CAPITOL SQUARE REVIEW AND ADVISORY BOARD, et al., Petitioners
        v.
VINCENT J. PINETTE, DONNIE A. CARR and KNIGHTS OF THE KU KLUX KLAN

No. 94-780
In the Supreme Court of the United States
On writ of certiorari to the United States Court of Appeals for
the Sixth Circuit. 30 F.3d 675, affirmed.
Scalia, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, and III, in
which Rehnquist, C.J., and O'Connor, Kennedy, Souter, Thomas, and
Breyer, JJ., joined, and an opinion with respect to Part IV, in
which Rehnquist, C.J., and Kennedy and Thomas, JJ., joined.
Thomas, J., filed a concurring opinion. O'Connor, J., filed an
opinion concurring in part and concurring in the judgment, in
which Souter and Breyer, JJ., joined. Souter, J., filed an opinion
concurring in part and concurring in the judgment, in which
O'Connor and Breyer, JJ., joined. Stevens, J., and Ginsburg, J.,
filed dissenting opinions.
Argued April 26, 1995
Decided June 29, 1995

:::::::::::::::::::::::::::::::::: SYLLABUS

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 responsibility for regulating access to the square.
To use the square, a group must simply fill out an official
application form and meet several speech-neutral criteria. After
the Board denied, on Establishment Clause grounds, the application
of 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. P. 4.

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. ___. 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. 4-6.


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
___, 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 ___,
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. 6-7.


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.,
Allegheny County 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 County,
supra. The difference between forbidden government speech
endorsing religion and protected private speech that does so is
what distinguishes Allegheny County 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 ___, 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. 7-14.


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. 1-13.


(a) The endorsement test supplies an appropriate standard for
determining whether governmental practices relating to speech on
religious topics violate the Establishment Clause, even where a
neutral state policy toward private religious speech in a public
forum is at issue. Cf., e.g., Lamb's Chapel v. Center Moriches
Union Free School Dist., 508 U.S. ___, ___. There is no necessity
to carve out, as does the plurality opinion, an exception to the
test for the public forum context. Pp. 2-8.


(b) On the facts of this case, the reasonable observer would not
fairly interpret the State's tolerance of the Klan's religious
display as an endorsement of religion. See, e.g., Lamb's Chapel,
supra, at ___. In this context, the "reasonable observer" is the
personification of a community ideal of reasonable behavior,
determined by the collective social judgment, whose knowledge is
not limited to information gleaned from viewing the challenged
display, but extends to the general history of the place in which
the display appears. In this case, therefore, such an observer may
properly be held, not simply to knowledge that the cross is purely
a religious symbol, that Capitol Square is owned by the State, and
that the seat of state government is nearby, but also to an
awareness that the square is a public space in which a
multiplicity of secular and religious groups engage in expressive
conduct, as well as to an ability to read and understand the
disclaimer that the Klan offered to include in its display. Pp.
8-12.


Justice Souter, joined by Justice O'Connor and Justice Breyer,
concluded that, given the available alternatives, the Board cannot
claim that its denial of the Klan's application was a narrowly
tailored response necessary to ensure that the State did not
appear to take a position on questions of religious belief. Pp.
1-13.


(a) The plurality's per se rule would be an exception to the
endorsement test, not previously recognized and out of square with
this Court's precedents. As the plurality admits, there are some
circumstances in which an intelligent observer would reasonably
perceive private religious expression in a public forum to imply
the government's endorsement of religion. Such perceptions should
be attributed to the reasonable observer of Establishment Clause
analysis under the Court's decisions, see, e.g., Allegheny County
v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492
U.S. 573, 630, 635-636 (O'Connor, J., concurring in part and
concurring in judgment), which have looked to the specific
circumstances of the private religious speech and the public forum
to determine whether there is any realistic danger that such an
observer would think that the government was endorsing religion,
see, e.g., Lynch v. Donnelly, 465 U.S. 668, 692, 694 (O'Connor,
J., concurring). The plurality's per se rule would, in all but a
handful of cases, make the endorsement test meaningless. Pp. 2-10.


(b) Notwithstanding that there was nothing else on the Statehouse
lawn suggesting a forum open to any and all private, unattended
religious displays, a flat denial of the Klan's application was
not the Board's only option to protect against an appearance of
endorsement. Either of two possibilities would have been better
suited to the requirement that the Board find its most "narrowly
drawn" alternative. Perry Ed. Assn. v. Perry Local Educators'
Assn., 460 U.S. 37, 45. First, the Board could have required a
disclaimer sufficiently large and clear to preclude any reasonable
inference that the cross demonstrated governmental endorsement. In
the alternative, the Board could have instituted a policy of
restricting all private, unattended displays to one area of the
square, with a permanent sign marking the area as a forum for
private speech carrying no state endorsement. Pp. 10-13.


Scalia, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, and III, in
which Rehnquist, C. J., and O'Connor, Kennedy, Souter, Thomas, and
Breyer, JJ., joined, and an opinion with respect to Part IV, in
which Rehnquist, C. J., and Kennedy and Thomas, JJ., joined.
Thomas, J., filed a concurring opinion. O'Connor, J., filed an
opinion concurring in part and concurring in the judgment, in
which Souter and Breyer, JJ., joined. Souter, J., filed an opinion
concurring in part and concurring in the judgment, in which
O'Connor and Breyer, JJ., joined. Stevens, J., and Ginsburg, J.,
filed dissenting opinions.


::::::::::::::::::::::::::::::::::: OPINION

JUSTICE SCALIA 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 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 non-interference with other uses
of the square, and which are neutral as to the speech content of
the proposed event. App. 107- 110; Ohio Admin. Code   128-4-02
(1994).


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 Petitioner 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. 844 F.Supp. 1182, 1184 (SD Ohio 1993).


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 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. The District Court determined
that Capitol Square was a traditional public forum open to all
without any policy against free-standing displays; that the Klan's
cross was entirely private expression entitled to full First
Amendment protection; and that the Board had failed to show that
the display of the cross could reasonably be construed as
endorsement of Christianity by the State. The District Court
issued the injunction and, after the Board's application for an
emergency stay was denied, 510 U.S. ___ (1993) (Stevens, J., in
chambers), the Board permitted the Klan to erect its cross. The
Board then received, and granted, several additional applications
to erect crosses on Capitol Square during December 1993 and
January 1994.


On appeal by the Board, the United States Court of Appeals for the
Sixth Circuit affirmed the District Court's judgment. 30 F.3d 675
(1994). That decision agrees with a ruling by the Eleventh
Circuit, Chabad-Lubavitch v. Miller, 5 F.3d 1383 (1993), but
disagrees with decisions of the Second and Fourth Circuits,
Chabad-Lubavitch v. Burlington, 936 F.2d 109 (CA2 1991), cert.
denied, 505 U.S. 1218 (1992), Kaplan v. Burlington, 891 F.2d 1024
(CA2 1989), cert. denied, 496 U.S. 926 (1990), Smith v. County of
Albemarle, 895 F.2d 953 (CA4), cert. denied, 498 U.S. 823 (1990).
We granted certiorari. 513 U.S. ___ (1995).

II

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;[FOOTNOTE 1]
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. Lamb's Chapel v. Center Moriches Union Free School
Dist., 508 U.S. ___ (1993); Board of Ed. of Westside Community
Schools (Dist. 66) v. Mergens, 496 U.S. 226 (1990); Widmar v.
Vincent, 454 U.S. 263 (1981); Heffron v. International Soc. for
Krishna Consciousness, Inc., 452 U.S. 640 (1981). 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, Heffron, supra, at 647, or
even acts of worship, Widmar, supra, at 269, n.6. 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. Postal
Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129
(1981); Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S.
37, 44 (1983). 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. Cornelius v. NAACP Legal
Defense & Ed. Fund, Inc., 473 U.S. 788, 802-803 (1985). 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. Perry Ed. Assn., supra, at 45. These strict standards
apply here, since the District Court and the Court of Appeals
found that Capitol Square was a traditional public forum. 844
F.Supp., at 1184; 30 F.3d, at 678.


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.


III


There is no doubt that compliance with the Establishment Clause is
a state interest sufficiently compelling to justify content-based
restrictions on speech. See Lamb's Chapel, supra, at ___ (slip
op., at 10-11); Widmar, supra, at 271. 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. Lamb's
Chapel, supra; Widmar, supra.


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. 508 U.S., at ___ (slip op., at 6-11). 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." Id., at ___ (slip
op., at 10). 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. 454 U.S., at 269. 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. Id., at 274. We stated categorically that "an open forum
in a public university does not confer any imprimatur of state
approval on religious sects or practices." Ibid.


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.,
Allegheny County v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U.S. 573 (1989); Lynch v. Donnelly, 465
U.S. 668 (1984), 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. 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 County, supra, at 593
(citing cases). 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. See, e.g., Bowen v.
Kendrick, 487 U.S. 589, 608 (1988); Witters v. Washington Dept. of
Services for Blind, 474 U.S. 481, 486-489 (1986); Mueller v.
Allen, 463 U.S. 388 (1983); McGowan v. Maryland, 366 U.S. 420
(1961). Where we have tested for endorsement of religion, 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,
Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512
U.S. ___ (slip op., at 18-20) (1994), Allegheny County, supra. 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 County and Lynch, but each
is easily distinguished. In Allegheny County we held that the
display of a privately-sponsored cr=8Ache 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.
492 U.S., at 599-600, and n. 50 ("[t]he Grand Staircase does not
appear to be the kind of location in which all were free to place
their displays"). 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 cr=8Ache in that location for over six weeks would then not
serve to associate the government with the cr=8Ache." Ibid.
(emphasis added). In Lynch we held that a city's display of a
cr=8Ache did not violate the Establishment Clause because, in
context, the display did not endorse religion. 465 U.S., at
685-687. 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," 508 U.S., at ___ (slip op., at 10). 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. See ibid. 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. 454 U.S., at 274.


What distinguishes Allegheny County 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, 496 U.S., at 250 (O'Connor, J.,
concurring).[FOOTNOTE 2] 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.


The contrary view, most strongly espoused by Justice Stevens,
post, at 11-12, but endorsed by Justice Souter and Justice
O'Connor as well, exiles private religious speech to a realm of
less-protected expression heretofore inhabited only by sexually
explicit displays and commercial speech. Young v. American Mini
Theatres, Inc., 427 U.S. 50, 61, 70-71 (1976); Central Hudson Gas
& Electric Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557
(1980). It will be a sad day when this Court casts piety in with
pornography, and finds the First Amendment more hospitable to
private expletives, see Cohen v. California, 403 U.S. 15, 26
(1971), than to private prayers. This would be merely bizarre were
religious speech simply as protected by the Constitution as other
forms of private speech; but it is outright perverse when one
considers that private religious expression receives preferential
treatment under the Free Exercise Clause. It is no answer to say
that the Establishment Clause tempers religious speech. By its
terms that Clause applies only to the words and acts of
government. It was never meant, and has never been read by this
Court, to serve as an impediment to purely private religious
speech connected to the State only through its occurrence in a
public forum.


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, 454 U.S., at 274. Whether it does would
henceforth depend upon immediate appearances. Policy makers 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).


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, supra; Mueller, supra. It 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 endorsement.[FOOTNOTE 3]

If Ohio is concerned about misperceptions, nothing prevents it
from requiring all private displays in the Square to be identified
as such. That would be a content-neutral "manner" restriction
which is assuredly constitutional. See Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293 (1984). 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.[FOOTNOTE 4]

* * *

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.
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 Clansmen of Old Scotland") that the
Klan uses to celebrate the execution of a former slave. T. Dixon,
The Clansman: An Historical Romance of the Ku Klux Klan 324-326
(1905). Although the cross took on some religious significance in
the 1920's when the Klan became connected with certain southern
white clergy, by the postwar period it had reverted to its
original function as an instrument of intimidation. Wade, supra,
at 185, 279.


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 before us. In the end, there may be much less here
than meets the eye.


JUSTICE O'CONNOR, with whom JUSTICE SOUTER and JUSTICE BREYER
join, 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 2 (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," Allegheny County v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U.S. 573, 628 (1989) (O'Connor,
J., concurring in part and concurring in judgment), even where a
neutral state policy toward private religious speech in a public
forum is at issue. Accordingly, I see no necessity to carve out,
as the plurality opinion would today, an exception to the
endorsement test for the public forum context.


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., 508 U.S. ___, ___ (1993)
(slip op., at 10), by granting respondents a permit to erect their
temporary cross on Capitol Square. I write separately, however, to
emphasize that, because it seeks to identify those situations in
which government makes "'adherence to a religion relevant . . . to
a person's standing in the political community,'" Allegheny,
supra, at 594 (quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984)
(O'Connor, J., concurring), the endorsement test necessarily
focuses upon the perception of a reasonable, informed observer.

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 ___ (slip op., at 10); School Dist. of Grand Rapids v.
Ball, 473 U.S. 373, 390 (1985) (asking "whether the symbolic union
of church and state effected by the challenged governmental action
is sufficiently likely to be perceived by adherents of the
controlling denominations as an endorsement, and by the
nonadherents as a disapproval, of their individual religious
choices"). A government statement "'that religion or a particular
religious belief is favored or preferred,'" Allegheny, supra, at
593 (quoting Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'Connor,
J., concurring in judgment), violates the prohibition against
establishment of religion because such "[e]ndorsement sends a
message to nonadherents that they are outsiders, not full members
of the political community, and an accompanying message to
adherents that they are insiders, favored members of the political
community," Lynch, supra, at 688 (O'Connor, J., concurring). See
also Allegheny, supra, at 628 (O'Connor, J., concurring in part
and concurring in judgment); Wallace, supra, at 69 (O'Connor, J.,
concurring in judgment). Although "[e]xperience proves that the
Establishment Clause . . . cannot easily be reduced to a single
test," Board of Ed. of Kiryas Joel Village School Dist. v. Grumet,
512 U.S. ___, ___ (1994) (slip op., at 10) (O'Connor, J.,
concurring in part and concurring in judgment), the endorsement
inquiry captures the fundamental requirement of the Establishment
Clause when courts are called upon to evaluate the
constitutionality of religious symbols on public property. See
Allegheny, supra, at 593-594.


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 8, 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 6-7. 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 4-10, 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, 454 U.S. 263 (1981), in
Part III of the Court's opinion, I do so with full recognition
that the factors the Court properly identifies ultimately led in
each case to the conclusion that there was no endorsement of
religion by the State. Lamb's Chapel, supra, at ___ (slip op., at
10); Widmar, supra, at 274. See also post, at 8-9 (Souter, J.,
concurring in part and concurring in judgment).


There is, as the plurality notes, ante, at 10, "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, 496 U.S. 226, 250 (1990) (plurality opinion). But the
quoted statement was made while applying the endorsement test
itself; indeed, the sentence upon which the plurality relies was
followed immediately by the conclusion 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." Ibid. Thus, as I read the
decisions Justice Souter carefully surveys, our prior cases do not
imply that the endorsement test has no place where private
religious speech in a public forum is at issue. Moreover, numerous
lower courts (including the Court of Appeals in this case) have
applied the endorsement test in precisely the context before us
today. See, e.g., Chabad-Lubavitch of Georgia v. Miller, 5 F.3d
1383 (CA11 1993) (en banc); Kreisner v. San Diego, 1 F.3d 775,
782-787 (CA9 1993), cert. denied, 510 U.S. ___ (1994); Americans
United for Separation of Church and State v. Grand Rapids, 980
F.2d 1538 (CA6 1992) (en banc); Doe v. Small, 964 F.2d 611 (CA7
1992) (en banc); cf. Smith v. County of Albemarle, 895 F.2d 953
(CA4 1990), cert. denied, 498 U.S. 823 (1990); Kaplan v.
Burlington, 891 F.2d 1024 (CA2 1989), cert. denied, 496 U.S. 926
(1990). Given this background, I see no necessity to draw new
lines where "[r]eligious expression . . . (1) is purely private
and (2) occurs in a traditional or designated public forum," ante,
at 14.


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 same application process
and on the same terms required of other groups." Ante, at 7. And,
as I read the plurality opinion, a case is not governed by its
proposed per se rule where such circumstances are otherwise-that
is, where preferential placement of a religious symbol in a public
space or government manipulation of the forum is involved. See
ante, at 11.


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 3-4, 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, 454 U.S., 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, 496 U.S., at 248 (plurality opinion).


Our agreement as to the outcome of this case, 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 endorsement." Ante, at 13. On the
contrary, when the reasonable observer would view a government
practice as endorsing religion, I believe that it is our duty to
hold the practice invalid. The plurality today takes an
exceedingly narrow view of the Establishment Clause that is out of
step both with the Court's prior cases and with well-established
notions of what the Constitution requires. The Clause is more than
a negative prohibition against certain narrowly defined forms of
government favoritism, see ante, at 11; it also imposes
affirmative obligations that may require a State, in some
situations, to take steps to avoid being perceived as supporting
or endorsing a private religious message. That is, the
Establishment Clause forbids a State from hiding behind the
application of formally neutral criteria and remaining studiously
oblivious to the effects of its actions. Governmental intent
cannot control, and not all state policies are permissible under
the Religion Clauses simply because they are neutral in form.


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, 465 U.S.,
at 690 (O'Connor, J., concurring), the Establishment Clause is
violated. This is so not because of "'transferred endorsement,'"
ante, at 8, or mistaken attribution of private speech to the
State, but because the State's own actions (operating the forum in
a particular manner and permitting the religious expression to
take place therein), and their relationship to the private speech
at issue, actually convey a message of endorsement. At some point,
for example, a private religious group may so dominate a public
forum that a formal policy of equal access is transformed into a
demonstration of approval. Cf. Mergens, 454 U.S., at 275
(concluding that there was no danger of an Establishment Clause
violation in a public university's allowing access by student
religious groups to facilities available to others "[a]t least in
the absence of empirical evidence that religious groups will
dominate [the school's] open forum"). Other circumstances may
produce the same effect-whether because of the fortuity of
geography, the nature of the particular public space, or the
character of the religious speech at issue, among others. Our
Establishment Clause jurisprudence should remain flexible enough
to handle such situations when they arise.


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, 465 U.S., at 694 (O'Connor,
J., concurring). And this question cannot be answered in the
abstract, but instead requires courts to examine the history and
administration of a particular practice to determine whether it
operates as such an endorsement. I continue to believe that
government practices relating to speech on religious topics "must
be subjected to careful judicial scrutiny," ibid., and that the
endorsement test supplies an appropriate standard for that
inquiry.


II


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." 492 U.S., at 623. Today, Justice Stevens reaches a
different conclusion regarding whether the Board's decision to
allow respondents' display on Capitol Square constituted an
impermissible endorsement of the cross' religious message. Yet I
believe it is important to note that we have not simply arrived at
divergent results after conducting the same analysis. Our
fundamental point of departure, it appears, concerns the knowledge
that is properly attributed to the test's "reasonable observer
[who] evaluates whether a challenged governmental practice conveys
a message of endorsement of religion." Id., at 630 (O'Connor, J.,
concurring in part and concurring in judgment). In my view, proper
application of the endorsement test requires that the reasonable
observer be deemed more informed than the casual passerby
postulated by the dissent.


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, 465 U.S., at 690, the endorsement inquiry is not about the
perceptions of particular individuals or saving isolated
non-adherents from the discomfort of viewing symbols of a faith to
which they do not subscribe. Indeed, to avoid "entirely sweep[ing]
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 things" but is "rather a personification of a
community ideal of reasonable behavior, determined by the
[collective] social judgment." W. Keeton et al., Prosser and
Keeton on The Law of Torts 175 (5th ed. 1984). Thus, "we do not
ask whether there is any person who could find an endorsement of
religion, whether some people may be offended by the display, or
whether some reasonable person might think [the State] endorses
religion." Americans United, 980 F.2d, at 1544. Saying that the
endorsement inquiry should be conducted from the perspective of a
hypothetical observer who is presumed to possess a certain level
of information that all citizens might not share neither chooses
the perceptions of the majority over those of a "reasonable
non-adherent," cf. L. Tribe, American Constitutional Law 1293 (2d
ed. 1988), nor invites disregard for the values the Establishment
Clause was intended to protect. It simply recognizes the
fundamental difficulty inherent in focusing on actual people:
there is always someone who, with a particular quantum of
knowledge, reasonably might perceive a particular action as an
endorsement of religion. A State has not made religion relevant to
standing in the political community simply because a particular
viewer of a display might feel uncomfortable.


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." 492 U.S., at 630. Nor can the knowledge attributed to
the reasonable observer be limited to the information gleaned
simply from viewing the challenged display. Today's proponents of
the endorsement test all agree that we should attribute to the
observer knowledge that the cross is a religious symbol, that
Capitol Square is owned by the State, and that the large building
nearby is the seat of state government. See post, at 10-11
(Souter, J., concurring in part and concurring in judgment); post,
at 11 (Stevens, J., dissenting). In my view, our hypothetical
observer also should know the general history of the place in
which the cross is displayed. Indeed, the fact that Capitol Square
is a public park that has been used over time by private speakers
of various types is as much a part of the display's context as its
proximity to the Ohio Statehouse. Cf. Allegheny, 492 U.S., at 600,
n. 50 (noting that "[t]he Grand Staircase does not appear to be
the kind of location in which all were free to place their
displays for weeks at a time . . ."). This approach does not
require us to assume an "'ultra-reasonable observer' who
understands the vagaries of this Court's First Amendment
jurisprudence," post, at 12 (Stevens, J., dissenting). An informed
member of the community will know how the public space in question
has been used in the past-and it is that fact, not that the space
may meet the legal definition of a public forum, which is relevant
to the endorsement inquiry.


The dissent's 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," the dissent suggests, "implies
official approval of its message."  Post, at 6. 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., 460 U.S. 37, 45 (1983) (quoting Hague v. Committee for
Industrial Organization, 307 U.S. 496, 515 (1939)). To the extent
there is a presumption that "structures on government
property-and, in particular, in front of buildings plainly
identified with the State-imply state approval of their message,"
post, at 9 (Stevens, J., dissenting), that presumption can be
rebutted where the property at issue is a forum historically
available for private expression. The reasonable observer would
recognize the distinction between speech the government supports
and speech that it merely allows in a place that traditionally has
been open to a range of private speakers accompanied, if
necessary, by an appropriate disclaimer.


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, 508 U.S., at ___
(slip op., at 10), and in Mergens, 496 U.S., at 250 (plurality
opinion). Moreover, this observer would certainly be able to read
and understand an adequate disclaimer, which the Klan had informed
the State it would include in the display at the time it applied
for the permit, see App. to Pet. for Cert. A-15 to A-16; post, at
11, n. 1 (Souter, J., concurring in part and concurring in
judgment), and the content of which the Board could have defined
as it deemed necessary as a condition of granting the Klan's
application. Cf. American Civil Liberties Union v. Wilkinson, 895
F.2d 1098, 1104-1106 (CA6 1990). On the facts of this case,
therefore, I conclude that the reasonable observer would not
interpret the State's tolerance of the Klan's private religious
display in Capitol Square as an endorsement of religion.


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, it may
not always yield results with unanimous agreement at the margins."
Allegheny, 492 U.S., at 629 (O'Connor, J., concurring in part and
concurring in judgment). In my view, however, this flexibility is
a virtue and not a vice; "courts must keep in mind both the
fundamental place held by the Establishment Clause in our
constitutional scheme and the myriad, subtle ways in which
Establishment Clause values can be eroded," Lynch, 465 U.S., at
694 (O'Connor, J., concurring).


I agree that "compliance with the Establishment Clause is a state
interest sufficiently compelling to justify content-based
restrictions on speech." Ante, at 6. 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.


JUSTICE SOUTER, with whom JUSTICE O'CONNOR and JUSTICE BREYER
join, 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 5-6; see also
post, at 7-8 (Stevens, J., dissenting). The fact that the Capitol
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 not disable the State from closing
the square to all privately owned, unattended structures. A
government entity may ban posters on publicly owned utility poles
to eliminate visual clutter, City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 808 (1984), and may bar
camping as part of a demonstration in certain public parks, Clark
v. Community for Creative Non-Violence, 468 U.S. 288 (1984). It
may similarly adopt a content-neutral policy prohibiting private
individuals and groups from erecting unattended displays in forums
around public buildings. See also Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989) ("[E]ven in a public forum the government may
impose reasonable restrictions on the time, place, or manner of
protected speech, provided [that] the restrictions 'are justified
without reference to the content of the regulated speech, that
they are narrowly tailored to serve a significant governmental
interest, and that they leave open ample alternative channels for
communication of the information,'" quoting Clark, supra, at 293).


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 14. This per se rule would be an exception to the
endorsement test, not previously recognized and out of square with
our precedents.


I


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 13
(acknowledging that "hypothetical observers may-even
reasonably-confuse an incidental benefit to religion with state
endorsement") (emphasis in original); see also ante, at 14, 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, 964 F.2d 611, 630
(CA7 1992) (Easterbrook, J., concurring), to presume that an
unattended display on government land in a place of prominence in
front of a government building either belongs to the government,
represents government speech, or enjoys its location because of
government endorsement of its message. Capitol Square, for
example, is the site of a number of unattended displays owned or
sponsored by the government, some permanent (statues), some
temporary (such as the Christmas tree and a "Seasons Greetings"
banner), and some in between (flags, which are, presumably, taken
down and put up from time to time). See App. 59, 64-65 (photos);
Appendices A & B to this opinion, infra. Given the domination of
the square by the government's own displays, one would not be a
dimwit as a matter of law to think that an unattended religious
display there was endorsed by the government, even though the
square has also been the site of three privately sponsored,
unattended displays over the years (a menorah, a United Way
"thermometer," and some artisans' booths left overnight during an
arts festival), ante, at 2, cf. Allegheny County v. American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 600, n.
50 (1989) ("Even if the Grand Staircase occasionally was used for
displays other than the cr=8Ache . . . it remains true that any
display located there fairly may be understood to express views
that receive the support and endorsement of the government"), and
even though the square meets the legal definition of a public
forum and has been used "[f]or over a century" as the site of
"speeches, gatherings, and festivals," ante, at 1. When an
individual speaks in a public forum, it is reasonable for an
observer to attribute the speech, first and foremost, to the
speaker, while an unattended display (and any message it conveys)
can naturally be viewed as belonging to the owner of the land on
which it stands.


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 County, the Court alluded to two elements of the
analytical framework supplied by Lemon v. Kurtzman, 403 U.S. 602
(1971), by asking "whether the challenged governmental practice
either has the purpose or effect of 'endorsing' religion." 492
U.S., at 592. We said that "the prohibition against governmental
endorsement of religion 'preclude[s] government from conveying or
attempting to convey a message that religion or a particular
religious belief is favored or preferred,'" id., at 593, quoting
Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'Connor, J.,
concurring in judgment) (emphasis omitted), and held that "[t]he
Establishment Clause, at the very least, prohibits government from
appearing to take a position on questions of religious belief,"
492 U.S., at 593-594.


Allegheny County'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 . . . discriminat[ing] in favor of private
religious expression." Ante, at 8. (emphasis omitted). Such a
distinction would, in all but a handful of cases, make meaningless
the "effect-of-endorsing" part of Allegheny County'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 County, supra, at 630, 635-636 (O'Connor, J., concurring
in part and concurring in judgment); Witters v. Washington Dept.
of Services for Blind, 474 U.S. 481, 493 (1986) (O'Connor, J.,
concurring in part and concurring in judgment); see also Allegheny
County, supra, at 593-594, 599-600 (majority opinion); Lynch v.
Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring). If
a reasonable observer would perceive a religious display in a
government forum as government speech endorsing religion, then the
display has made "religion relevant, in . . . public perception,
to status in the political community." Id., at 692 (O'Connor, J.,
concurring). Unless we are to retreat entirely to government
intent and abandon consideration of effects, it makes no sense to
recognize a public perception of endorsement as a harm only in
that subclass of cases in which the government owns the display.
Indeed, the Court stated in Allegheny County that "once the
judgment has been made that a particular proclamation of Christian
belief, when disseminated from a particular location on government
property, has the effect of demonstrating the government's
endorsement of Christian faith, then it necessarily follows that
the practice must be enjoined." 492 U.S., at 612. Notably, we did
not say that it was only a "particular government proclamation"
that could have such an unconstitutional effect, nor does the
passage imply anything of the kind.


The significance of the fact that the Court in Allegheny County
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,
496 U.S. 226 (1990), six Justices applied the endorsement test to
decide whether the Establishment Clause would be violated by a
public high school's application of the Equal Access Act, Pub. L.
98-377, 98 Stat. 1302, 20 U.S.C.    4071-4074, to allow students
to form a religious club having the same access to meeting
facilities as other "noncurricular" groups organized by students.
A plurality of four Justices concluded that such an equal access
policy "does not convey a message of state approval or endorsement
of the particular religion" espoused by the student religious
group. 496 U.S., at 252 (O'Connor, J., joined by Rehnquist, C. J.,
and White and Blackmun, JJ.). Two others concurred in the judgment
in order "to emphasize the steps [the school] must take to avoid
appearing to endorse the [religious] club's goals." Id., at 263
(opinion of Marshall, J., joined by Brennan, J.); see also id., at
264 ("If public schools are perceived as conferring the imprimatur
of the State on religious doctrine or practice as a result of such
a policy, the nominally 'neutral' character of the policy will not
save it from running afoul of the Establishment Clause") (emphasis
in original).


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 irrebuttable presumption, as the
plurality does today, but by making a contextual judgment taking
account of the circumstances of the specific case. See id., at
250-252 (plurality opinion); id., at 264-270 (opinion of Marshall,
J., joined by Brennan, J.); cf. Allegheny County, supra, at 629
(O'Connor, J., concurring in part and concurring in judgment)
("[T]he endorsement test depends on a sensitivity to the unique
circumstances and context of a particular challenged practice");
Lynch, supra, at 694 (O'Connor, J., concurring) ("Every government
practice must be judged in its unique circumstances to determine
whether it constitutes an endorsement or disapproval of
religion"). The Mergens plurality considered the nature of the
likely audience, 496 U.S., at 250 ("[S]econdary school students
are mature enough . . . to understand that a school does not
endorse or support student speech that it merely permits on a
nondiscriminatory basis"); the details of the particular forum,
id., at 252 (noting "the broad spectrum of officially recognized
student clubs" at the school, and the students' freedom "to
initiate and organize additional student clubs"); the
presumptively secular nature of most student organizations, ibid.
("'[I]n the absence of empirical evidence that religious groups
will dominate [the] . . . open forum, . . . the advancement of
religion would not be the forum's "primary effect,"'" quoting
Widmar v. Vincent, 454 U.S. 263, 275 (1981)); and the school's
specific action or inaction that would disassociate itself from
any religious message, 496 U.S., at 251 ("[N]o school officials
actively participate" in the religious group's activities). The
plurality, moreover, expressly relied on the fact that the school
could issue a disclaimer specific to the religious group,
concluding that "[t]o the extent a school makes clear that its
recognition of [a religious student group] is not an endorsement .
of the club evinces neutrality toward, rather than endorsement of,
religious speech." Ibid.; see also id., at 270 (Marshall, J.,
concurring in judgment) (noting importance of schools "taking
whatever further steps are necessary to make clear that their
recognition of a religious club does not reflect their endorsement
of the views of the club's participants").


Similarly, in Lamb's Chapel v. Center Moriches Union Free School
Dist., 508 U.S. ___ (1993), we held that an evangelical church,
wanting to use public school property to show a series of films
about child-rearing with a religious perspective, could not be
refused access to the premises under a policy that would open the
school to other groups showing similar films from a non-religious
perspective. In reaching this conclusion, we expressly concluded
that the policy would "not have the principal or primary effect of
advancing or inhibiting religion." 508 U.S., at ___ (slip op., at
10). Again we looked to the specific circumstances of the private
religious speech and the public forum: the film would not be shown
during school hours or be sponsored by the school, it would be
open to the public, and the forum had been used "repeatedly" by "a
wide variety" of other private speakers. Ibid. "Under these
circumstances," we concluded, "there would have been no realistic
danger that the community would think that the [school] was
endorsing religion." Ibid. We thus expressly looked to the
endorsement effects of the private religious speech at issue,
notwithstanding the fact that there was no allegation that the
Establishment Clause had been violated through active "expression
by the government itself" or affirmative "government action . . .
discriminat[ing] in favor of private religious expression." Ante,
at 8-9 (emphasis omitted). Indeed, the issue of whether the
private religious speech in a government forum had the effect of
advancing religion was central, rather than irrelevant, to our
Establishment Clause enquiry. This is why I agree with the Court
that "[t]he Lamb's Chapel reasoning applies a fortiori here,"
ante, at 7.


Widmar v. Vincent, 454 U.S. 263 (1981), is not to the contrary.
Although Widmar was decided before our adoption of the endorsement
test in Allegheny County, 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 Clause to allow private
religious speech in a "generally open forum" at a university, 454
U.S., at 269, the Court looked to the Lemon test, 454 U.S., at
271, and focused on the "effects" prong, id., at 272, in reaching
a contextual judgment. It was relevant that university students
"should be able to appreciate that the University's policy is one
of neutrality toward religion," that students were unlikely, as a
matter of fact, to "draw any reasonable inference of University
support from the mere fact of a campus meeting place," and that
the University's student handbook carried a disclaimer that the
University should not "'be identified in any way with the . . .
opinions of any [student] organization.'" Id., at 274 n. 14. "In
this context," id., at 273, and in the "absence of empirical
evidence that religious groups [would] dominate [the] open forum,"
id., at 275, the Court found that the forum at issue did not
"confer any imprimatur of state approval on religious sects or
practices," id., at 274.


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 11, 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 "manipulat[e]" 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 forum by religious displays and
religious speakers. By allowing government to encourage what it
can not do on its own, the proposed per se rule would tempt a
public body to contract out its establishment of religion, by
encouraging the private enterprise of the religious to exhibit
what the government could not display itself.


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 & B to this opinion, infra, at
14-15, and while the effect in this case may have provided more
embarrassment than suspicion of endorsement, the opportunity for
the latter is clear.


III


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; 30 F.3d, at 677. There was nothing else on the Statehouse
lawn that would have suggested a forum open to any and all
private, unattended religious displays.


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., 460 U.S. 37, 45 (1983), see also ante, at 6.
Either of two possibilities would have been better suited to this
situation. In support of the Klan's application, its
representative stated in a letter to the Board that the cross
would be accompanied by a disclaimer, legible "from a distance,"
explaining that the cross was erected by private individuals
"without government support." App. 118. The letter said that "the
contents of the sign" were "open to negotiation." Ibid.[FOOTNOTE
1] The Board, then, could have granted the application subject to
the condition that the Klan attach a disclaimer sufficiently large
and clear to preclude any reasonable inference that the cross was
there to "demonstrat[e] the government's allegiance to, or
endorsement of, Christian faith." Allegheny County, 492 U.S., at
612.[FOOTNOTE 2] In the alternative, the Board could have
instituted a policy of restricting all private, unattended
displays to one area of the square, with a permanent sign marking
the area as a forum for private speech carrying no endorsement
from the State.


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.

APPENDIX A (Not available in electronic version)

APPENDIX B (Not available in electronic version)

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.[FOOTNOTE 1]


I


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. App.
173.[FOOTNOTE 2] 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 anti-semitic symbol of bigotry and disrespect for a
particular religious sect. Under the first interpretation, the
cross is plainly a religious symbol.[FOOTNOTE 3] Under the second,
an icon of intolerance expressing an anti-clerical message should
also be treated as a religious symbol because the Establishment
Clause must prohibit official sponsorship of irreligious as well
as religious messages. See Wallace v. Jaffree, 472 U.S. 38, 52
(1985). This principle is no less binding if the anti-religious
message is also a bigoted message. See United States v. Ballard,
322 U.S. 78, 86-89 (1944) (government lacks power to judge truth
of religious beliefs); Watson v. Jones, 13 Wall. 679, 728 (1872)
("The law knows no heresy, and is committed to the support of no
dogma, the establishment of no sect").


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.


II


The plurality does not disagree with the proposition that the
State may not espouse a religious message. Ante, at 10. 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
10. 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, 492 U.S. 573, 593-594 (1989), quoting Lynch v. Donnelly,
465 U.S. 668, 687 (1984) (O'Connor, J., concurring). 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."[FOOTNOTE 4] 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. Ibid. 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
non-adherents from a well-grounded perception that their sovereign
supports a faith to which they do not subscribe.[FOOTNOTE 5]


In determining whether the State's maintenance of the Klan'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 advocating 'Peace
in the Gulf' in the front lawn of a retired general or decorated
war veteran may provoke a different reaction than the same sign in
a 10-year-old child's bedroom window or the same message on a
bumper sticker of a passing automobile. An espousal of socialism
may carry different implications when displayed on the grounds of
a stately mansion than when pasted on a factory wall or an
ambulatory sandwich board." City of Ladue v. Gilleo, 512 U.S. ___,
___ (1994) (slip op., at 13-14) (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, 514 U.S. ___, ___
(1995) (slip op., at 7). Thus, the location of a stationary,
unattended sign generally is both a component of its message and
an implicit endorsement of that message by the party with the
power to decide whether it may be conveyed from that
location.[FOOTNOTE 6]


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 capitol 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 the surrounding territory-has
sponsored and facilitated its message.


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, see infra, at 22, 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.[FOOTNOTE 7] Today
the Court correctly recognizes that a State may impose a ban on
all private unattended displays in such a forum, ante, at 5-6.
This is true despite the fact that our cases have condemned a
number of laws that foreclose an entire medium of expression, even
in places where free speech is otherwise allowed.[FOOTNOTE 8] The
First Amendment affords protection to a basic liberty: "the
freedom of speech" that an individual may exercise when using the
public streets and parks. Hague v. Committee for Industrial
Organization, 307 U.S. 496, 515-516 (1939) (opinion of Roberts,
J.). The Amendment, however, does not destroy all property rights.
In particular, it does not empower individuals to erect structures
of any kind on public property. City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 814 (1984);[FOOTNOTE 9] see
also Clark v. Community for Creative Non-Violence, 468 U.S. 288
(1984). Thus our cases protecting the individual's freedom to
engage in communicative conduct on public property (whether by
speaking, parading, handbilling, waving a flag, or carrying a
banner), e.g., Lovell v. Griffin, 303 U.S. 444 (1938), or to send
messages from her own property by placing a sign in the window of
her home, City of Ladue v. Gilleo, 512 U.S., at ___, do not
establish the right to implant a physical structure (whether a
campaign poster, a burning cross, or a statue of Elvis Presley) on
public property. I think the latter "right," which creates a far
greater intrusion on government property and interferes with the
Government's ability to differentiate its own message from those
of public individuals, does not exist.[FOOTNOTE 10]


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 well-without
violating the Free Speech Clause.[FOOTNOTE 11] Moreover, our
"public forum" cases do not foreclose public entities from
enforcing prohibitions against all unattended displays in public
parks, or possibly even limiting the use of such displays to the
communication of non-controversial messages.[FOOTNOTE 12] Such a
limitation would not inhibit any of the traditional forms of
expression that have been given full constitutional protection in
public fora.


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 Board would have denied the permit on
other grounds. App. 91-92, 169. Accordingly, we must evaluate the
State's rationale on its own terms. But in this case, the
endorsement inquiry under the Establishment Clause follows from
the State's power to exclude unattended private displays from
public property. Just as the Constitution recognizes the State's
interest in preventing its property from being used as a conduit
for ideas it does not wish to give the appearance of ratifying,
the Establishment Clause prohibits government from allowing, and
thus endorsing, unattended displays that take a position on a
religious issue. If the State allows such stationary displays in
front of its seat of government, viewers will reasonably assume
that it approves of them. As the picture appended to this opinion
demonstrates, infra, at 22, a reasonable observer would likely
infer endorsement from the location of the cross erected by the
Klan in this case. Even if the disclaimer at the foot of the cross
(which stated that the cross was placed there by a private
organization) were legible, that inference would remain, because a
property owner's decision to allow a third party to place a sign
on her property conveys the same message of endorsement as if she
had erected it herself.[FOOTNOTE 13]


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 symbol of a
religious character in, on, or before a seat of government.


III


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
6; ante, at 13 (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
8. 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
"ultra-reasonable 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 "non-public 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 30 F.3d 675,
679 (CA6 1994) (quoting Doe v. Small, 964 F.2d 611, 630 (CA7 1992)
(Easterbrook, J., concurring)); nor does it make them unworthy of
constitutional protection. It merely makes them human. For a
religious display to violate the Establishment Clause, I think it
is enough that some reasonable observers would attribute a
religious message to the State.


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 convincing, because it
assumes that all reasonable viewers know all about the history of
Capitol Square-a highly unlikely supposition.[FOOTNOTE 14] But the
plurality's argument fails on its own terms, because each of the
three previous displays conveyed the same message of approval and
endorsement that this one does.


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.[FOOTNOTE 15] In my opinion, both displays are equally
objectionable. Moreover, the fact that the State has placed its
stamp of approval on two different religions instead of one only
compounds the constitutional violation. The Establishment Clause
does not merely prohibit the State from favoring one religious
sect over others. It also proscribes state action supporting the
establishment of a number of religions,[FOOTNOTE 16] as well as
the official endorsement of religion in preference to nonreligion.
Wallace v. Jaffree, 472 U.S., at 52-55. The State's prior approval
of the pro-religious message conveyed by the menorah is fully
consistent with its endorsement of one of the messages conveyed by
the cross: "The State of Ohio favors religion over irreligion."
This message is incompatible with the principles embodied by our
Establishment Clause.


The record identifies two other examples of free-standing 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."[FOOTNOTE 17] App. to Pet. for
Cert. A-16. Both of those examples confirm the proposition that a
reasonable observer should infer official approval of the message
conveyed by a structure erected in front of the Statehouse. Surely
the thermometer suggested that the State was encouraging passersby
to contribute to the United Way. It seems equally clear that the
State was endorsing the creativity of artisans and craftsmen by
permitting their booths to occupy a part of the Square. Nothing
about either of those freestanding displays contradicts the normal
inference that the State has endorsed whatever message might be
conveyed by permitting an unattended symbol to adorn the Capitol
grounds.[FOOTNOTE 18] Accordingly, the fact that the menorah, and
later the cross, stood in an area available "'for free discussion
of public questions, or for activities of a broad public
purpose,'" Ohio Rev. Code Ann.   105.41 (1994), quoted ante, at
1-2, is fully consistent with the conclusion that the State
sponsored those religious symbols. They, like the thermometer and
the booths, were displayed in a context that connotes state
approval.


This case is therefore readily distinguishable from Widmar v.
Vincent, 454 U.S. 263 (1981), and Lamb's Chapel v. Center Moriches
Union Free School Dist., 508 U.S. ___ (1993). In both of those
cases, as we made perfectly clear, there was no danger of
incorrect identification of the speakers and no basis for
inferring that their messages had been endorsed by any public
entity. As we explained in the later case:


"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 ___ (slip op., at 10) (footnote omitted).


In contrast, the installation of the religious symbols in Capitol
Square quite obviously did "have the principal or primary effect
of advancing or inhibiting religion"; indeed, no other effect is
even suggested by the record. The primary difference is that in
this case we are dealing with a visual display-a symbol readily
associated with a religion, in a venue readily associated with the
State. This clear image of endorsement was lacking in Widmar and
Lamb's Chapel, in which the issue was access to government
facilities. Moreover, there was no question in those cases of an
unattended display; private speakers, who could be distinguished
from the state, were present. See supra, at 6-7. Endorsement might
still be present in an access case if, for example, the religious
group sought the use of the roof of a public building for an
obviously religious ceremony, where many onlookers might witness
that ceremony and connect it to the State. But no such facts were
alleged in Widmar or Lamb's Chapel. The religious practices in
those cases were simply less obtrusive, and less likely to send a
message of endorsement, than the eye-catching symbolism at issue
in this case.


The battle over the Klan cross underscores the power of such
symbolism. The menorah prompted the Klan to seek permission to
erect an anti-semitic 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 or
anti-religious message.[FOOTNOTE 19] Our Constitution wisely seeks
to minimize such strife by forbidding state-endorsed religious
activity.


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 immediately before and contemporaneous with the
colonization of America had been filled with turmoil, civil
strife, and persecutions, generated in large part by established
sects 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
non-believers, 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 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.


The wrestling over the Klan cross in Capitol Square is far removed
from the persecution that motivated William Penn to set sail for
America, and the issue resolved in Everson is quite different from
the controversy over symbols that gave rise to this
litigation.[FOOTNOTE 20] Nevertheless the views expressed by both
the majority and the dissenters in that landmark case counsel
caution before approving the order of a federal judge commanding a
State to authorize the placement of free-standing religious
symbols in front of the seat of its government. The Court's
decision today is unprecedented. It entangles two sovereigns in
the propagation of religion, and it disserves the principle of
tolerance that underlies the prohibition against state action
"respecting an establishment of religion."[FOOTNOTE 21]


I respectfully dissent.

APPENDIX (Not available in electronic version)

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. See ante, at 5-6 (O'Connor, J.,
concurring in part and concurring in judgment); ante, at 10-11
(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, 330
U.S. 1, 16 (1947), a State may not permit, and a court may not
order, a display of this character. Cf. Sullivan, Religion and
Liberal Democracy, 59 U. Chi. L. Rev. 195, 197-214 (1992)
(negative bar against establishment of religion implies
affirmative establishment of secular public order). 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," see ante, at
10: a sufficiently large and clear disclaimer, ante, at
11-12;[FOOTNOTE 1] or an area reserved for unattended displays
carrying no endorsement from the State, a space plainly and
permanently so marked. Ante, at 12-13. Neither arrangement is even
arguably present in this case. The District Court's order did not
mandate a disclaimer. See App. to Pet. for Cert. A26 ("Plaintiffs
are entitled to an injunction requiring the defendants to issue a
permit to erect a cross on Capitol Square"). And the disclaimer
the Klan appended to the foot of the cross[FOOTNOTE 2] was
unsturdy: it did not identify the Klan as sponsor; it failed to
state unequivocally that Ohio did not endorse the display's
message; and it was not shown to be legible from a distance. The
relief ordered by the District Court thus violated the
Establishment Clause.


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 21
(appendix to dissent of Stevens, J.) (photograph of display).


:::::::::::::::::::::::::::::::::: FOOTNOTES


FN1. Respondents claim that the Sixth Circuit's statement that
"[z]ealots 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." 30 F.3d 675, 680 (CA6
1994). The court was obviously addressing zealous (and unpopular)
religious speech.


FN2. This statement in Justice O'Connor's Mergens concurrence 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." 496 U.S., at 250. Justice
O'Connor today says this observation means that, even when we
recognize private speech to be at issue, we must apply the
endorsement test. Post, at 4. But that would cause the second
sentence to contradict the first, saying in effect that the
"difference between government speech . . . and private speech" is
not "crucial."


FN3. If it is true, as Justice O'Connor suggests, post, at 5, 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 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 the concurrence
identifies as having "applied the endorsement test in precisely
the context before us today," post, at 4, have reached precisely
differing results-which is what led the Court to take this case.
And if further proof of the invited chaos is required, one need
only follow the debate between the concurrence and Justice
Stevens' dissent as to whether the hypothetical beholder who will
be the determinant of "endorsement" should be any beholder (no
matter how unknowledgeable), or the average beholder, or (what
Justice Stevens accuses the concurrence of favoring) the
"ultra-reasonable" beholder. See post, at 8-12 (O'Connor, J.,
concurring in judgment); post, at 12-13 (Stevens, J., dissenting).
And of course even when one achieves agreement upon that question,
it will be unrealistic to expect different judges (or should it be
juries?) to reach consistent answers as to what any beholder, the
average beholder, or the ultra-reasonable beholder (as the case
may be) would think. It is irresponsible to make the Nation's
legislators walk this minefield.


FN4. For this reason, among others, we do not inquire into the
adequacy of the identification which 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.


:::::::::::::::::::::::::::: CONCURRING FOOTNOTES


FN1. 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), p. 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 based on the assumption that a
disclaimer would accompany the cross, since the cross the Klan put
up on the basis of the District Court's command in fact carried a
disclaimer, see App. 63 (photo); Appendix to Opinion of Stevens,
J., post, at 21. Since the litigation preceded the appearance of
the cross and the sign, the adequacy of the sign actually produced
was not considered. The adequacy of a disclaimer, in size as well
as content, is, of course, a proper subject of judicial scrutiny
when placed in issue. Whether the flimsy cardboard sign attached
by the Klan to the base of the cross functioned as an adequate
disclaimer in this case is a question not before us.

FN2. 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 County, 492
U.S., at 593 (emphasis, internal quotation marks, and citation
omitted), when other indicia of endorsement (e.g., objective
indications that the government in fact invited the display or
otherwise intended to further a religious purpose) outweigh the
mitigating effect of the disclaimer, or when the disclaimer itself
does not sufficiently disclaim government support. See, e.g.,
Stone v. Graham, 449 U.S. 39, 41 (1980); Allegheny County, supra,
at 600-601; cf. ante, at 14, n. 4. In this case, however, there is
no reason to presume that an adequate disclaimer could not have
been drafted. Cf. Parish, Private Religious Displays in Public
Fora, 61 U. Chi. L. Rev. 253, 285-287 (1994).


:::::::::::::::::::::::::::: CONCURRING FOOTNOTES

FN1. See Reynolds v. United States, 98 U.S. 145, 164 (1879).

FN2. 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 13-14. 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.


FN3. 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, 794 F.2d 265, 271
(CA7 1986) ("Such a display is not only religious but also
sectarian. This is not just because some religious Americans are
not Christians. Some Protestant sects still do not display the
cross . . . . The Greek Orthodox church uses as its symbol the
Greek (equilateral) cross, not the Latin cross. . . . [T]he more
sectarian the display, the closer it is to the original targets of
the [establishment] clause, so the more strictly is the clause
applied").


FN4. In Allegheny, five Justices found the likely reaction of a
"'reasonable observer'" relevant for purposes of determining
whether an endorsement was present. 492 U.S., at 620 (opinion of
Blackmun, J.); id., at 635-636 (opinion of O'Connor, J.); id., at
642-643 (opinion of Brennan, J., joined by Marshall and Stevens,
JJ.).

FN5. 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 8-9. 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 9. 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 "there is always someone" who
will feel excluded by any particular governmental action, ante, at
10, 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.


FN6. 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 reasonable 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.


FN7. 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 10-12. Justice O'Connor thus
presumes a reasonable observer so prescient as to understand legal
doctrines that this Court has not yet adopted.


FN8. "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, 303 U.S.
444, 451-452 (1938); handbills on the public streets, Jamison v.
Texas, 318 U.S. 413, 416 (1943); the door-to-door distribution of
literature, Martin v. Struthers, 319 U.S. 141, 145-149 (1943);
Schneider v. State, 308 U.S. 147, 164-165 (1939), and live
entertainment, Schad v. Mount Ephraim, 452 U.S. 61, 75-76 (1981).
See also Frisby v. Schultz, 487 U.S. 474, 486 (1988) (picketing
focused upon individual residence is 'fundamentally different from
more generally directed means of communication that may not be
completely banned in residential areas'). Although prohibitions
foreclosing entire media may be completely free of content or
viewpoint discrimination, the danger they pose to the freedom of
speech is readily apparent-by eliminating a common means of
speaking, such measures can suppress too much speech." City of
Ladue v. Gilleo, 512 U.S. ___, ___ (1994) (slip op., at 12)
(footnote omitted).

FN9. 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 (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.

FN10. 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.

FN11. 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 11-12. Yet,
we have upheld the exclusion of all political signs from public
vehicles, Lehman v. City of Shaker Heights, 418 U.S. 298 (1974),
though political expression is at the heart of the protection
afforded by the First Amendment. McIntyre, 514 U.S., at ___ (slip
op., at 12-13). A view that "private prayers," ante, at 11, are
most appropriate in private settings is neither novel nor
disrespectful to religious speech.

FN12. 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).

FN13. 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 Capitol 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 14, n. 4.
Justice Souter is of the view that an adequate disclaimer is
constitutionally required, ante, at 11-12, but he does not suggest
that the attachment to the Klan's cross in this case was adequate.

FN14. Justice O'Connor apparently would not extend Establishment
Clause protection to passers by who are unaware of Capitol
Square's history. See ante, at 10-12. 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 10-11. But passers by,
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.

FN15. A fragmented Court reached a different conclusion in County
of Allegheny v. American Civil Liberties Union, Greater Pittsburgh
Chapter, 492 U.S. 573 (1989). In that case, a majority of this
Court decided that a cr=8Ache placed by a private group inside a
public building violated the Establishment Clause, id., at
598-602, but that a menorah placed alongside a Christmas tree and
a "sign saluting liberty" outside that same building did not. Id.,
at 613-621 (opinion of Blackmun, J.); id., at 632-637 (opinion of
O'Connor, J.); id., at 663-667 (opinion of Kennedy, J., joined by
Rehnquist, C. J., White and Scalia, JJ.). The two Justices who
provided the decisive votes to distinguish these situations relied
on the presence of the tree and the sign to find that the menorah,
in context, was not a religious but a secular symbol of liberty.
Id., at 613-621 (opinion of Blackmun, J.); id., at 632-637
(opinion of O'Connor, J.). It was apparently in reliance on the
outcome of the Allegheny case that Ohio believed it could provide
a forum for the menorah (which appeared in Capitol Square with a
state-owned Christmas tree and a banner reading, "Season's
Greetings") and yet could not provide one for the cross. See App.
169. Given the state of the law at the time, Ohio's decision was
hardly unreasonable; but I cannot support a view of the
Establishment Clause that permits a State effectively to endorse
some kinds of religious symbols but not others. I would find that
the State is powerless to place, or allow to be placed, any
religious symbol-including a menorah or a cross-in front of its
seat of government.

FN16. See Allegheny, 492 U.S., at 647-649 (Stevens, J.,
dissenting).

FN17. The booths were attended during the festival itself, but
were left standing overnight during the pendency of the event.
App. 159.


FN18. Of course, neither of these endorsements was religious in
nature, and thus neither was forbidden by the Constitution.


FN19. 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 cr=8Ache 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 '[p]assersby 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.).

FN20. Everson held that a school district could, as part of a
larger program of reimbursing students for their transportation to
and from school, also reimburse students attending Catholic
schools. 330 U.S. 1 (1947).

FN21. The words, "respecting an establishment of religion," were
selected to emphasize the breadth and richer meaning of this
fundamental command. See Allegheny, 492 U.S., at 647-649 (Stevens,
J., dissenting).


:::::::::::::::::::::::::::: DISSENTING FOOTNOTES


FN1. Cf. American Civil Liberties Union v. Wilkinson, 895 F.2d
1098, 1101, n. 2, 1106 (CA6 1990) (approving disclaimer ordered by
District Court, which had to be "'prominently displayed
immediately in front of'" the religious symbol and "'readable from
an automobile passing on the street directly in front of the
structure'"; the approved sign read: "'This display was not
constructed with public funds and does not constitute an
endorsement by the Commonwealth [of Kentucky] of any religion or
religious doctrine.'") (quoting District Court); McCreary v.
Stone, 739 F.2d 716, 728 (CA2 1984) (disclaimers must meet
requirements of size, visibility, and message; disclaimer at issue
was too small), aff'd, 471 U.S. 83 (1985) (per curiam); Parish,
Private Religious Displays in Public Fora, 61 U. Chi. L. Rev. 253,
285-286 (1994) (disclaimer must not only identify the sponsor, it
must say "in no uncertain language" that the government's permit
"in no way connotes [government] endorsement of the display's
message"; the "disclaimer's adequacy should be measured by its
visibility to the average person viewing the religious display").


FN2. 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.

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