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- SUPREME COURT OF THE UNITED STATES
- --------
- No. A-517
- --------
- CAPITAL SQUARE REVIEW AND ADVISORY
- BOARD et al. v. VINCENT J.
- PINETTE et al.
- on application for stay of injunction
- [December 23, 1993]
-
- Justice Stevens, Circuit Justice.
- Today is Thursday, December 23, 1993. Yesterday
- evening petitioners filed with me, in my capacity as
- Circuit Justice for the Sixth Circuit, an application for
- a stay of an injunction entered by the District Court and
- upheld by the Court of Appeals. The injunction required
- petitioners to allow the respondents, the Knights of the
- Ku Klux Klan and its leading officers, to erect a large
- Latin cross in front of the Ohio Statehouse in Columbus,
- Ohio. As I understand the situation, the cross is in
- place now and is scheduled to be removed tomorrow. If
- I were to grant the application forthwith, it would be
- removed today-unless, of course, respondents could
- persuade the full Court to reinstate the injunction.
- The case is unique because the District Court found
- that the local government has effectively disassociated
- itself from the display:
- -Indeed, the `reasonable' observer-being an individ-
- ual who is knowledgeable about local events-might
- well know by virtue of all of the recent media
- coverage that the state of Ohio as represented by its
- leading elected officials opposes the display of the
- cross and any messages which might reasonably be
- associated with this display by the Klan. Moreover,
- the reasonable observer would likely know that a
- menorah was displayed during the celebration of
- Hanukkah, and a Christmas tree has been displayed
- throughout the month of December. From all of
- this, the reasonable observer should conclude that
- the government is expressing its toleration of
- religious and secular pluralism.- No. C2-93-1162
- (SD Ohio, Dec. 21, 1993), p. 13.
- In their application, petitioners do not dispute the
- accuracy of that finding.
- Whether or not petitioners' legal position is sound (and
- my opinion in Allegheny County v. American Civil
- Liberties Union, Greater Pittsburgh Chapter, 492 U. S.
- 573, 646-655 (1989) explains why I am not unresponsive
- to their arguments), they must shoulder the burden of
- persuading me that irreparable harm will ensue if I do
- not grant their application. Frankly, it is my opinion
- that whatever harm may flow from allowing the pri-
- vately owned cross to remain in place until tomorrow
- has probably already occurred. Moreover, because the
- legal issues are presumably capable of repetition, I do
- not believe the case will become moot when the cross is
- removed tomorrow. Rather than asking my colleagues
- to resolve those issues summarily, applicants may be
- well advised to marshal their arguments in a certiorari
- petition that can be considered with appropriate deliber-
- ation.
- For these reasons, I shall defer to the judgment of the
- Court of Appeals and deny the application.
-
- It is so ordered.
-