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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 94-780
- --------
- CAPITOL SQUARE REVIEW AND ADVISORY BOARD,
- et al., PETITIONERS v. VINCENT J. PINETTE,
- DONNIE A. CARR and KNIGHTS OF THE
- KU KLUX KLAN
- on writ of certiorari to the united states court
- of appeals for the sixth circuit
- [June 29, 1995]
-
- 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; or an area reserved for unattended dis-
- plays 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 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.) (photo-
- graph of display).
-