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 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.

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 crèche . . . 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.

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 . . . students will reasonably understand that the . . . recognition 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.

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. 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. 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 TO OPINION OF SOUTER, J.

APPENDIX B TO OPINION OF SOUTER, J.