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.
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 form and meet several criteria, which concern primarily safety, sanitation, and noninterference with other uses of the square, and which are neutral as to the speech content of the proposed event.
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." 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."
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 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 Board defended on the ground that the permit would violate the Establishment Clause....
First, a preliminary matter: Respondents contend that we should treat this as a case in which freedom of speech (the Klan'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 suggest in their merits brief and in their oral argument that Ohio's genuine reason for disallowing the display was disapproval of the political views of the Ku Klux Klan. Whatever the fact may be, the case was not presented and decided that way. The record facts before us and the opinions below address only the Establishment Clause issue; that is the question upon which we granted certiorari; and that is the sole question before us to decide.
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. Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince. Accordingly, we have not excluded from free-speech protections religious proselytizing, or even acts of worship. Petitioners do not dispute that respondents, in displaying their cross, were engaging in constitutionally protected expression. They do contend that the constitutional protection does not extend to the length of permitting that expression to be made on Capitol Square.
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. The right to use government property for one's private expression depends upon whether the property has by law or tradition been given the status of a public forum, or rather has been reserved for specific official uses. If the former, a State's right to limit protected expressive activity is sharply circumscribed: It may impose reasonable, content-neutral time, place, and manner restrictions (a ban on all unattended displays, which did not exist here, might be one such), but it may regulate expressive content only if such a restriction is necessary, and narrowly drawn, to serve a compelling state interest. These strict standards apply here, since the District Court and the Court of Appeals found that Capitol Square was a traditional public forum.
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.
There is no doubt that compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based restrictions on speech. Whether that interest is implicated here, however, is a different question. And we do not write on a blank slate in answering it. We have twice previously addressed the combination of private religious expression, a forum available for public use, content-based regulation, and a State's interest in complying with the Establishment Clause. Both times, we have struck down the restriction on religious content.
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. We rejected the district's compelling-state-interest Establishment Clause defense (the same made here) because the school property was open to a wide variety of uses, the district was not directly sponsoring the religious group's activity, and "any benefit to religion or to the Church would have been no more than incidental." The Lamb's Chapel reasoning applies a fortiori here, where the property at issue is not a school but a full-fledged public forum.
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. And there also the State claimed that its compelling interest in complying with the Establishment Clause justified the content-based restriction. We rejected the defense because the forum created by the State was open to a broad spectrum of groups and would provide only incidental benefit to religion. We stated categorically that "an open forum in a public university does not confer any imprimatur of state approval on religious sects or practices."
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.
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," and to find that, because an observer might mistake private expression for officially endorsed religious expression, the State's content-based restriction is constitutional.
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. Our cases have accordingly equated "endorsement" with "promotion" or "favoritism." We find it peculiar to say that government "promotes" or "favors" a religious display by giving it the same access to a public forum that all other displays enjoy. And as a matter of Establishment Clause jurisprudence, we have consistently held that it is no violation for government to enact neutral policies that happen to benefit religion. Where we have tested for endorsement of religion, the subject of the test was either expression by the government itself, or else government action alleged to discriminate in favor of private religious expression or activity. The test petitioners propose, which would attribute to a neutrally behaving government private religious expression, has no antecedent in our jurisprudence, and would better be called a "transferred endorsement" test.
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. We expressly distinguished that site from the kind of public forum at issue here, and made clear that if the staircase were available to all on the same terms, "the presence of the creche in that location for over six weeks would then not serve to associate the government with the creche." In Lynch we held that a city's display of a creche did not violate the Establishment Clause because, in context, the display did not endorse religion. The opinion does assume, as petitioners contend, that the government's use of religious symbols is unconstitutional if it effectively endorses sectarian religious belief. But the case neither holds nor even remotely assumes that the government's neutral treatment of private religious expression can be unconstitutional.
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." But that conclusion was not the result of empirical investigation; it followed directly, we thought, from the fact that the forum was open and the religious activity privately sponsored. It is significant that we referred only to what would be thought by "the community"--not by outsiders or individual members of the community uninformed about the school's practice. Surely some of the latter, hearing of religious ceremonies on school premises, and not knowing of the premises' availability and use for all sorts of other private activities, might leap to the erroneous conclusion of state endorsement. But, we in effect said, given an open forum and private sponsorship, erroneous conclusions do not count. So also in Widmar. Once we determined that the benefit to religious groups from the public forum was incidental and shared by other groups, we categorically rejected the State's Establishment Clause defense.
What distinguishes Allegheny and the dictum in Lynch from Widmar and Lamb's Chapel is the difference between government speech and private speech. Petitioners assert, in effect, that that distinction disappears when the private speech is conducted too close to the symbols of government. But that, of course, must be merely a subpart of a more general principle: that the distinction disappears whenever private speech can be mistaken for government speech. That proposition cannot be accepted, at least where, as here, the government has not fostered or encouraged the mistake.
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....
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." Whether it does would henceforth depend upon immediate appearances. Policymakers would find themselves in a vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other. Every proposed act of private, religious expression in a public forum would force officials to weigh a host of imponderables. How close to government is too close? What kind of building, and in what context, symbolizes state authority? If the State guessed wrong in one direction, it would be guilty of an Establishment Clause violation; if in the other, it would be liable for suppressing free exercise or free speech (a risk not run when the State restrains only its own expression)....
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.
JUSTICE THOMAS, concurring.
I join the Court's conclusion that petitioner's 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....
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 before us. In the end, there may be much less here than meets the eye.
JUSTICE SOUTER, with whom JUSTICE O'CONNOR and JUSTICE BREYER join, concurring in part and concurring in 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....
JUSTICE STEVENS, 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.
At issue in 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. Some observers, unaware of who had sponsored the cross, or unfamiliar with the history of the Klan and its reaction to the menorah, might interpret the Klan's cross as an inspirational symbol of the crucifixion and resurrection of Jesus Christ. More knowledgeable observers might regard it, given the context, as an antisemitic symbol of bigotry and disrespect for a particular religious sect. Under the first interpretation, the cross is plainly a religious symbol. Under the second, an icon of intolerance expressing an anticlerical message should also be treated as a religious symbol because the Establishment Clause must prohibit official sponsorship of irreligious as well as religious messages. This principle is no less binding if the antireligious message is also a bigoted message.
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. 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. 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.'" At least when religious symbols are involved, the question of whether the State is "appearing to take a position" is best judged from the standpoint of a "reasonable observer." It is especially important to take account of the perspective of a reasonable observer who may not share the particular religious belief it expresses. A paramount purpose of the Establishment Clause is to protect such a person from being made to feel like an outsider in matters of faith, and a stranger in the political community. If a reasonable person could perceive a government endorsement of religion from a private display, then the State may not allow its property to be used as a forum for that display. No less stringent rule can adequately protect nonadherents from a well-grounded perception that their sovereign supports a faith to which they do not subscribe....
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 free-standing, 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, and the image the observer would take away were a hooded Klansman holding, or standing next to, the very same cross....
JUSTICE GINSBURG, 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. 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, a State may not permit, and a court may not order, a display of this character. JUSTICE SOUTER, in the final paragraphs of his opinion, suggests two arrangements that might have distanced the State from "the principal symbol of Christianity around the world" : a sufficiently large and clear disclaimer, or an area reserved for unattended displays carrying no endorsement from the State, a space plainly and permanently so marked. Neither arrangement is even arguably present in this case....
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.