Lead Opinion
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. §128-4-02(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
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.
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
On appeal by the Board, the United States Court of Appeals for the Sixth Circuit affirmed the District Court’s judgment.
II
First, a preliminary matter: Respondents contend that we should treat this as a case in which freedom of speech (the Elan’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
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.,
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.,
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.
Ill
There is no doubt that compliance with the Establishment Clause is a state interest sufficiently compelling to justify
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.
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.
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,
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
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.
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,”
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,
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
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,
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,
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.
Notes
Respondents claim that the Sixth Circuit’s statement that “[zjealots 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.”
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.”
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 100%?) — 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
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.
Concurrence Opinion
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
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
Concurrence Opinion
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,
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.,
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,
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 777-778. 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,
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,
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. § 128-4-02(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
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 ease, 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
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,
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,
M HH
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.”
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 sweeping] 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 political life 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
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.”
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.,
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,
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,
I agree that “compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based 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.
Concurrence Opinion
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 capítol 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
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.
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,
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,
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... discriminating] 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, 635-636 (O’Connor, J., concurring in part and concurring in judgment); Witters v. Washington Dept. of Servs. for Blind,
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,
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 irrebut-table presumption, as the plurality does today, but by making a contextual judgment taking account of the circum
Similarly, in Lamb’s Chapel v. Center Moriches Union Free School Dist.,
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
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 “manipulate]” 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
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.
Ill
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;
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 flat 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.,
With such alternatives available, the Board cannot claim that its flat 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.
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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
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,
Dissenting Opinion
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.
I
At issue m 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.
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.
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,
In determining whether the State’s maintenance of the Elan’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-*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,
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 capítol 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
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 message— appears 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.
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
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
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
Ill
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
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
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.
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.”
This case is therefore readily distinguishable from Widmar v. Vincent,
“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
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 State— though perhaps against its will — to the religious or anti-religious beliefs of those who placed them there. The cause of the conflict is the State’s apparent approval of a religious
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*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 seets 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 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.
I respectfully dissent.
[Appendix to opinion of Stevens, J., follows this page.]
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See Reynolds v. United States,
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.
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,
In Allegheny, five Justices found the likely reaction of a “ ‘reasonable observer’ ” relevant for purposes of determining whether an endorsement was present.
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.
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 rea- . sonable 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.
Despite 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.
“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,
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 (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 U. S., at 814 .
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.
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,
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).
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 capítol 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 Soutee 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.
“Justice 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.
A fragmented Court reached a different conclusion in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter,
See Allegheny,
The booths were attended during the festival itself, but were left standing overnight during the pendency of the event. App. 159.
Of course, neither of these endorsements was religious in nature, and thus neither was forbidden by the Constitution.
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 créche 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 ‘[pjassersby 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.).
Everson v. Board of Ed. of Ewing,
The words “respecting an establishment of religion” were selected to emphasize the breadth and richer meaning of this fundamental command. See Allegheny,
Dissenting Opinion
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,
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).
Cf. American Civil Liberties Union v. Wilkinson,
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. A15-A16.