Capitol Square Review and Advisory Bd. v. Pinette - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the court in number 94-780, Capitol Square Review and Advisory Board v. Pinette will be announced by Justice Scalia.

Argument of Justice Scalia

Mr. Scalia: This case comes here on writ of certiorari in United States Court of Appeals for the Sixth Circuit.

Capitol square is a ten acre plaza surrounding the State Capitol in Columbus, Ohio.

It is a traditional public forum that for over a century has been used for public speeches, gatherings and celebrations, both secular and religious.

State Law gives an agency called the Capitol Square Review and Advisory Board, the petitioner in this case, responsibility for regulating use of this square.

In recent years such diverse groups as homosexual rights organization, the Ku Klux Klan and the United Way have held rallies in the square.

The Board has also permitted a variety of unattended displays, a state-sponsored lighted tree during the Christmas season, for example, a privately sponsored menorah during Chanukah, a display showing the progress of the United Way campaign and booths and exhibits during an arts festival.

In November 1993, the Board received an application from the Ohio, Ku Klax Klan to place across on the Square during the Christmas season.

It denied that application on the ground that permitting the display would violate the establishment clause of the constitution.

The Ohio Klan through its leader Vincent Pinette, who is the respondent here, filed the present 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 District Court granted that injunction and the United States Court of Appeals for the Sixth Circuit affirmed.

We granted the State’s petition for certiorari and we now affirm the judgment of the Sixth Circuit.

Private religious speech is as fully protected under the Free Speech Clause as private secular expression.

In a traditional or a designated public forum like capitol square, a state may regulate expressive content and religious content is at issue here, only if such a restriction is necessary and narrowly drawn to serve a compelling state interest.

Petitioners assert only one justification for closing Capitol Square to respondent’s cross, namely the state’s compelling interest in avoiding official endorsement of Christianity, as required by the Establishment Clause.

We find that interest not to be implicated here.

Twice previously in cases called Lamb's Chapel, v. Center Moriches School District and Widmar v. Vincent, we have addressed the combination of private religious expression, a forum available for public use and the state’s interest in complying with the establishment clause.

Both times, we struck down the attempted discriminatory exclusion of private religious speech.

Petitioners tried to distinguish those cases by arguing the Capitol Squares’ proximity to the seat of government, may produce the perception that the cross bears the State’s approval.

They urges to apply the endorsement test used by some of our recent decision and to find that because an observer seeing across with the State Capitol behind it, might mistake private expression for officially endorsed religious expression, the State’s content based restriction of religious speech is constitutional.

Seven of the Justices reject that conclusion, four because the endorsement test is not applicable and three because there has been no endorsement.

The reminder of my summation refers to the four Justice plurality opinion in which is I am joined by the Chief Justice, Justice Kennedy and Justice Thomas, holding that the so called endorsement test does not apply.

The cases which support the existence of an endorsement test in our Establishment Clause jurisprudence, involved either religious expression by the government itself, as in Lynch v. Donnelly which involved a crèche erected by a municipality or they involved government action that allegedly discriminated in favor of private religious expression as in Allegheny County v. ACLU, which involved preferential placement of a privately constructed crèche on county property.

This case involves neither government speech nor government favoring of certain private speech or is it an issue of purely private expression occurring in a public forum open to all speakers on equal terms.

We have consistently held that it is no violation for government to enact neutral policies that happen to benefit religion.

Here the only action by the state is the maintenance of Capitol Square as a public forum with a neutral access policy.

The test petitioner has proposed, would appropriately be called not an endorsement, but a transferred endorsement test, attributing to a neutrally behaving government, private religious expression, simply because some people might mistake it for sectarian government expression.

Such a test has no antecedent in our jurisprudence and would work considerable mischief by forcing public officials to guess about the constitutionality of every proposed active private religious expression in a public forum.

Moreover since the principal of transformed endorsement cannot be limited to public forum cases, it would also permit challenges to perfectly neutral grand programs for example, where participation of religious groups or entities might create the appearance, though there is no reality of endorsement.

If the State guesses wrong in one direction, it is guilty of an Establishment Clause violation.

If in the other, it is liable for suppressing free exercise or free speech a risk not run when the State restrains only its own expression and not private expression, it would be irresponsible to make to make the nation’s legislatures walk such a minefield.

If Ohio is concerned about misperceptions, nothing prevents it from requiring all private displays in the square to be identified as such, 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.

The plurality thus concludes that religious expression cannot violate the establishment clause, where one, it is purely private and two, it 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 respondent’s cross from Capitol Square.

Justice Thomas who is one of the plurality has also filed a separate concurring opinion.

Justice O’Connor has filed an opinion concurring in part and concurring in the judgment in which Justices Souter and Breyer joined.

Justice Souter has filed an opinion concurring in part and concurring in the judgment in which Justices O’Connor and Breyer joined.

Justice Stevens has filed a dissenting opinion and Justice Ginsberg has filed a dissenting opinion.