Capitol Square Review and Advisory Bd. v. Pinette,
515 U.S. 753 (1995)

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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,



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.

Full Text of Opinion

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