of the latter, hearing of
religious ceremonies on school premises, and not knowing of the
premises' availability and use for all sorts of other private
activities,
might leap to the erroneous conclusion of state
endorsement. But, we in effect said, given an open forum and
private sponsorship, erroneous conclusions do not count. So also in
Widmar. Once we determined that the benefit to religious
groups from the public forum was incidental and shared by other
groups, we categorically rejected the State's Establishment Clause
defense. 454 U. S., at 274.
What distinguishes
Allegheny and the dictum in
Lynch from
Widmar and
Lamb's Chapel is the
difference between government speech and private speech. "[T]here
is a crucial difference between
government speech endorsing
religion, which the Establishment Clause forbids, and
private speech endorsing religion, which the Free Speech and
Free Exercise Clauses protect."
Mergens, 496 U. S., at 250
(opin-
766
Opinion of SCALIA, J.
ion of O'CONNOR, J.).2 Petitioners assert, in effect, that that
distinction disappears when the private speech is conducted too
close to the symbols of government. But that, of course, must be
merely a subpart of a more general principle: that the distinction
disappears whenever private speech can be mistaken for government
speech. That proposition cannot be accepted, at least where, as
here, the government has not fostered or encouraged the
mistake.
Of course, giving sectarian religious speech preferential access
to a forum close to the seat of government (or anywhere else for
that matter) would violate the Establishment Clause (as well as the
Free Speech Clause, since it would involve content discrimination).
And one can conceive of a case in which a governmental entity
manipulates its administration of a public forum close to the seat
of government (or within a government building) in such a manner
that only certain religious groups take advantage of it, creating
an impression of endorsement
that is in fact accurate. But
those situations, which involve governmental
favoritism, do
not exist here. Capitol Square is a genuinely public forum, is
known to be a public forum, and has been widely used as a public
forum for many, many years. Private religious speech cannot be
subject to veto by those who see favoritism where there is
none.
The contrary view, most strongly espoused by JUSTICE STEVENS,
post, at 806-807, but endorsed by JUSTICE SOUTER and JUSTICE
O'CONNOR as well, exiles private religious speech to a realm of
less-protected expression heretofore
2 This statement in JUSTICE O'CONNOR'S
Mergens opinion is
followed by the observation: "We think that secondary school
students are mature enough and are likely to understand that a
school does not endorse or support student speech that it merely
permits on a nondiscriminatory basis." 496 U. S., at 250. JUSTICE
O'CONNOR today says this observation means that, even when we
recognize private speech to be at issue, we must apply the
endorsement test.
Post, at 774-775. But that would cause the
second sentence to contradict the first, saying in effect that the
"difference between
government speech ... and
private
speech" is
not "crucial."
767
inhabited only by sexually explicit displays and commercial
speech.
Young v.
American Mini Theatres, Inc.,
427 U. S. 50, 61,
70-71 (1976);
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N.
Y., 447 U. S. 557 (1980). It
will be a sad day when this Court casts piety in with pornography,
and finds the First Amendment more hospitable to private
expletives, see
Cohen v.
California, 403 U. S. 15, 26 (1971),
than to private prayers. This would be merely bizarre were
religious speech simply
as protected by the Constitution as
other forms of private speech; but it is outright perverse when one
considers that private religious expression receives
preferential treatment under the Free Exercise Clause. It is
no answer to say that the Establishment Clause tempers religious
speech. By its terms that Clause applies only to the words and acts
of
government. It was never meant, and has never been read
by this Court, to serve as an impediment to purely
private
religious speech connected to the State only through its occurrence
in a public forum.
Since petitioners' "transferred endorsement" principle cannot
possibly be restricted to squares in front of state capitols, the
Establishment Clause regime that it would usher in is most
unappealing. To require (and permit) access by a religious group in
Lamb's Chapel, it was sufficient that the group's activity
was not in fact government sponsored, that the event was open to
the public, and that the benefit of the facilities was shared by
various organizations. Petitioners' rule would require school
districts adopting similar policies in the future to guess whether
some undetermined critical mass of the community might nonetheless
perceive the district to be advocating a religious viewpoint.
Similarly, state universities would be forced to reassess our
statement that "an open forum in a public university does not
confer any imprimatur of state approval on religious sects or
practices."
Widmar, 454 U. S., at 274. Whether it does would
henceforth depend upon immediate appearances. Policymakers
768
Opinion of SCALIA, J.
would find themselves in a vise between the Establishment Clause
on one side and the Free Speech and Free Exercise Clauses on the
other. Every proposed act of private, religious expression in a
public forum would force officials to weigh a host of
imponderables. How close to government is too close? What kind of
building, and in what context, symbolizes state authority? If the
State guessed wrong in one direction, it would be guilty of an
Establishment Clause violation; if in the other, it would be liable
for suppressing free exercise or free speech (a risk not run when
the State restrains only its
own expression).
The "transferred endorsement" test would also disrupt the
settled principle that policies providing incidental benefits to
religion do not contravene the Establishment Clause. That principle
is the basis for the constitutionality of a broad range of laws,
not merely those that implicate free-speech issues, see,
e. g.,
Witters v.
Washington Dept. of Servs. for Blind,
474 U. S. 481
(1986);
Mueller v.
Allen, 463 U. S. 388 (1983). It
has radical implications for our public policy to suggest that
neutral laws are invalid whenever hypothetical observers
may-even reasonably-confuse an incidental benefit to
religion with state endorsement.3
3 If it is true, as JUSTICE O'CONNOR suggests,
post, at
775, that she would not "be likely to come to a different result
from the plurality where truly private speech is allowed on equal
terms in a vigorous public forum that the government has
administered properly," then she is extending the "endorsement
test" to private speech to cover an eventuality that is "not
likely" to occur. Before doing that, it would seem desirable to
explore the precise degree of the unlikelihood (is it perhaps
lOO%?)-for as we point out in text, the extension to private speech
has considerable costs. Contrary to what JUSTICE O'CONNOR, JUSTICE
SOUTER, and JusTICE STEVENS argue, the endorsement test does not
supply an appropriate standard for the inquiry before us. It
supplies no standard whatsoever. The lower federal courts that
JUSTICE O'CONNOR'S concurrence identifies as having "applied the
endorsement test in precisely the context before us today,"
ibid., have reached precisely
differing results-which
is what led the Court to take this case. And if further proof of
the invited chaos
769
If Ohio is concerned about misperceptions, nothing prevents it
from requiring all private displays in the square to be identified
as such. That would be a content-neutral "manner" restriction that
is assuredly constitutional. See
Clark v.
Community for
Creative Non-Violence, 468 U. S. 288, 293
(1984). But the State may not, on the claim of misperception of
official endorsement, ban all private religious speech from the
public square, or discriminate against it by requiring religious
speech alone to disclaim public sponsorship.4
is required, one need only follow the debate between the
concurrence and JUSTICE STEVENS' dissent as to whether the
hypothetical beholder who will be the determinant of "endorsement"
should be any beholder (no matter how unknowledgeable), or the
average beholder, or (what JUSTICE STEVENS accuses the
concurrence of favoring) the "ultrareasonable" beholder. See
post, at 778-782 (O'CONNOR, J., concurring in part and
concurring in judgment);
post, at 807-808 (STEVENS, J.,
dissenting). And, of course, even when one achieves agreement upon
that question, it will be unrealistic to expect different judges
(or should it be juries?) to reach consistent answers as to what
any beholder, the average beholder, or the ultrareasonable beholder
(as the case may be) would think. It is irresponsible to make the
Nation's legislators walk this minefield.
4 For this reason, among others, we do not inquire into the
adequacy of the identification that was attached to the cross
ultimately erected in this case. The difficulties posed by such an
inquiry, however, are yet another reason to reject the principle of
"transferred endorsement." The only principled line for adequacy of
identification would be identification that is legible at whatever
distance the cross is visible. Otherwise, the uninformed viewer who
does not have time or inclination to come closer to read the sign
might be misled, just as (under current law) the uninformed viewer
who does not have time or inclination to inquire whether speech in
Capitol Square is publicly endorsed speech might be misled.
Needless to say, such a rule would place considerable constraint
upon religious speech, not to mention that it would be ridiculous.
But if one rejects that criterion, courts would have to decide (on
what basis we cannot imagine) how large an identifying sign is
large enough. Our Religion Clause jurisprudence is complex enough
without the addition of this highly litigable feature.
770
THOMAS, J., concurring
***
Religious expression cannot violate the Establishment Clause
where it (1) is purely private and (2) occurs in a traditional or
designated public forum, publicly announced and open to all on
equal terms. Those conditions are satisfied here, and therefore the
State may not bar respondents' cross from Capitol Square.
The judgment of the Court of Appeals is
Affirmed.
JUSTICE THOMAS, concurring.
I join the Court's conclusion that petitioners' exclusion of the
Ku Klux Klan's cross cannot be justified on Establishment Clause
grounds. But the fact that the legal issue before us involves the
Establishment Clause should not lead anyone to think that a cross
erected by the Ku Klux Klan is a purely religious symbol. The
erection of such a cross is a political act, not a Christian
one.
There is little doubt that the Klan's main objective is to
establish a racist white government in the United States. In Klan
ceremony, the cross is a symbol of white supremacy and a tool for
the intimidation and harassment of racial minorities, Catholics,
Jews, Communists, and any other groups hated by the Klan. The cross
is associated with the Klan not because of religious worship, but
because of the Klan's practice of cross burning. Cross burning was
entirely unknown to the early Ku Klux Klan, which emerged in some
Southern States during Reconstruction. W. Wade, The Fiery Cross:
The Ku Klux Klan in America 146 (1987). The practice appears to
have been the product of Thomas Dixon, whose book The Clansman
formed the story for the movie, The Birth of a Nation. See M.
Newton & J. Newton, The Ku Klux Klan: An Encyclopedia 145-146
(1991). In the book, cross burning is borrowed from an "old
Scottish rite" (Dixon apparently believed that the members of the
Reconstruction Ku Klux Klan were the "reincarnated souls of the
771
Clansmen of Old Scotland") that the Klan uses to celebrate the
execution of a former slave. T. Dixon, The Clansman:
An Historical Romance of the Ku Klux Klan 324-326 (1905).
Although the cross took on some religious significance in the
1920's when the Klan became connected with certain southern white
clergy, by the postwar period it had reverted to its original
function as an instrument of intimidation. Wade,
supra, at
185, 279.
To be sure, the cross appears to serve as a religious symbol of
Christianity for some Klan members. The hymn "The Old Rugged Cross"
is sometimes played during cross burnings. See W. Moore, A Sheet
and a Cross: A Symbolic Analysis of the Ku Klux Klan 287-288 (Ph.D.
dissertation, Tulane University, 1975). But to the extent that the
Klan had a message to communicate in Capitol Square, it was
primarily a political one. During his testimony before the District
Court, the leader of the local Klan testified that the cross was
seen "as a symbol of freedom, as a symbol of trying to unite our
people." App. 150. The Klan chapter wished to erect the cross
because it was also "a symbol of freedom from tyranny," and because
it "was also incorporated in the confederate battle flag."
Ibid. Of course, the cross also had some religious
connotation; the Klan leader linked the cross to what he claimed
was one of the central purposes of the Klan: "to establish a
Christian government in America."
Id., at 142-145. But
surely this message was both political and religious in nature.
Although the Klan might have sought to convey a message with
some religious component, I think that the Klan had a primarily
nonreligious purpose in erecting the cross. The Klan simply has
appropriated one of the most sacred of religious symbols as a
symbol of hate. In my mind, this suggests that this case may not
have truly involved the Establishment Clause, although I agree with
the Court's disposition because of the manner in which the case has
come
772
Opinion of O'CONNOR, J.
before us. In the end, there may be much less here than meets
the eye.
JUSTICE O'CONNOR, with whom JUSTICE SOUTER and JUSTICE BREYER
join, concurring in part and concurring in the judgment.
I join Parts I, II, and III of the Court's opinion and concur in
the judgment. Despite the messages of bigotry and racism that may
be conveyed along with religious connotations by the display of a
Ku Klux Klan cross, see
ante, at 771 (THOMAS, J.,
concurring), at bottom this case must be understood as it has been
presented to us-as a case about private religious expression and
whether the State's relationship to it violates the Establishment
Clause. In my view, "the endorsement test asks the right question
about governmental practices challenged on Establishment Clause
grounds, including challenged practices involving the display of
religious symbols,"
County of Allegheny v.
American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 628 (1989)
(O'CONNOR, J., concurring in part and concurring in judgment), even
where a neutral state policy toward private religious speech in a
public forum is at issue. Accordingly, I see no necessity to carve
out, as the plurality opinion would today, an exception to the
endorsement test for the public forum context.
For the reasons given by JUSTICE SOUTER, whose opinion I also
join, I conclude on the facts of this case that there is "no
realistic danger that the community would think that the [State]
was endorsing religion or any particular creed,"
Lamb's
Chapel v.
Center Moriches Union Free School Dist.,
508 U. S. 384,
395 (1993), by granting respondents a permit to erect their
temporary cross on Capitol Square. I write separately, however, to
emphasize that, because it seeks to identify those situations in
which government makes "'adherence to a religion relevant ... to a
person's standing in the political community,'"
Allegheny,
supra, at 594 (quoting
773
Lynch v.
Donnelly, 465 U. S. 668, 687 (1984)
(O'CONNOR, J., concurring), the endorsement test necessarily
focuses upon the perception of a reasonable, informed observer.
I
"In recent years, we have paid particularly close attention [in
Establishment Clause cases] to whether the challenged governmental
practice either has the purpose or effect of 'endorsing' religion,
a concern that has long had a place in our Establishment Clause
jurisprudence."
Allegheny, supra, at 592. See also
Lamb's
Chapel, supra, at 395;
School Dist. of Grand Rapids v.
Ball, 473 U.
S. 373, 390 (1985) (asking "whether the symbolic union of
church and state effected by the challenged governmental action is
sufficiently likely to be perceived by adherents of the controlling
denominations as an endorsement, and by the nonadherents as a
disapproval, of their individual religious choices"). A government
statement "'that religion or a particular religious belief is
favored or preferred,'"
Allegheny, supra, at 593 (quoting
Wallace v.
Jaffree, 472 U. S. 38, 70 (1985)
(O'CONNOR, J., concurring in judgment), violates the prohibition
against establishment of religion because such "[e]ndorsement sends
a message to nonadherents that they are outsiders, not full members
of the political community, and an accompanying message to
adherents that they are insiders, favored members of the political
community,"
Lynch, supra, at 688 (O'CONNOR, J., concurring).
See also
Allegheny, supra, at 628 (O'CONNOR, J., concurring
in part and concurring in judgment);
Wallace, supra, at 69
(O'CONNOR, J., concurring in judgment). Although "[e]xperience
proves that the Establishment Clause ... cannot easily be reduced
to a single test,"
Board of Ed. of Kiryas Joel Village School
Dist. v.
Grumet, 512 U. S. 687, 720 (1994)
(O'CONNOR, J., concurring in part and concurring in judgment), the
endorsement inquiry captures the fundamental requirement of the
Establishment Clause when courts are called upon to evalu-
774
Opinion of O'CONNOR, J.
ate the constitutionality of religious symbols on public
property. See
Allegheny, supra, at 593-594.
While the plurality would limit application of the endorsement
test to "expression
by the government itself, ... or else
government action alleged to
discriminate in favor of
private religious expression or activity,"
ante, at 764, I
believe that an impermissible message of endorsement can be sent in
a variety of contexts, not all of which involve direct government
speech or outright favoritism. See
infra, at 777778. It is
true that neither
Allegheny nor
Lynch, our two prior
religious display cases, involved the same combination of private
religious speech and a public forum that we have before us today.
Nonetheless, as JUSTICE SOUTER aptly demonstrates,
post, at
786-792, we have on several occasions employed an endorsement
perspective in Establishment Clause cases where private religious
conduct has intersected with a neutral governmental policy
providing some benefit in a manner that parallels the instant case.
Thus, while I join the discussion of
Lamb's Chapel and
Widmar v.
Vincent, 454 U. S. 263 (1981), in
Part III of the Court's opinion, I do so with full recognition that
the factors the Court properly identifies ultimately led in each
case to the conclusion that there was no endorsement of religion by
the State.
Lamb's Chapel, supra, at 395;
Widmar,
supra, at 274. See also
post, at 790-791 (SOUTER, J.,
concurring in part and concurring in judgment).
There is, as the plurality notes,
ante, at 765, "a
crucial difference between
government speech endorsing
religion, which the Establishment Clause forbids, and
private speech endorsing religion, which the Free Speech and
Free Exercise Clauses protect."
Board of Ed. of Westside
Community Schools (Dist. 66) v.
Mergens, 496 U. S. 226, 250 (1990)
(plurality opinion). But the quoted statement was made while
applying the endorsement test itself; indeed, the sentence upon
which the plurality relies was followed immediately by the
conclusion that "secondary school students are mature enough and
are likely to understand that a school does not
775
endorse or support student speech that it merely permits on a
nondiscriminatory basis."
Ibid. Thus, as I read the
decisions JUSTICE SOUTER carefully surveys, our prior cases do not
imply that the endorsement test has no place where private
religious speech in a public forum is at issue. Moreover, numerous
lower courts (including the Court of Appeals in this case) have
applied the endorsement test in precisely the context before us
today. See,
e. g., Chabad-Lubavitch of Georgia v.
Miller, 5 F.3d
1383 (CAll 1993) (en bane);
Kreisner v.
San
Diego, 1 F.3d
775, 782-787 (CA9 1993), cert. denied, 510 U. S. 1044 (1994);
Americans United for Separation of Church and State v.
Grand Rapids, 980 F.2d
1538 (CA6 1992) (en bane);
Doe v.
Small,
964 F.2d
611 (CA7 1992) (en bane); cf.
Smith v.
County of
Albemarle, 895 F.2d
953 (CA4), cert. denied, 498 U. S. 823 (1990);
Kaplan v.
Burlington, 891 F.2d
1024 (CA2 1989), cert. denied, 496 U. S. 926 (1990). Given this
background, I see no necessity to draw new lines where "[r]eligious
expression ... (1) is purely private and (2) occurs in a
traditional or designated public forum,"
ante, at 770.
None of this is to suggest that I would be likely to come to a
different result from the plurality where truly private speech is
allowed on equal terms in a vigorous public forum that the
government has administered properly. That the religious display at
issue here was erected by a private group in a public square
available "for use by the public ... for free discussion of public
questions, or for activities of a broad public purpose," Ohio
Admin. Code Ann. § 128-402(A) (1994), certainly informs the
Establishment Clause inquiry under the endorsement test. Indeed,
many of the factors the plurality identifies are some of those I
would consider important in deciding cases like this one where
religious speakers seek access to public spaces: "The State did not
sponsor respondents' expression, the expression was made on
government property that had been opened to the public for speech,
and permission was requested through the
776
Opinion of O'CONNOR, J.
same application process and on the same terms required of other
private groups."
Ante, at 763. And, as I read the plurality
opinion, a case is not governed by its proposed
per se rule
where such circumstances are otherwise-that is, where preferential
placement of a religious symbol in a public space or government
manipulation of the forum is involved. See
ante, at 766.
To the plurality's consideration of the open nature of the forum
and the private ownership of the display, however, I would add the
presence of a sign disclaiming government sponsorship or
endorsement on the Klan cross, which would make the State's role
clear to the community. This factor is important because, as
JUSTICE SOUTER makes clear,
post, at 785-786, certain
aspects of the cross display in this case arguably intimate
government approval of respondents' private religious
message-particularly that the cross is an especially potent
sectarian symbol which stood unattended in close proximity to
official government buildings. In context, a disclaimer helps
remove doubt about state approval of respondents' religious
message. Cf.
Widmar, supra, at 274, n. 14 ("In light of the
large number of groups meeting on campus, however, we doubt
students could draw any reasonable inference of University support
from the mere fact of a campus meeting place. The University's
student handbook already notes that the University's name will not
'be identified in any way with the aims, policies, programs,
products, or opinions of any organization or its members' "). On
these facts, then, "the message [of inclusion] is one of neutrality
rather than endorsement."
Mergens, supra, at 248 (plurality
opinion).
Our agreement as to the outcome of this case, however, cannot
mask the fact that I part company with the plurality on a
fundamental point: I disagree that "[i]t has radical implications
for our public policy to suggest that neutral laws are invalid
whenever hypothetical observers
may-even reasonably-confuse
an incidental benefit to religion with state
777
endorsement."
Ante, at 768. On the contrary, when the
reasonable observer would view a government practice as endorsing
religion, I believe that it is our
duty to hold the practice
invalid. The plurality today takes an exceedingly narrow view of
the Establishment Clause that is out of step both with the Court's
prior cases and with well-established notions of what the
Constitution requires. The Clause is more than a negative
prohibition against certain narrowly defined forms of government
favoritism, see
ante, at 766; it also imposes affirmative
obligations that may require a State, in some situations, to take
steps to avoid being perceived as supporting or endorsing a private
religious message. That is, the Establishment Clause forbids a
State to hide behind the application of formally neutral criteria
and remain studiously oblivious to the effects of its actions.
Governmental intent cannot control, and not all state policies are
permissible under the Religion Clauses simply because they are
neutral in form.
Where the government's operation of a public forum has the
effect of endorsing religion, even if the governmental actor
neither intends nor actively encourages that result, see
Lynch, 465 U. S., at 690 (O'CONNOR, J., concurring), the
Establishment Clause is violated. This is so not because of "
'transferred endorsement,'"
ante, at 764, or mistaken
attribution of private speech to the State, but because the State's
own actions (operating the forum in a particular manner and
permitting the religious expression to take place therein), and
their relationship to the private speech at issue,
actually
convey a message of endorsement. At some point, for example, a
private religious group may so dominate a public forum that a
formal policy of equal access is transformed into a demonstration
of approval. Cf.
Mergens, 454 U. S., at 275 (concluding that
there was no danger of an Establishment Clause violation in a
public university's allowing access by student religious groups to
facilities available to others "[a]t least in the absence of
empirical evidence that religious
778
Opinion of O'CONNOR, J.
groups will dominate [the school's] open forum"). Other
circumstances may produce the same effect-whether because of the
fortuity of geography, the nature of the particular public space,
or the character of the religious speech at issue, among others.
Our Establishment Clause jurisprudence should remain flexible
enough to handle such situations when they arise.
In the end, I would recognize that the Establishment Clause
inquiry cannot be distilled into a fixed,
per se rule. Thus,
"[e]very government practice must be judged in its unique
circumstances to determine whether it constitutes an endorsement or
disapproval of religion."
Lynch, 465 U. S., at 694
(O'CONNOR, J., concurring). And this question cannot be answered in
the abstract, but instead requires courts to examine the history
and administration of a particular practice to determine whether it
operates as such an endorsement. I continue to believe that
government practices relating to speech on religious topics "must
be subjected to careful judicial scrutiny," ibid., and that the
endorsement test supplies an appropriate standard for that
inquiry.
II
Conducting the review of government action required by the
Establishment Clause is always a sensitive matter. Unfortunately,
as I noted in
Allegheny, "even the development of
articulable standards and guidelines has not always resulted in
agreement among the Members of this Court on the results in
individual cases." 492 U. S., at 623. Today, JUSTICE STEVENS
reaches a different conclusion regarding whether the Board's
decision to allow respondents' display on Capitol Square
constituted an impermissible endorsement of the cross' religious
message. Yet I believe it is important to note that we have not
simply arrived at divergent results after conducting the same
analysis. Our fundamental point of departure, it appears, concerns
the knowledge that is properly attributed to the test's "reasonable
observer [who]
779
evaluates whether a challenged governmental practice conveys a
message of endorsement of religion."
Id., at 630 (O'CONNOR,
J., concurring in part and concurring in judgment). In my view,
proper application of the endorsement test requires that the
reasonable observer be deemed more informed than the casual
passerby postulated by JUSTICE STEVENS.
Because an Establishment Clause violation must be moored in
government action of some sort, and because our concern is with the
political community writ large, see
Allegheny, supra, at 627
(O'CONNOR, J., concurring in part and concurring in judgment);
Lynch, supra, at 690, the endorsement inquiry is not about
the perceptions of particular individuals or saving isolated
nonadherents from the discomfort of viewing symbols of a faith to
which they do not subscribe. Indeed, to avoid "entirely sweep[ing]
away all government recognition and acknowledgment of the role of
religion in the lives of our citizens,"
Allegheny, supra, at
623 (O'CONNOR, J., concurring in part and concurring in judgment),
our Establishment Clause jurisprudence must seek to identify the
point at which the government becomes responsible, whether due to
favoritism toward or disregard for the evident effect of religious
speech, for the injection of religion into the politicallife of the
citizenry.
I therefore disagree that the endorsement test should focus on
the actual perception of individual observers, who naturally have
differing degrees of knowledge. Under such an approach, a religious
display is necessarily precluded so long as some passersby would
perceive a governmental endorsement thereof. In my view, however,
the endorsement test creates a more collective standard to gauge
"the 'objective' meaning of the [government's] statement in the
community,"
Lynch, supra, at 690 (O'CONNOR, J., concurring).
In this respect, the applicable observer is similar to the
"reasonable person" in tort law, who "is not to be identified with
any ordinary individual, who might occasionally do unreasonable
780
Opinion of O'CONNOR, J.
things," but is "rather a personification of a community ideal
of reasonable behavior, determined by the [collective] social
judgment." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser
and Keeton on Law of Torts 175 (5th ed. 1984). Thus, "we do not ask
whether there is
any person who could find an endorsement of
religion, whether
some people may be offended by the
display, or whether
some reasonable person
might
think [the State] endorses religion."
Americans United, 980
F. 2d, at 1544. Saying that the endorsement inquiry should be
conducted from the perspective of a hypothetical observer who is
presumed to possess a certain level of information that all
citizens might not share neither chooses the perceptions of the
majority over those of a "reasonable non-adherent," cf. L. Tribe,
American Constitutional Law 1293 (2d ed. 1988), nor invites
disregard for the values the Establishment Clause was intended to
protect. It simply recognizes the fundamental difficulty inherent
in focusing on actual people: There is always
someone who,
with a particular quantum of knowledge, reasonably might perceive a
particular action as an endorsement of religion. A State has not
made religion relevant to standing in the political community
simply because a particular viewer of a display might feel
uncomfortable.
It is for this reason that the reasonable observer in the
endorsement inquiry must be deemed aware of the history and context
of the community and forum in which the religious display appears.
As I explained in
Allegheny, "the 'history and ubiquity' of
a practice is relevant because it provides part of the context in
which a reasonable observer evaluates whether a challenged
governmental practice conveys a message of endorsement of
religion." 492 U. S., at 630. Nor can the knowledge attributed to
the reasonable observer be limited to the information gleaned
simply from viewing the challenged display. Today's proponents of
the endorsement test all agree that we should attribute to the
observer knowledge that the cross is a religious symbol, that
781
Capitol Square is owned by the State, and that the large
building nearby is the seat of state government. See
post,
at 792-793 (SOUTER, J., concurring in part and concurring in
judgment);
post, at 806 (STEVENS, J., dissenting). In my
view, our hypothetical observer also should know the general
history of the place in which the cross is displayed. Indeed, the
fact that Capitol Square is a public park that has been used over
time by private speakers of various types is as much a part of the
display's context as its proximity to the Ohio Statehouse. Cf.
Allegheny, supra, at 600, n. 50 (noting that "[t]he Grand
Staircase does not appear to be the kind of location in which all
were free to place their displays for weeks at a time"). This
approach does not require us to assume an "'ultrareasonable
observer' who understands the vagaries of this Court's First
Amendment jurisprudence,"
post, at 807 (STEVENS, J.,
dissenting). An informed member of the community will know how the
public space in question has been used in the past-and it is that
fact, not that the space may meet the legal definition of a public
forum, which is relevant to the endorsement inquiry.
JUSTICE STEVENS' property-based argument fails to give
sufficient weight to the fact that the cross at issue here was
displayed in a forum traditionally open to the public. "The very
fact that a sign is installed on public property," his dissent
suggests, "implies official recognition and reinforcement of its
message."
Post, at 801. While this may be the case where a
government building and its immediate curtilage are involved, it is
not necessarily so with respect to those "places which by long
tradition or by government fiat have been devoted to assembly and
debate, ... [particularly] streets and parks which 'have
immemorially been held in trust for the use of the public and, time
out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.'"
Perry Ed. Assn. v.
Perry Local Educators' Assn.,
460 U. S. 37, 45
(1983) (quoting
Hague v.
Committee for Industrial
Organization, 307
782
Opinion of O'CONNOR, J.
u. S. 496, 515 (1939)). To the extent there is a presumption
that "structures on government property-and, in particular, in
front of buildings plainly identified with the Stateimply state
approval of their message,"
post, at 804 (STEVENS, J.,
dissenting), that presumption can be rebutted where the property at
issue is a forum historically available for private expression. The
reasonable observer would recognize the distinction between speech
the government supports and speech that it merely allows in a place
that traditionally has been open to a range of private speakers
accompanied, if necessary, by an appropriate disclaimer.
In this case, I believe, the reasonable observer would view the
Klan's cross display fully aware that Capitol Square is a public
space in which a multiplicity of groups, both secular and
religious, engage in expressive conduct. It is precisely this type
of knowledge that we presumed in
Lamb's Chapel, 508 U. S.,
at 395, and in
Mergens, 496 U. S., at 250 (plurality
opinion). Moreover, this observer would certainly be able to read
and understand an adequate disclaimer, which the Klan had informed
the State it would include in the display at the time it applied
for the permit, see App. to Pet. for Cert. A15-A16;
post, at
793-794, n. 1 (SOUTER, J., concurring in part and concurring in
judgment), and the content of which the Board could have defined as
it deemed necessary as a condition of granting the Klan's
application. Cf.
American Civil Liberties Union v.
Wilkinson, 895 F.2d
1098, 1104-1106 (CA6 1990). On the facts of this case,
therefore, I conclude that the reasonable observer would not
interpret the State's tolerance of the Klan's private religious
display in Capitol Square as an endorsement of religion.
III
"To be sure, the endorsement test depends on a sensitivity to
the unique circumstances and context of a particular challenged
practice and, like any test that is sensitive to context,
783
it may not always yield results with unanimous agreement at the
margins."
Allegheny, 492 U. S., at 629 (O'CONNOR, J.,
concurring in part and concurring in judgment). In my view,
however, this flexibility is a virtue and not a vice; "courts must
keep in mind both the fundamental place held by the Establishment
Clause in our constitutional scheme and the myriad, subtle ways in
which Establishment Clause values can be eroded,"
Lynch, 465
U. S., at 694 (O'CONNOR, J., concurring).
I agree that "compliance with the Establishment Clause is a
state interest sufficiently compelling to justify contentbased
restrictions on speech."
Ante, at 761-762. The Establishment
Clause "prohibits government from appearing to take a position on
questions of religious belief or from 'making adherence to a
religion relevant in any way to a person's standing in the
political community.'''
Allegheny, supra, at 593-594
(quoting
Lynch, supra, at 687 (O'CONNOR, J., concurring)).
Because I believe that, under the circumstances at issue here,
allowing the Klan cross, along with an adequate disclaimer, to be
displayed on Capitol Square presents no danger of doing so, I
conclude that the State has not presented a compelling
justification for denying respondents their permit.
JUSTICE SOUTER, with whom JUSTICE O'CONNOR and JUSTICE BREYER
join, concurring in part and concurring in the judgment.
I concur in Parts I, II, and III of the Court's opinion. I also
want to note specifically my agreement with the Court's suggestion
that the State of Ohio could ban all unattended private displays in
Capitol Square if it so desired. See
ante, at 761; see also
post, at 802-804 (STEVENS, J., dissenting). The fact that
the capitol lawn has been the site of public protests and
gatherings, and is the location of any number of the government's
own unattended displays, such as statues, does
784
Opinion of SOUTER, J.
not disable the State from closing the square to all privately
owned, unattended structures. A government entity may ban posters
on publicly owned utility poles to eliminate visual clutter,
Members of City Council of Los Angeles v.
Taxpayers for
Vincent, 466 U.
S. 789, 808 (1984), and may bar camping as part of a
demonstration in certain public parks,
Clark v.
Community
for Creative Non-Violence, 468 U. S. 288 (1984). It
may similarly adopt a content-neutral policy prohibiting private
individuals and groups from erecting unattended displays in forums
around public buildings. See
Ward v.
Rock Against
Racism, 491 U. S.
781, 791 (1989) ("[E]ven in a public forum the government may
impose reasonable restrictions on the time, place, or manner of
protected speech, provided [that] the restrictions 'are justified
without reference to the content of the regulated speech, that they
are narrowly tailored to serve a significant governmental interest,
and that they leave open ample alternative channels for
communication of the information,'" quoting
Clark, supra, at
293).
Otherwise, however, I limit my concurrence to the judgment.
Although I agree in the end that, in the circumstances of this
case, petitioners erred in denying the Klan's application for a
permit to erect a cross on Capitol Square, my analysis of the
Establishment Clause issue differs from JUSTICE SCALIA'S, and I
vote to affirm in large part because of the possibility of affixing
a sign to the cross adequately disclaiming any government
sponsorship or endorsement of it.
The plurality's opinion declines to apply the endorsement test
to the Board's action, in favor of a
per se rule: religious
expression cannot violate the Establishment Clause where it (1) is
private and (2) occurs in a public forum, even if a reasonable
observer would see the expression as indicating state endorsement.
Ante, at 770. This
per se rule would be an exception
to the endorsement test, not previously recognized and out of
square with our precedents.
785
I
My disagreement with the plurality on the law may receive some
focus from attention to a matter of straight fact that we see
alike: in some circumstances an intelligent observer may mistake
private, unattended religious displays in a public forum for
government speech endorsing religion. See
ante, at 768
(acknowledging that "hypothetical observers
may-even
reasonably-confuse an incidental benefit to religion with state
endorsement") (emphasis in original); see also
ante, at 769,
n. 4 (noting that an observer might be "misled" by the presence of
the cross in Capitol Square if the disclaimer was of insufficient
size or if the observer failed to enquire whether the State had
sponsored the cross). The Klan concedes this possibility as well,
saying that, in its view, "on a different set of facts, the
government might be found guilty of violating the endorsement test
by permitting a private religious display in a public forum." Brief
for Respondents 43.
An observer need not be "obtuse,"
Doe v.
Small,
964 F.2d
611,630 (CA71992) (Easterbrook, J., concurring), to presume
that an unattended display on government land in a place of
prominence in front of a government building either belongs to the
government, represents government speech, or enjoys its location
because of government endorsement of its message. Capitol Square,
for example, is the site of a number of unattended displays owned
or sponsored by the government, some permanent (statues), some
temporary (such as the Christmas tree and a "Seasons Greetings"
banner), and some in between (flags, which are, presumably, taken
down and put up from time to time). See App. 59, 64-65 (photos);
Appendices A and B to this opinion,
infra. Given the
domination of the square by the government's own displays, one
would not be a dimwit as a matter of law to think that an
unattended religious display there was endorsed by the government,
even though the square has also been the site of three privately
sponsored, unattended displays over the
786
Opinion of SOUTER, J.
years (a menorah, a United Way "thermometer," and some artisans'
booths left overnight during an arts festival),
ante, at
758, cf.
County of Allegheny v.
American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U. S. 573, 600, n. 50
(1989) ("Even if the Grand Staircase occasionally was used for
displays other than the creche ... , it remains true that any
display located there fairly may be understood to express views
that receive the support and endorsement of the government"), and
even though the square meets the legal definition of a public forum
and has been used "[f]or over a century" as the site of "speeches,
gatherings, and festivals,"
ante, at 757. When an individual
speaks in a public forum, it is reasonable for an observer to
attribute the speech, first and foremost, to the speaker, while an
unattended display (and any message it conveys) can naturally be
viewed as belonging to the owner of the land on which it
stands.
In sum, I do not understand that I am at odds with the plurality
when I assume that in some circumstances an intelligent observer
would reasonably perceive private religious expression in a public
forum to imply the government's endorsement of religion. My
disagreement with the plurality is simply that I would attribute
these perceptions of the intelligent observer to the reasonable
observer of Establishment Clause analysis under our precedents,
where I believe that such reasonable perceptions matter.
II
In
Allegheny, the Court alluded to two elements of the
analytical framework supplied by
Lemon v.
Kurtzman,
403 U. S. 602
(1971), by asking "whether the challenged governmental practice
either has the purpose or effect of 'endorsing' religion." 492 U.
S., at 592. We said that "the prohibition against governmental
endorsement of religion 'preclude[s] government from conveying or
attempting to convey a message that religion or a particular
religious belief is favored or preferred,'"
id., at 593,
quoting
Wallace v.
Jaf-
787
free, 472 U.
S. 38, 70 (1985) (O'CONNOR, J., concurring injudgment)
(emphasis deleted), and held that "[t]he Establishment Clause, at
the very least, prohibits government from appearing to take a
position on questions of religious belief," 492 U. S., at
593-594.
Allegheny's endorsement test cannot be dismissed, as
JusTICE SCALIA suggests, as applying only to situations in which
there is an allegation that the Establishment Clause has been
violated through "expression by the government itself" or
"government action ... discriminat[ing] in favor of private
religious expression."
Ante, at 764 (emphasis deleted). Such
a distinction would, in all but a handful of cases, make
meaningless the "effect-of-endorsing" part of
Allegheny's
test. Effects matter to the Establishment Clause, and one,
principal way that we assess them is by asking whether the practice
in question creates the appearance of endorsement to the reasonable
observer. See
Allegheny, supra, at 630, 635636 (O'CONNOR,
J., concurring in part and concurring injudgment);
Witters
v.
Washington Dept. of Servs. for Blind, 474 U. S. 481, 493 (1986)
(O'CONNOR, J., concurring in part and concurring in judgment); see
also
Allegheny, supra, at 593594, 599-600 (majority
opinion);
Lynch v.
Donnelly, 465 U. S. 668, 690 (1984)
(O'CONNOR, J., concurring). If a reasonable observer would perceive
a religious display in a government forum as government speech
endorsing religion, then the display has made "religion relevant,
in ... public perception, to status in the political community."
Id., at 692 (O'CONNOR, J., concurring). Unless we are to
retreat entirely to government intent and abandon consideration of
effects, it makes no sense to recognize a public perception of
endorsement as a harm only in that subclass of cases in which the
government owns the display. Indeed, the Court stated in
Allegheny that "once the judgment has been made that a
particular proclamation of Christian belief, when disseminated from
a particular location on government property, has the effect of
demonstrating the government's endorsement
788
Opinion of SOUTER, J.
of Christian faith, then it necessarily follows that the
practice must be enjoined." 492 U. S., at 612. Notably, we did not
say that it was only a "particular government proclamation" that
could have such an unconstitutional effect, nor does the passage
imply anything of the kind.
The significance of the fact that the Court in
Allegheny
did not intend to lay down a
per se rule in the way
suggested by the plurality today has been confirmed by subsequent
cases. In
Board of Ed. of Westside Community Schools (Dist.
66) v.
Mergens, 496 U. S. 226 (1990), six
Justices applied the endorsement test to decide whether the
Establishment Clause would be violated by a public high school's
application of the Equal Access Act, Pub. L. 98-377, 98 Stat. 1302,
20 U. S. C. §§4071-4074, to allow students to form a religious club
having the same access to meeting facilities as other
"noncurricular" groups organized by students. A plurality of four
Justices concluded that such an equal access policy "does not
convey a message of state approval or endorsement of the particular
religion" espoused by the student religious group. 496 U. S., at
252 (O'CONNOR, J., joined by REHNQUIST, C. J., and White and
Blackmun, JJ.). Two others concurred in the judgment in order "to
emphasize the steps [the school] must take to avoid appearing to
endorse the [religious] club's goals."
Id., at 263 (opinion
of Marshall, J., joined by Brennan, J.); see also id., at 264 ("If
public schools are perceived as conferring the
imprimatur of
the State on religious doctrine or practice as a result of such a
policy, the nominally 'neutral' character of the policy will not
save it from running afoul of the Establishment Clause") (emphasis
in original).
What is important is that, even though
Mergens involved
private religious speech in a nondiscriminatory "'limited open
forum,'" id., at 233, 247, a majority of the Court reached the
conclusion in the case not by applying an irrebuttable presumption,
as the plurality does today, but by making a contextual judgment
taking account of the circum-
789
stances of the specific case. See id., at 250-252 (plurality
opinion); id., at 264-270 (opinion of Marshall, J., joined by
Brennan, J.); cf.
Allegheny, 492 U. S., at 629 (O'CONNOR,
J., concurring in part and concurring in judgment) ("[T]he
endorsement test depends on a sensitivity to the unique
circumstances and context of a particular challenged practice");
Lynch, supra, at 694 (O'CONNOR, J., concurring) ("Every
government practice must be judged in its unique circumstances to
determine whether it constitutes an endorsement or disapproval of
religion"). The
Mergens plurality considered the nature of
the likely audience, 496 U. S., at 250 ("[S]econdary school
students are mature enough ... to understand that a school does not
endorse or support student speech that it merely permits on a
nondiscriminatory basis"); the details of the particular forum,
id., at 252 (noting "the broad spectrum of officially recognized
student clubs" at the school, and the students' freedom "to
initiate and organize additional student clubs"); the presumptively
secular nature of most student organizations,
ibid. (" '[I]n
the absence of empirical evidence that religious groups will
dominate [the] ... open forum, ... the advancement of religion
would not be the forum's "primary effect,"'" quoting
Widmar
v.
Vincent, 454 U. S. 263, 275
(1981)); and the school's specific action or inaction that would
disassociate itself from any religious message, 496 U. S., at 251
("[N]o school officials actively participate" in the religious
group's activities). The plurality, moreover, expressly relied on
the fact that the school could issue a disclaimer specific to the
religious group, concluding that "[t]o the extent a school makes
clear that its recognition of [a religious student group] is not an
endorsement ... , students will reasonably understand that the ...
recognition of the club evinces neutrality toward, rather than
endorsement of, religious speech."
Ibid.; see also
id., at 270 (Marshall, J., concurring in judgment) (noting
importance of schools "taking whatever further steps are necessary
to make clear that their recognition of a religious club does
790
Opinion of SOUTER, J.
not reflect their endorsement of the views of the club's
participants").
Similarly, in
Lamb's Chapel v.
Center Moriches Union
Free School Dist., 508 U. S. 384 (1993), we
held that an evangelical church, wanting to use public school
property to show a series of films about child rearing with a
religious perspective, could not be refused access to the premises
under a policy that would open the school to other groups showing
similar films from a nonreligious perspective. In reaching this
conclusion, we expressly concluded that the policy would "not have
the principal or primary effect of advancing or inhibiting
religion." 508 U. S., at 395. Again we looked to the specific
circumstances of the private religious speech and the public forum:
the film would not be shown during school hours or be sponsored by
the school, it would be open to the public, and the forum had been
used "repeatedly" by "a wide variety" of other private speakers.
Ibid. "Under these circumstances," we concluded, "there
would have been no realistic danger that the community would think
that the [school] was endorsing religion."
Ibid. We thus
expressly looked to the endorsement effects of the private
religious speech at issue, notwithstanding the fact that there was
no allegation that the Establishment Clause had been violated
through active "expression by the government itself" or affirmative
"government action ... discriminat[ing] in favor of private
religious expression."
Ante, at 764 (emphasis deleted).
Indeed, the issue of whether the private religious speech in a
government forum had the effect of advancing religion was central,
rather than irrelevant, to our Establishment Clause enquiry. This
is why I agree with the Court that "[t]he
Lamb's Chapel
reasoning applies
afortiori here,"
ante, at 762.
Widmar v.
Vincent, supra, is not to the contrary.
Although
Widmar was decided before our adoption of the
endorsement test in
Allegheny, its reasoning fits with such
a test and not with the
per se rule announced today. There,
in determining whether it would violate the Establishment
791
Clause to allow private religious speech in a "generally open
forum" at a university, 454 U. S., at 269, the Court looked to the
Lemon test, 454 U. S., at 271, and focused on the "effects"
prong, id., at 272, in reaching a contextual judgment. It was
relevant that university students "should be able to appreciate
that the University's policy is one of neutrality toward religion,"
that students were unlikely, as a matter of fact, to "draw any
reasonable inference of University support from the mere fact of a
campus meeting place," and that the University's student handbook
carried a disclaimer that the University should not "'be identified
in any way with the ... opinions of any [student] organization.'"
Id., at 274, n. 14. "In this context," id., at 273, and in
the "absence of empirical evidence that religious groups [would]
dominate [the] open forum," id., at 275, the Court found that the
forum at issue did not "confer any imprimatur of state approval on
religious sects or practices," id., at 274.
Even if precedent and practice were otherwise, however, and
there were an open question about applying the endorsement test to
private speech in public forums, I would apply it in preference to
the plurality's view, which creates a serious loophole in the
protection provided by the endorsement test. In JUSTICE SCALIA'S
view, as I understand it, the Establishment Clause is violated in a
public forum only when the government itself intentionally endorses
religion or willfully "foster[s]" a misperception of endorsement in
the forum,
ante, at 766, or when it "manipulates" the public
forum "in such a manner that only certain religious groups take
advantage of it," ibid. If the list of forbidden acts is truly this
short, then governmental bodies and officials are left with
generous scope to encourage a multiplicity of religious speakers to
erect displays in public forums. As long as the governmental entity
does not "manipulat[e]" the forum in such a way as to exclude all
other speech, the plurality's opinion would seem to invite such
government encouragement, even when the result will be the
domination of the
792
Opinion of SOUTER, J.
forum by religious displays and religious speakers. By allowing
government to encourage what it cannot do on its own, the proposed
per se rule would tempt a public body to contract out its
establishment of religion, by encouraging the private enterprise of
the religious to exhibit what the government could not display
itself.
Something of the sort, in fact, may have happened here.
Immediately after the District Court issued the injunction
ordering petitioners to grant the Klan's permit, a local church
council applied for a permit, apparently for the purpose of
overwhelming the Klan's cross with other crosses. The council
proposed to invite all local churches to erect crosses, and the
Board granted "blanket permission" for "all churches friendly to or
affiliated with" the council to do so. See Brief in Opposition
RA24-RA26. The end result was that a part of the square was strewn
with crosses, see Appendices A and B to this opinion,
infra,
at 795-796, and while the effect in this case may have provided
more embarrassment than suspicion of endorsement, the opportunity
for the latter is clear.
III
As for the specifics of this case, one must admit that a number
of facts known to the Board, or reasonably anticipated, weighed in
favor of upholding its denial of the permit. For example, the Latin
cross the Klan sought to erect is the principal symbol of
Christianity around the world, and display of the cross alone could
not reasonably be taken to have any secular point. It was displayed
immediately in front of the Ohio Statehouse, with the government's
flags flying nearby, and the government's statues close at hand.
For much of the time the cross was supposed to stand on the square,
it would have been the only private display on the public plot (the
menorah's permit expired several days before the cross actually
went up). See Pet. for Cert. A15-A16, A31; 30 F. 3d, at 677. There
was nothing else on the state-
793
house lawn that would have suggested a forum open to any and all
private, unattended religious displays.
Based on these and other factors, the Board was understandably
concerned about a possible Establishment Clause violation if it had
granted the permit. But a fiat denial of the Klan's application was
not the Board's only option to protect against an appearance of
endorsement, and the Board was required to find its most "narrowly
drawn" alternative,
Perry Ed. Assn. v.
Perry Local
Educators' Assn., 460 U. S. 37, 45 (1983);
see also
ante, at 761. Either of two possibilities would
have been better suited to this situation. In support of the Klan's
application, its representative stated in a letter to the Board
that the cross would be accompanied by a disclaimer, legible "from
a distance," explaining that the cross was erected by private
individuals" 'without government support.'" App. 118. The letter
said that "the contents of the sign" were "open to negotiation."
Ibid.1 The
1 This description of the disclaimer, as well as the agreement
to negotiate, also appeared in the Klan's District Court complaint,
App. 26, and in stipulations of fact jointly filed in the District
Court by both parties, id., at 100, , 32. The Klan conceded before
the District Court that "the state could have required ... a
disclaimer" like the one proposed, Memorandum in Support of
Temporary Restraining Order and Preliminary Injunction in No.
C2-93-1162 (SD Ohio), p. 5, and the State assumed throughout
the litigation that the display would include the disclaimer, see,
e. g., Memorandum of Defendants in Opposition to
Plaintiffs's Motion for Temporary Restraining Order and for
Preliminary Injunction in No.
C2-93-1162 (SD Ohio), pp. 6,
21. Both parties considered the disclaimer as an integral part of
the display that the Klan desired to place on Capitol Square. Thus
the District Court's order, which did not expressly require the
disclaimer in awarding the injunction, see Pet. for Cert. A26
("Plaintiffs are entitled to an injunction requiring the defendants
to issue a permit to erect a cross on Capitol Square"), cannot
reasonably be read to mean that the disclaimer was unnecessary.
Indeed, in both its findings of fact and conclusions of law, the
District Court discussed the presence and importance of the
disclaimer, see id., at A15-A16 (findings of fact), A20, A22-A23
(conclusions of law), and the Klan itself understood that the
District Court's order was
794
Opinion of SOUTER, J.
Board, then, could have granted the application subject to the
condition that the Klan attach a disclaimer sufficiently large and
clear to preclude any reasonable inference that the cross was there
to "demonstrat[e] the government's allegiance to, or endorsement
of, the Christian faith."
Allegheny, 492 U. S., at 612.2 In
the alternative, the Board could have instituted a policy of
restricting all private, unattended displays to one area of the
square, with a permanent sign marking the area as a forum for
private speech carrying no endorsement from the State.
With such alternatives available, the Board cannot claim that
its fiat denial was a narrowly tailored response to the Klan's
permit application and thus cannot rely on that denial as necessary
to ensure that the State did not "appea[r] to take a position on
questions of religious belief."
Id., at 594. For these
reasons, I concur in the judgment.
based on the assumption that a disclaimer would accompany the
cross, since the cross the Klan put up on the basis of the District
Court's command in fact carried a disclaimer, see App. 63 (photo);
Appendix to opinion of STEVENS, J.,
post, at 816. Since the
litigation preceded the appearance of the cross and the sign, the
adequacy of the sign actually produced was not considered. The
adequacy of a disclaimer, in size as well as content, is, of
course, a proper subject of judicial scrutiny when placed in issue.
Whether the flimsy cardboard sign attached by the Klan to the base
of the cross functioned as an adequate disclaimer in this case is a
question not before us.
2 Of course, the presence of a disclaimer does not always remove
the possibility that a private religious display "convey[s] or
attempt[s] to convey a message that religion or a particular
religious belief is favored or preferred,"
Allegheny, 492 U.
S., at 593 (emphasis, internal quotation marks, and citation
omitted), when other indicia of endorsement (e. g., objective
indications that the government in fact invited the display or
otherwise intended to further a religious purpose) outweigh the
mitigating effect of the disclaimer, or when the disclaimer itself
does not sufficiently disclaim government support. See,
e. g.,
Stone v.
Graham, 449 U. S. 39, 41 (1980);
Allegheny, supra, at 600-601; cf.
ante, at 769, n. 4.
In this case, however, there is no reason to presume that an
adequate disclaimer could not have been drafted. Cf. Parish,
Private Religious Displays in Public Fora, 61 U. Chi. L. Rev. 253,
285-287 (1994).
795
APPENDIX A TO OPINION OF SOUTER, J.
796
Appendix B to opinion of SOUTER, J.
APPENDIX B TO OPINION OF SOUTER, J.
797
JUSTICE STEVENS, dissenting.
The Establishment Clause should be construed to create a strong
presumption against the installation of unattended religious
symbols on public property. Although the State of Ohio has allowed
Capitol Square, the area around the seat of its government, to be
used as a public forum, and although it has occasionally allowed
private groups to erect other sectarian displays there, neither
fact provides a sufficient basis for rebutting that presumption. On
the contrary, the sequence of sectarian displays disclosed by the
record in this case illustrates the importance of rebuilding the
"wall of separation between church and State" that Jefferson
envisioned.1
I
At issue in this case is an unadorned Latin cross, which the Ku
Klux Klan placed, and left unattended, on the lawn in front of the
Ohio State Capitol. The Court decides this case on the assumption
that the cross was a religious symbol. I agree with that assumption
notwithstanding the hybrid character of this particular object. The
record indicates that the "Grand Titan of the Knights of the Ku
Klux Klan for the Realm of Ohio" applied for a permit to place a
cross in front of the state capitol because" 'the Jews'" were
placing a "symbol for the Jewish belief" in the square. App. 173.2
Some observers, unaware of who had sponsored the cross, or
unfamiliar with the history of the Klan and its reaction to the
menorah, might interpret the Klan's cross as an inspirational
symbol of the crucifixion and resurrection of Jesus Christ.
1 See
Reynolds v.
United States, 98 U. S. 145, 164
(1879).
2 The "Grand Titan" apparently was referring to a menorah that a
private group placed in the square during the season of Chanukah.
App. 98; see
infra, at 808-809. The Klan found the menorah
offensive. The Klan's cross, in turn, offended a number of
observers. It was vandalized the day after it was erected, and a
local church group applied for, and was granted, permission to
display its own crosses around the Klan's to protest the latter's
presence. See Record 31.
798
STEVENS, J., dissenting
More knowledgeable observers might regard it, given the context,
as an antisemitic symbol of bigotry and disrespect for a particular
religious sect. Under the first interpretation, the cross is
plainly a religious symbol.3 Under the second, an icon of
intolerance expressing an anticlerical message should also be
treated as a religious symbol because the Establishment Clause must
prohibit official sponsorship of irreligious as well as religious
messages. See
Wallace v.
Jaffree, 472 U. S. 38, 52 (1985).
This principle is no less binding if the antireligious message is
also a bigoted message. See
United States v.
Ballard,
322 U. S. 78,
86-89 (1944) (government lacks power to judge truth of religious
beliefs);
Watson v.
Jones, 13 Wall. 679, 728 (1872)
("The law knows no heresy, and is committed to the support of no
dogma, the establishment of no sect").
Thus, while this unattended, freestanding wooden cross was
unquestionably a religious symbol, observers may well have received
completely different messages from that symbol. Some might have
perceived it as a message of love, others as a message of hate,
still others as a message of exclusion-a statehouse sign calling
powerfully to mind their outsider status. In any event, it was a
message that the State of Ohio may not communicate to its citizens
without violating the Establishment Clause.
3 Indeed, the Latin cross is identifiable as a symbol of a
particular religion, that of Christianity; and, further, as a
symbol of particular denominations within Christianity. See
American Civil Liberties Union v.
St. Charles,
794 F.2d
265, 271
(CA7 1986) ("Such a display is not only
religious but also sectarian. This is not just because some
religious Americans are not Christians. Some Protestant sects still
do not display the cross .... The Greek Orthodox church uses as its
symbol the Greek (equilateral) cross, not the Latin cross ....
[T]he more sectarian the display, the closer it is to the original
targets of the [establishment] clause, so the more strictly is the
clause applied").
799
II
The plurality does not disagree with the proposition that the
State may not espouse a religious message.
Ante, at 765-766.
It concludes, however, that the State has not sent such a message;
it has merely allowed others to do so on its property. Thus, the
State has provided an "incidental benefit" to religion by allowing
private parties access to a traditional public forum. See
ante, at 765. In my judgment, neither precedent nor respect
for the values protected by the Establishment Clause justifies that
conclusion.
The Establishment Clause, "at the very least, prohibits
government from appearing to take a position on questions of
religious belief or from 'making adherence to a religion relevant
in any way to a person's standing in the political community.'''
County of Allegheny v.
American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573, 593-594
(1989), quoting
Lynch v.
Donnelly, 465 U. S. 668, 687 (1984)
(O'CONNOR, J., concurring). At least when religious symbols are
involved, the question whether the State is "appearing to take a
position" is best judged from the standpoint of a "reasonable
observer." 4 It is especially important to take account of the
perspective of a reasonable observer who may not share the
particular religious belief it expresses. A paramount purpose of
the Establishment Clause is to protect such a person from being
made to feel like an outsider in matters of faith, and a stranger
in the political community.
Ibid. If a reasonable person
could perceive a government endorsement of religion from a private
display, then the State may not allow its property to be used as a
forum for that display. No less stringent rule can ade-
4 In
Allegheny, five Justices found the likely reaction
of a "'reasonable observer' " relevant for purposes of determining
whether an endorsement was present. 492 U. S., at 620 (opinion of
Blackmun, J.); id., at 635-636 (opinion of O'CONNOR, J.); id., at
642-643 (opinion of Brennan, J., joined by Marshall and STEVENS,
JJ.).
800
STEVENS, J., dissenting
quately protect nonadherents from a well-grounded perception
that their sovereign supports a faith to which they do not
subscribe.5
In determining whether the State's maintenance of the Klan's
cross in front of the statehouse conveyed a forbidden message of
endorsement, we should be mindful of the power of a symbol standing
alone and unexplained. Even on private property, signs and symbols
are generally understood to express the owner's views. The location
of the sign is a significant component of the message it
conveys.
"Displaying a sign from one's own residence often carries a
message quite distinct from placing the same sign someplace else,
or conveying the same text or picture by other means. Precisely
because of their location, such signs provide information about the
identity of the 'speaker.' As an early and eminent student of
rhetoric observed, the identity of the speaker is an important
component of many attempts to persuade. A sign advo-
5 JUSTICE O'CONNOR agrees that an "endorsement test" is
appropriate and that we should judge endorsement from the
standpoint of a reasonable observer.
Ante, at 779. But her
reasonable observer is a legal fiction, "'a personification of a
community ideal of reasonable behavior, determined by the
[collective] social judgment.'''
Ante, at 780. The ideal
human JUSTICE O'CONNOR describes knows and understands much more
than meets the eye. Her "reasonable person" comes off as a
well-schooled jurist, a being finer than the tort-law model. With
respect, I think this enhanced tort-law standard is singularly out
of place in the Establishment Clause context. It strips of
constitutional protection every reasonable person whose knowledge
happens to fall below some "'ideal''' standard. Instead of
protecting only the "'ideal''' observer, then, I would extend
protection to the universe of reasonable persons and ask whether
some viewers of the religious display would be likely to perceive a
government endorsement.
JUSTICE O'CONNOR'S argument that "[t]here is always
someone" who will feel excluded by any particular
governmental action, ibid., ignores the requirement that such an
apprehension be objectively reasonable. A person who views an
exotic cow at the zoo as a symbol of the government's approval of
the Hindu religion cannot survive this test.
801
eating 'Peace in the Gulf' in the front lawn of a retired
general or decorated war veteran may provoke a different reaction
than the same sign in a 10-year-old child's bedroom window or the
same message on a bumper sticker of a passing automobile. An
espousal of socialism may carry different implications when
displayed on the grounds of a stately mansion than when pasted on a
factory wall or an ambulatory sandwich board." City of Ladue
v. Gilleo, 512
U. S. 43, 56-57 (1994) (footnote omitted).
Like other speakers, a person who places a sign on her own
property has the autonomy to choose the content of her own message.
Cf.
McIntyre v.
Ohio Elections Comm'n, 514 U. S. 334,341-342
(1995). Thus, the location of a stationary, unattended sign
generally is both a component of its message and an implicit
endorsement of that message by the party with the power to decide
whether it may be conveyed from that location.6
So it is with signs and symbols left to speak for themselves on
public property. The very fact that a sign is installed on public
property implies official recognition and reinforcement of its
message. That implication is especially strong when the sign stands
in front of the seat of the government itself. The "reasonable
observer" of any symbol placed unattended in front of any capitol
in the world will normally assume that the sovereign-which is not
only the owner of that parcel of real estate but also the lawgiver
for
6 I recognize there may be exceptions to this general rule. A
commercial message displayed on a billboard, for example, usually
will not be taken to represent the views of the billboard's owner
because every reasonable observer is aware that billboards are
rented as advertising space. On the other hand, the observer may
reasonably infer that the owner of the billboard is not inalterably
opposed to the message presented thereon; for the owner has the
right to exclude messages with which he disagrees, and he might be
expected to exercise that right if his disagreement is sufficiently
profound.
802
STEVENS, J., dissenting
the surrounding territory-has sponsored and facilitated its
message.
That the State may have granted a variety of groups permission
to engage in uncensored expressive activities in front of the
capitol building does not, in my opinion, qualify or contradict the
normal inference of endorsement that the reasonable observer would
draw from the unattended, freestanding sign or symbol. Indeed,
parades and demonstrations at or near the seat of government are
often exercises of the right of the people to petition their
government for a redress of grievances-exercises in which the
government is the recipient of the message rather than the
messenger. Even when a demonstration or parade is not directed
against government policy, but merely has made use of a
particularly visible forum in order to reach as wide an audience as
possible, there usually can be no mistake about the identity of the
messengers as persons other than the State. But when a statue or
some other freestanding, silent, unattended, immoveable
structure-regardless of its particular messageappears on the lawn
of the capitol building, the reasonable observer must identify the
State either as the messenger, or, at the very least, as one who
has endorsed the message. Contrast, in this light, the image of the
cross standing alone and unattended, see
infra, at 816, and
the image the observer would take away were a hooded Klansman
holding, or standing next to, the very same cross.
This Court has never held that a private party has a right to
place an unattended object in a public forum.7 Today the
7Despite the absence of any holding on this point, JUSTICE
O'CONNOR assumes that a reasonable observer would not impute the
content of an unattended display to the government because that
observer would know that the State is required to allow all such
displays on Capitol Square.
Ante, at 780-781. JUSTICE
O'CONNOR thus presumes a reasonable observer so prescient as to
understand legal doctrines that this Court has not yet adopted.
803
Court correctly recognizes that a State may impose a ban on all
private unattended displays in such a forum,
ante, at 761.
This is true despite the fact that our cases have condemned a
number of laws that foreclose an entire medium of expression, even
in places where free speech is otherwise allowed.8 The First
Amendment affords protection to a basic liberty: "the freedom of
speech" that an individual may exercise when using the public
streets and parks.
Hague v.
Committee for Industrial
Organization, 307
U. S. 496, 515-516 (1939) (opinion of Roberts, J.). The
Amendment, however, does not destroy all property rights. In
particular, it does not empower individuals to erect structures of
any kind on public property.
Members of City Council of Los
Angeles v.
Taxpayers for Vincent, 466 U. S. 789, 814
(1984); 9 see also
8 "Our prior decisions have voiced particular concern with laws
that foreclose an entire medium of expression. Thus, we have held
invalid ordinances that completely banned the distribution of
pamphlets within the municipality,
Lovell v.
Griffin,
303 U. S.
444,451-452 (1938); handbills on the public streets,
Jamison v.
Texas, 318 U. S. 413, 416
(1943); the door-todoor distribution of literature,
Martin
v.
Struthers, 319 U. S. 141, 145-149
(1943); Schneider v.
State, 308 U. S. 147, 164-165
(1939), and live entertainment,
Schad v.
Mount
Ephraim, 452 U. S.
61, 75-76 (1981). See also
Frisby v.
Schultz,
487 U. S. 474,486
(1988) (picketing focused upon individual residence is
'fundamentally different from more generally directed means of
communication that may not be completely banned in residential
areas'). Although prohibitions foreclosing entire media may be
completely free of content or viewpoint discrimination, the danger
they pose to the freedom of speech is readily apparent-by
eliminating a common means of speaking, such measures can suppress
too much speech."
City of Ladue v.
Gilleo, 512 U. S. 43, 55 (1994)
(footnote omitted).
9 In
Vincent, we stated:
"Appellees' reliance on the public forum doctrine is misplaced.
They fail to demonstrate the existence of a traditional right of
access respecting such items as utility poles for purposes of their
communication comparable to that recognized for public streets and
parks, and it is clear that 'the First Amendment does not guarantee
access to government property simply because it is owned or
controlled by the government.'
United States Postal Service
v.
Greenburgh Civic Assns., 453 U. S. 114, 129
804
STEVENS, J., dissenting
Clark v.
Community for Creative Non-Violence,
468 U. S. 288
(1984). Thus, our cases protecting the individual's freedom to
engage in communicative conduct on public property (whether by
speaking, parading, handbilling, waving a flag, or carrying a
banner),
e. g.,
Lovell v.
City of Griffin,
303 U. S. 444
(1938), or to send messages from her own property by placing a sign
in the window of her home,
City of Ladue v.
Gilleo,
512 U. S., at 58-59, do not establish the right to implant a
physical structure (whether a campaign poster, a burning cross, or
a statue of Elvis Presley) on public property. I think the latter
"right," which creates a far greater intrusion on government
property and interferes with the government's ability to
differentiate its own message from those of public individuals,
does not exist.10
Because structures on government property-and, in particular, in
front of buildings plainly identified with the State-imply state
approval of their message, the government must have considerable
leeway, outside of the religious arena, to choose what kinds of
displays it will allow and what kinds it will not. Although the
First Amendment requires the government to allow leafletting or
demonstrating outside its buildings, the State has greater power to
exclude unattended symbols when they convey a type of message with
which the State does not wish to be identified. I think it obvious,
for example, that Ohio could prohibit certain categories of signs
or symbols in Capitol Square-erotic exhibits, commercial
advertising, and perhaps campaign posters as
(1981). Rather, the 'existence of a right of access to public
property and the standard by which limitations upon such a right
must be evaluated differ depending on the character of the property
at issue.'
Perry Education Assn. v.
Perry Local
Educators' Assn., 460 U. S. 37, 44 (1983)."
466
10 At least, it does not exist as a general matter. I recognize
there may be cases of viewpoint discrimination (say, if the State
were to allow campaign signs supporting an incumbent governor but
not signs supporting his opponent) in which access cannot be
discriminatorily denied.
805
well-without violating the Free Speech Clause.ll Moreover, our
"public forum" cases do not foreclose public entities from
enforcing prohibitions against all unattended displays in public
parks, or possibly even limiting the use of such displays to the
communication of noncontroversial messages.12 Such a limitation
would not inhibit any of the traditional forms of expression that
have been given full constitutional protection in public fora.
The State's general power to restrict the types of unattended
displays does not alone suffice to decide this case, because Ohio
did not profess to be exercising any such authority. Instead, the
Capitol Square Review Board denied a permit for the cross because
it believed the Establishment Clause required as much, and we
cannot know whether the
11 The plurality incorrectly assumes that a decision to exclude
a category of speech from an inappropriate forum must rest on a
judgment about the value of that speech. See
ante, at
766-767. Yet, we have upheld the exclusion of all political signs
from public vehicles,
Lehman v.
Shaker Heights,
418 U. S. 298
(1974), though political expression is at the heart of the
protection afforded by the First Amendment.
McIntyre v.
Ohio Elections Comm'n, 514 U. S. 334, 346-347
(1995). A view that "private prayers,"
ante, at 767, are
most appropriate in private settings is neither novel nor
disrespectful to religious speech.
12 Several scholars have commented on the malleability of our
public forum precedents.
"As [an] overview of the cases strongly suggests, whether or not
a given place is deemed a 'public forum' is ordinarily less
significant than the nature of the speech restriction-despite the
Court's rhetoric. Indeed, even the rhetoric at times reveals as
much.
"Beyond confusing the issues, an excessive focus on the public
character of some forums, coupled with inadequate attention to the
precise details of the restrictions on expression, can leave speech
inadequately protected in some cases, while unduly hampering state
and local authorities in others." L. Tribe, American Constitutional
Law 992-993 (2d ed. 1988) (footnotes omitted).
See also Farber & Nowak, The Misleading Nature of Public
Forum Analysis: Content and Context in First Amendment
Adjudication, 70 Va. L. Rev. 1219, 1221-1222 (1984).
806
STEVENS, J., dissenting
Board would have denied the permit on other grounds. App. 91-92,
169. Accordingly, we must evaluate the State's rationale on its own
terms. But in this case, the endorsement inquiry under the
Establishment Clause follows from the State's power to exclude
unattended private displays from public property. Just as the
Constitution recognizes the State's interest in preventing its
property from being used as a conduit for ideas it does not wish to
give the appearance of ratifying, the Establishment Clause
prohibits government from allowing, and thus endorsing, unattended
displays that take a position on a religious issue. If the State
allows such stationary displays in front of its seat of government,
viewers will reasonably assume that it approves of them. As the
picture appended to this opinion demonstrates,
infra, at
816, a reasonable observer would likely infer endorsement from the
location of the cross erected by the Klan in this case. Even if the
disclaimer at the foot of the cross (which stated that the cross
was placed there by a private organization) were legible, that
inference would remain, because a property owner's decision to
allow a third party to place a sign on her property conveys the
same message of endorsement as if she had erected it herself.13
When the message is religious in character, it is a message the
State can neither send nor reinforce without violating the
Establishment Clause. Accordingly, I would hold that the
Constitution generally forbids the placement of a
13 Indeed, I do not think any disclaimer could dispel the
message of endorsement in this case. Capitol Square's location in
downtown Columbus, Ohio, makes it inevitable that countless
motorists and pedestrians would immediately perceive the proximity
of the cross to the capitol without necessarily noticing any
disclaimer of public sponsorship. The plurality thus correctly
abjures inquiry into the possible adequacy or significance of a
legend identifying the owner of the cross. See
ante, at 769,
n. 4. JUSTICE SOUTER is of the view that an adequate disclaimer is
constitutionally required,
ante, at 793-794, but he does not
suggest that the attachment to the Klan's cross in this case was
adequate.
807
symbol of a religious character in, on, or before a seat of
government.
III
The Court correctly acknowledges that the State's duty to avoid
a violation of the Establishment Clause can justify a content-based
restriction on speech or expression, even when that restriction
would otherwise be prohibited by the Free Speech Clause.
Ante, at 761-762;
ante, at 783 (opinion of O'CONNOR,
J.). The plurality asserts, however, that government cannot be
perceived to be endorsing a religious display when it merely
accords that display "the same access to a public forum that all
other displays enjoy."
Ante, at 764. I find this argument
unpersuasive.
The existence of a "public forum" in itself cannot dispel the
message of endorsement. A contrary argument would assume an
"ultrareasonable observer" who understands the vagaries of this
Court's First Amendment jurisprudence. I think it presumptuous to
consider such knowledge a precondition of Establishment Clause
protection. Many (probably most) reasonable people do not know the
difference between a "public forum," a "limited public forum," and
a "nonpublic forum." They
do know the difference between a
state capitol and a church. Reasonable people have differing
degrees of knowledge; that does not make them "'obtuse,'" see
30 F.3d
675, 679 (CA6 1994) (quoting
Doe v.
Small,
964 F.2d
611, 630 (CA7 1992) (Easterbrook, J., concurring)); nor does it
make them unworthy of constitutional protection. It merely makes
them human. For a religious display to violate the Establishment
Clause, I think it is enough that
some reasonable observers
would attribute a religious message to the State.
The plurality appears to rely on the history of this particular
public forum-specifically, it emphasizes that Ohio has in the past
allowed three other private unattended displays. Even if the State
could not reasonably have been understood to endorse the prior
displays, I would not find this argument
808
STEVENS, J., dissenting
convincing, because it assumes that all reasonable viewers know
all about the history of Capitol Square-a highly unlikely
supposition.14 But the plurality's argument fails on its own terms,
because each of the three previous displays conveyed the same
message of approval and endorsement that this one does.
Most significant, of course, is the menorah that stood in
Capitol Square during Chanukah. The display of that religious
symbol should be governed by the same rule as the display of the
cross.15 In my opinion, both displays are
14JUSTICE O'CONNOR apparently would not extend Establishment
Clause protection to passersby who are unaware of Capitol Square's
history. See
ante, at 780-782. Thus, she sees no reason to
distinguish an intimate knowledge of the square's history from the
knowledge that a cross is a religious symbol or that the statehouse
is the statehouse.
Ante, at 780-781. But passersby,
including schoolchildren, traveling salesmen, and tourists as much
as those who live next to the statehouse, are members of the body
politic, and they are equally entitled to be free from government
endorsement of religion.
15 A fragmented Court reached a different conclusion in
County of Allegheny v.
American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573 (1989). In
that case, a majority of this Court decided that a creche placed by
a private group inside a public building violated the Establishment
Clause, id., at 598-602, but that a menorah placed alongside a
Christmas tree and a "sign saluting liberty" outside that same
building did not.
Id., at 613-621 (opinion of Blackmun, J.);
id., at 632-637 (opinion of O'CONNOR, J.); id., at 663-667
(opinion of KENNEDY, J., joined by REHNQUIST, C. J., and White and
SCALIA, JJ.). The two Justices who provided the decisive votes to
distinguish these situations relied on the presence of the tree and
the sign to find that the menorah, in context, was not a religious,
but a secular, symbol of liberty.
Id., at 613-621 (opinion
of Blackmun, J.); id., at 632-637 (opinion of O'CONNOR, J.). It was
apparently in reliance on the outcome of the
Allegheny case
that Ohio believed it could provide a forum for the menorah (which
appeared in Capitol Square with a state-owned Christmas tree and a
banner reading, "Season's Greetings") and yet could not provide one
for the cross. See App. 169. Given the state of the law at the
time, Ohio's decision was hardly unreasonable; but I cannot support
a view of the Establishment Clause that permits a State effectively
to endorse some kinds of religious symbols but not others. I
809
equally objectionable. Moreover, the fact that the State has
placed its stamp of approval on two different religions instead of
one only compounds the constitutional violation. The Establishment
Clause does not merely prohibit the State from favoring one
religious sect over others. It also proscribes state action
supporting the establishment of a number of religions,16 as well as
the official endorsement of religion in preference to nonreligion.
Wallace v.
Jaffree, 472 U. S., at 52-55. The State's
prior approval of the proreligious message conveyed by the menorah
is fully consistent with its endorsement of one of the messages
conveyed by the cross: "The State of Ohio favors religion over
irreligion." This message is incompatible with the principles
embodied by our Establishment Clause.
The record identifies two other examples of freestanding
displays that the State previously permitted in Capitol Square: a
"United Way Campaign 'thermometer,'" and "craftsmen's booths and
displays erected during an Arts Festival." 17 App. to Pet. for
Cert. A16. Both of those examples confirm the proposition that a
reasonable observer should infer official approval of the message
conveyed by a structure erected in front of the statehouse. Surely
the thermometer suggested that the State was encouraging passersby
to contribute to the United Way. It seems equally clear that the
State was endorsing the creativity of artisans and craftsmen by
permitting their booths to occupy a part of the square. Nothing
about either of those freestanding displays contradicts the normal
inference that the State has endorsed whatever message might be
conveyed by permit-
would find that the State is powerless to place, or allow to be
placed, any religious symbol-including a menorah or a cross-in
front of its seat of government.
16 See
Allegheny, 492 U. S., at 647-649 (STEVENS, J.,
dissenting).
17The booths were attended during the festival itself, but were
left standing overnight during the pendency of the event. App.
159.
810
STEVENS, J., dissenting
ting an unattended symbol to adorn the capitol grounds.18
Accordingly, the fact that the menorah, and later the cross, stood
in an area available" 'for free discussion of public questions, or
for activities of a broad public purpose,'" Ohio Rev. Code Ann. §
105.41 (1994), quoted
ante, at 757, is fully consistent with
the conclusion that the State sponsored those religious symbols.
They, like the thermometer and the booths, were displayed in a
context that connotes state approval.
This case is therefore readily distinguishable from
Widmar v.
Vincent, 454 U. S. 263 (1981), and
Lamb's Chapel v.
Center Moriches Union Free School
Dist., 508 U. S.
384 (1993). In both of those cases, as we made perfectly clear,
there was no danger of incorrect identification of the speakers and
no basis for inferring that their messages had been endorsed by any
public entity. As we explained in the later case:
"Under these circumstances, as in Widmar, there would
have been no realistic danger that the community would think that
the District was endorsing religion or any particular creed, and
any benefit to religion or to the Church would have been no more
than incidental. As in Widmar, supra, at 271-272, permitting
District property to be used to exhibit the film involved in this
case would not have been an establishment of religion under the
three-part test articulated in Lemon v. Kurtzman,
403 U. S. 602
(1971): The challenged governmental action has a secular purpose,
does not have the principal or primary effect of advancing or
inhibiting religion, and does not foster an excessive entanglement
with religion." Id., at 395 (footnote omitted).
In contrast, the installation of the religious symbols in
Capitol Square quite obviously did "have the principal or
18 Of course, neither of these endorsements was religious in
nature, and thus neither was forbidden by the Constitution.
811
primary effect of advancing or inhibiting religion"; indeed, no
other effect is even suggested by the record. The primary
difference is that in this case we are dealing with a
visual
display-a symbol readily associated with a religion, in a venue
readily associated with the State. This clear image of endorsement
was lacking in
Widmar and
Lamb's Chapel, in which the
issue was access to government facilities. Moreover, there was no
question in those cases of an unattended display; private speakers,
who could be distinguished from the State, were present. See
supra, at 801802. Endorsement might still be present in an
access case if, for example, the religious group sought the use of
the roof of a public building for an obviously religious ceremony,
where many onlookers might witness that ceremony and connect it to
the State. But no such facts were alleged in
Widmar or
Lamb's Chapel. The religious practices in those cases were
simply less obtrusive, and less likely to send a message of
endorsement, than the eye-catching symbolism at issue in this
case.
The battle over the Klan cross underscores the power of such
symbolism. The menorah prompted the Klan to seek permission to
erect an antisemitic symbol, which in turn not only prompted
vandalism but also motivated other sects to seek permission to
place their own symbols in the square. These facts illustrate the
potential for insidious entanglement that flows from state-endorsed
proselytizing. There is no reason to believe that a menorah placed
in front of a synagogue would have motivated any reaction from the
Klan, or that a Klan cross placed on a Klansman's front lawn would
have produced the same reaction as one that enjoyed the apparent
imprimatur of the State of Ohio. Nor is there any reason to believe
the placement of the displays in Capitol Square had any purpose
other than to connect the Statethough perhaps against its will-to
the religious or antireligious beliefs of those who placed them
there. The cause of the conflict is the State's apparent approval
of a religious
812
STEVENS, J., dissenting
or antireligious message.19 Our Constitution wisely seeks to
minimize such strife by forbidding state-endorsed religious
activity.
IV
Conspicuously absent from the plurality's OpInIOn is any mention
of the values served by the Establishment Clause. It therefore
seems appropriate to repeat a portion of a Court opinion authored
by Justice Black who, more than any other Justice in the Court's
history, espoused a literal interpretation of constitutional
text:
"A large proportion of the early settlers of this country came
here from Europe to escape the bondage of laws which compelled them
to support and attend government-favored churches. The centuries
immedi-
19 As I stated in
Allegheny:
"There is always a risk that such symbols will offend nonmembers
of the faith being advertised as well as adherents who consider the
particular advertisement disrespectful. Some devout Christians
believe that the creche should be placed only in reverential
settings, such as a church or perhaps a private home; they do not
countenance its use as an aid to commercialization of Christ's
birthday. In this very suit, members of the Jewish faith firmly
opposed the use to which the menorah was put by the particular sect
that sponsored the display at Pittsburgh's City-County Building.
Even though '[p]assersby who disagree with the message conveyed by
these displays are free to ignore them, or even to turn their
backs,' displays of this kind inevitably have a greater tendency to
emphasize sincere and deeply felt differences among individuals
than to achieve an ecumenical goal. The Establishment Clause does
not allow public bodies to foment such disagreement." 492 U. S., at
650-651 (opinion concurring in part and dissenting in part)
(citations omitted), quoting id., at 664 (KENNEDY, J., concurring
in judgment in part and dissenting in part).
In the words of Clarence Darrow:
"'The realm of religion ... is where knowledge leaves off, and
where faith begins, and it never has needed the arm of the State
for support, and wherever it has received it, it has harmed both
the public and the religion that it would pretend to serve.''' Tr.
of Oral Arg. 7,
Scopes v.
State, 154 Tenn. 105, 289
S. W. 363 (1927), quoted in
Wolman v.
Walter,
433 U. S. 229,
264 (1977) (opinion of STEVENS, J.).
813
ately before and contemporaneous with the colonization of
America had been filled with turmoil, civil strife, and
persecutions, generated in large part by established sects
determined to maintain their absolute political and religious
supremacy. With the power of government supporting them, at various
times and places, Catholics had persecuted Protestants, Protestants
had persecuted Catholics, Protestant sects had persecuted other
Protestant sects, Catholics of one shade of belief had persecuted
Catholics of another shade of belief, and all of these had from
time to time persecuted Jews. In efforts to force loyalty to
whatever religious group happened to be on top and in league with
the government of a particular time and place, men and women had
been fined, cast in jail, cruelly tortured, and killed. Among the
offenses for which these punishments had been inflicted were such
things as speaking disrespectfully of the views of ministers of
government-established churches, non-attendance at those churches,
expressions of non-belief in their doctrines, and failure to pay
taxes and tithes to support them.
"These practices of the old world were transplanted to and began
to thrive in the soil of the new America. The very charters granted
by the English Crown to the individuals and companies designated to
make the laws which would control the destinies of the colonials
authorized these individuals and companies to erect religious
establishments which all, whether believers or nonbelievers, would
be required to support and attend. An exercise of this authority
was accompanied by a repetition of many of the old-world practices
and persecutions. Catholics found themselves hounded and proscribed
because of their faith; Quakers who followed their conscience went
to jail; Baptists were peculiarly obnoxious to certain dominant
Protestant sects; men and women of varied faiths who happened to be
in a
814
STEVENS, J., dissenting
minority in a particular locality were persecuted because they
steadfastly persisted in worshipping God only as their own
consciences dictated. And all of these dissenters were compelled to
pay tithes and taxes to support government-sponsored churches whose
ministers preached inflammatory sermons designed to strengthen and
consolidate the established faith by generating a burning hatred
against dissenters.
"The 'establishment of religion' clause of the First Amendment
means at least this: Neither a state nor the Federal Government can
set up a church. Neither can pass laws which aid one religion, aid
all religions, or prefer one religion over another. Neither can
force nor influence a person to go to or to remain away from church
against his will or force him to profess a belief or disbelief in
any religion .... Neither a state nor the Federal Government can,
openly or secretly, participate in the affairs of any religious
organizations or groups and vice versa. In the words of
Jefferson, the clause against establishment of religion by law was
intended to erect 'a wall of separation between church and State.'"
Everson v. Board of Ed. of Ewing, 330 U. S. 1,8-10, 15, 16
(1947) (footnotes and citation omitted).
In his eloquent dissent in that same case, Justice Jackson
succinctly explained-
"that the effect of the religious freedom Amendment to our
Constitution was to take every form of propagation of religion out
of the realm of things which could directly or indirectly be made
public business .... It was intended not only to keep the states'
hands out of religion, but to keep religion's hands off the state,
and, above all, to keep bitter religious controversy out of public
life
" Id., at 26-27.
815
The wrestling over the Klan cross in Capitol Square is far
removed from the persecution that motivated William Penn to set
sail for America, and the issue resolved in
Everson is quite
different from the controversy over symbols that gave rise to this
litigation.20 Nevertheless, the views expressed by both the
majority and the dissenters in that landmark case counsel caution
before approving the order of a federal judge commanding a State to
authorize the placement of freestanding religious symbols in front
of the seat of its government. The Court's decision today is
unprecedented. It entangles two sovereigns in the propagation of
religion, and it disserves the principle of tolerance that
underlies the prohibition against state action "respecting an
establishment of religion." 21
I respectfully dissent.
[Appendix to opinion of STEVENS, J., follows this page.]
20 Everson v.
Board of Ed. of Ewing, 330 U. S. 1 (1947), held
that a school district could, as part of a larger program of
reimbursing students for their transportation to and from school,
also reimburse students attending Catholic schools.
21 The words "respecting an establishment of religion" were
selected to emphasize the breadth and richer meaning of this
fundamental command. See
Allegheny, 492 U. S., at 647-649
(STEVENS, J., dissenting).
816
Appendix to opinion of STEVENS, J.
APPENDIX TO OPINION OF STEVENS, J.
817
JUSTICE GINSBURG, dissenting.
We confront here, as JUSTICES O'CONNOR and SOUTER point out, a
large Latin cross that stood alone and unattended in close
proximity to Ohio's Statehouse. See
ante, at 776 (O'CONNOR,
J., concurring in part and concurring in judgment);
ante, at
792-793 (SOUTER, J., concurring in part and concurring in
judgment). Near the stationary cross were the government's flags
and the government's statues. No human speaker was present to
disassociate the religious symbol from the State. No other private
display was in sight. No plainly visible sign informed the public
that the cross belonged to the Klan and that Ohio's government did
not endorse the display's message.
If the aim of the Establishment Clause is genuinely to uncouple
government from church, see
Everson v.
Board of Ed. of
Ewing, 330 U. S.
1, 16 (1947), a State may not permit, and a court may not
order, a display of this character. Cf. Sullivan, Religion and
Liberal Democracy, 59 U. Chi. L. Rev. 195, 197-214 (1992) (negative
bar against establishment of religion implies affirmative
establishment of secular public order). JUSTICE SOUTER, in the
final paragraphs of his opinion, suggests two arrangements that
might have distanced the State from "the principal symbol of
Christianity around the world," see
ante, at 792: a
sufficiently large and clear disclaimer,
ante, at 793-794;
lor an area reserved for un-
1 Cf.
American Civil Liberties Union v.
Wilkinson,
895 F.2d
1098, 1101, n. 2, 1106 (CA6 1990) (approving disclaimer ordered
by District Court, which had to be "'prominently displayed
immediately in front of'" the religious symbol and "'readable from
an automobile passing on the street directly in front of the
structure'''; the approved sign read: "'This display was not
constructed with public funds and does not constitute an
endorsement by the Commonwealth [of Kentucky] of any religion or
religious doctrine.''') (quoting District Court);
McCreary
v.
Stone, 739 F.2d
716, 728 (CA2 1984) (disclaimers must meet requirements of
size, visibility, and message; disclaimer at issue was too small),
aff'd,
471 U. S.
83 (1985) (per
curiam); Parish, Private Religious
Displays in Public Fora, 61 U. Chi. L. Rev. 253, 285-286 (1994)
(disclaimer must not only identify the sponsor, it
818
GINSBURG, J., dissenting
attended displays carrying no endorsement from the State, a
space plainly and permanently so marked,
ante, at 794. N
either arrangement is even arguably present in this case. The
District Court's order did not mandate a disclaimer. See App. to
Pet. for Cert. A26 ("Plaintiffs are entitled to an injunction
requiring the defendants to issue a permit to erect a cross on
Capitol Square"). And the disclaimer the Klan appended to the foot
of the cross 2 was unsturdy: It did not identify the Klan as
sponsor; it failed to state unequivocally that Ohio did not endorse
the display's message; and it was not shown to be legible from a
distance. The relief ordered by the District Court thus violated
the Establishment Clause.
Whether a court order allowing display of a cross, but demanding
a sturdier disclaimer, could withstand Establishment Clause
analysis is a question more difficult than the one this case poses.
I would reserve that question for another day and case. But I would
not let the prospect of what might have been permissible control
today's decision on the constitutionality of the display the
District Court's order in fact authorized. See
ante, at 816
(appendix to dissent of STEVENS, J.) (photograph of display).
must say "in no uncertain language" that the government's permit
"in no way connotes [government] endorsement of the display's
message"; the "disclaimer's adequacy should be measured by its
visibility to the average person viewing the religious
display").
2 The disclaimer stated: "'[T]his cross was erected by private
individuals without government support for the purpose of
expressing respect for the holiday season and to assert the right
of all religious views to be expressed on an equal basis on public
property.''' See App. to Pet. for Cert. AI5-AI6.
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