Capitol Square Review and Advisory Board v. Pinette
515 U.S. 753 (1995)
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Rule of Law:
A state does not violate the Establishment Clause when it permits a private party to display an unattended religious symbol in a traditional public forum that is open to all on equal terms.
Facts:
- Capitol Square is a 10-acre, state-owned plaza surrounding the Ohio statehouse, which has long been used as a traditional public forum for speeches and gatherings by diverse groups.
- The Capitol Square Review and Advisory Board (Board) makes the square available to the public for free discussion and activities, using content-neutral criteria related to safety and noninterference.
- The Board had previously permitted various unattended displays, including a state-sponsored Christmas tree and a privately sponsored menorah during Chanukah.
- In November 1993, Donnie Carr, an officer of the Ohio Ku Klux Klan, submitted an application to place a Latin cross on the square during the holiday season.
- The Board denied the Klan's application, stating the denial was based on counsel's advice to comply with the U.S. and Ohio Constitutions' Establishment Clauses.
Procedural Posture:
- The Ohio Ku Klux Klan, through its leader Vincent Pinette, filed suit against the Capitol Square Review and Advisory Board in the U.S. District Court for the Southern District of Ohio.
- The Klan sought an injunction requiring the Board to issue the permit to erect a cross.
- The District Court, a trial court, found for the Klan and issued the injunction.
- The Board, as appellant, appealed the decision to the U.S. Court of Appeals for the Sixth Circuit.
- The Sixth Circuit, an intermediate appellate court, affirmed the District Court's judgment in favor of Pinette (the appellee).
- The U.S. Supreme Court granted certiorari to review the case.
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Issue:
Does a state violate the Establishment Clause when, pursuant to a religiously neutral policy, it permits a private party to display an unattended religious symbol in a traditional public forum located next to its seat of government?
Opinions:
Majority - Justice Scalia
No. Permitting a private religious display in a traditional public forum on equal terms with other private displays does not constitute a state endorsement of religion and thus does not violate the Establishment Clause. Private religious speech is fully protected by the Free Speech Clause, and when it occurs in a public forum, the government may only impose content-based restrictions to serve a compelling state interest. While compliance with the Establishment Clause is a compelling interest, it is not implicated here because there is a crucial distinction between government speech endorsing religion, which is forbidden, and private speech endorsing religion, which is protected. The display of a private religious symbol in a forum that is genuinely open to all on equal terms is private speech, and any benefit to religion is incidental and does not confer a state imprimatur of approval. To attribute private speech to the government in this context would create a novel 'transferred endorsement' test that is unsupported by precedent.
Concurring - Justice O'Connor
No. While the plurality is correct in its judgment, it is wrong to carve out an exception to the endorsement test for public forums. The endorsement test is the correct legal standard, which asks whether a 'reasonable, informed observer' would perceive the government's action as an endorsement of religion. This observer must be deemed aware of the history and context of the forum. In this case, an observer aware that Capitol Square is a traditional public forum for a wide variety of private speakers would not perceive the State's permission for the cross as an endorsement of its message, especially if the display includes a disclaimer.
Concurring - Justice Souter
No. The plurality's per se rule is incorrect; the endorsement test must be applied to private religious speech in a public forum because an intelligent observer could reasonably mistake an unattended display for government-endorsed speech. However, the Board's flat denial of the permit was not a narrowly tailored means of avoiding a potential Establishment Clause violation. The Board could have, and should have, considered less restrictive alternatives, such as requiring a sufficiently large and clear disclaimer on the cross or instituting a policy of restricting all private displays to a specially marked area.
Concurring - Justice Thomas
No. I concur in the judgment but write to note that the KKK's use of a cross is a political act, not a purely religious one. The Klan has appropriated a sacred religious symbol as a symbol of hate and white supremacy. Therefore, this case may not have truly involved the Establishment Clause, but because it was presented as such, the Court's disposition is correct.
Dissenting - Justice Stevens
Yes. Allowing the display violates the Establishment Clause. There should be a strong presumption against the installation of unattended religious symbols on public property, particularly at the seat of government. The very location of a freestanding, silent symbol in front of the state capitol implies official recognition and endorsement of its message, regardless of the forum's history of public use. A reasonable observer, unfamiliar with the nuances of public forum doctrine, would naturally assume the sovereign has sponsored the message, making nonadherents feel like outsiders in the political community. A small disclaimer cannot overcome this powerful message of state endorsement.
Dissenting - Justice Ginsburg
Yes. The display violates the Establishment Clause because a large, unattended Latin cross stood alone in close proximity to the Statehouse, with no other private displays and no plainly visible sign to disassociate the religious symbol from the State. A state genuinely aiming to uncouple government from church may not permit a display of this character. While a sturdier, clearer disclaimer or a specially designated area for private displays might have changed the constitutional analysis, neither was present in the display the court's order authorized.
Analysis:
This case clarifies the interaction between the Free Speech and Establishment Clauses concerning private religious displays in public forums. The holding prevents the government from using the Establishment Clause as a justification for viewpoint discrimination against religious speech in such forums. However, the fractured opinions leave the governing standard unsettled. While a plurality advocated for a bright-line rule exempting such displays from the endorsement test, the controlling concurrences of O'Connor and Souter establish that the endorsement test does apply. This controlling standard requires courts to assess whether a 'reasonable, informed' observer, aware of the forum's context and history, would perceive state endorsement, effectively making context and the availability of disclaimers key factors in future cases.
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