The Supreme Court/The Supreme Court.iso/pc/ascii/1994/94_780/94_780.zo

Text File | 1995-06-29 | 23.2 KB | 454 lines

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
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 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 sur-
rounding 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 con-
cern 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 prog-
ress of a United Way fundraising campaign, and booths
and exhibits during an arts festival.  Although there
was some dispute in this litigation regarding the fre-
quency 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 appli-
cation 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 Fed-
eral 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 appli-
cation 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 dis-
agreement 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 po-
litical views of the Ku Klux Klan.  Whatever the fact
may be, the case was not presented and decided that
way.  The record facts before us and the opinions below
address only the Establishment Clause issue; that is the
question upon which we granted certiorari; and that is
the sole question before us to decide.
  Respondents' religious display in Capitol Square was
private expression.  Our precedent establishes that
private religious speech, far from being a First Amend-
ment 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 com-
monly 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 Capi-
tol Square.
  It is undeniable, of course, that speech which is con-
stitutionally protected against state suppression is not
thereby accorded a guaranteed forum on all property
owned by the State.  Postal Service v. Council of Green-
burgh 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 respond-
ents' 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 Establish-
ment 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 previ-
ously 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, exclud-
ing, 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 re-
jected the district's compelling-state-interest Establish-
ment 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 avail-
able 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 com-
pelling 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' expres-
sion, 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 -endorse-
ment test- which appears in our more recent Establish-
ment Clause jurisprudence, that petitioners urge upon
us.  -Endorsement- connotes an expression or demonstra-
tion 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.-  Al-
legheny 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 govern-
ment 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-che 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 ex-
pression.  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 ex-
pressly 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-che in that location for over six weeks would
then not serve to associate the government with the
cr-che.-  Ibid. (emphasis added).  In Lynch we held that
a city's display of a cr-che did not violate the Establish-
ment Clause because, in context, the display did not en-
dorse 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 effec-
tively endorses sectarian religious belief.  But the case
neither holds nor even remotely assumes that the gov-
ernment's neutral treatment of private religious expres-
sion can be unconstitutional.
  Petitioners argue that absence of perceived endorse-
ment 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 differ-
ence 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 pro-
tect.-  Mergens, 496 U. S., at 250 (O'Connor, J., con-
curring).  Petitioners assert, in effect, that that dis-
tinction 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 Estab-
lishment 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 build-
ing) in such a manner that only certain religious groups
take advantage of it, creating an impression of endorse-
ment 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 exple-
tives, 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 Consti-
tution 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 con-
fer any imprimatur of state approval on religious sects
or practices.-  Widmar, 454 U. S., at 274.  Whether
it does would henceforth depend upon immediate appear-
ances.  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 suppress-
ing 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 constitution-
ality 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.
  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.

                 *    *    *
  Religious expression cannot violate the Establishment
Clause where it (1) is purely private and (2) occurs in a
traditional or designated public forum, publicly an-
nounced and open to all on equal terms.  Those condi-
tions are satisfied here, and therefore the State may not
bar respondents' cross from Capitol Square.
  The judgment of the Court of Appeals is
                                    affirmed.