Capitol Sq. Review Bd. v. Pinette (1995)
Supreme Court Decisions on Religious Liberty
Ohio law makes Capitol Square, the Statehouse plaza in Columbus, a forum for public activities and for discussion of public questions, and gives the Capitol Square Review and Advisory 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 speech-neutral criteria. After the Board denied, on Establishment Clause grounds, the application of the Ku Klux Klan to place an unattended cross on the square during the 1993 Christmas season, the Klan filed suit.
The Court decided 7-2 that the actions of the Board were inappropriate and that the application of the KKK should have been accepted. According to the majority, the cross should be permitted because it is erected by a private entity rather than by the government, and so a reasonable observer would not infer that the government was endorsing the cross' message.
According to the Court, religious expression cannot violate the Establishment Clause when 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 were satisfied in this case, and therefore the government was not allowed to bar the Klan's cross. The Court did, however, accept that the government take extra steps to ensure that particular speech was identified as private - for example, by prohibiting unattended displays completely.
Justice Stevens rejected the arguments of the majority, pointing out the purely sectarian displays should never be acceptable actions for the government to endorse on public property:
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.
He emphasized the fact that the symbol of the cross, unadorned and unattended, sends a wide variety of possible religious messages to people passing by - and that the government is not permitted to send such messages at all.
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.
Quoting the decision in City of Ladue v. Gilleo, Stevens also emphasized the fact that the location of as sign or symbol is a vital component of the message it conveys, and that therefore the fact that the cross was erected on public property and stands unattended is important.
"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 advocating `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."
Because of this, Stevens concluded that unattended structures on government property give reasonable observers the impression that the messages are endorsed by the government. What this means is that the government must not only have considerable leeway in deciding what sort of structures may be erected, but that the government is required to forbid structures sending messages which the government itself is prohibited from sending.
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.
Stevens supported his argument by pointing out that the Klan's application had been motivated by the earlier appearance of a large, unattended menorah during Chanukah. The appearance of this Jewish symbol gave the reasonable impression of government endorsement, and so the Klan sought similar endorsement of their own anti-semitic symbol. Had the symbols appeared on private property, the same reactions would not have occurred. One of the purposes of the Establishment Clause it to prevent exactly this - the government getting involved in religious strife.
The holding in this decision allows for unattended religious displays to be erected on public property, but more significantly makes the "reasonable observer" test very lax. There seems to be little that they would expect a "reasonable observer" to interpret as government endorsement of religion.-->