NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

CAPITOL SQUARE REVIEW AND ADVISORY BOARD et al. v. PINETTE et al.

certiorari to the united states court of appeals for the sixth circuit

No. 94-780. Argued April 26, 1995 -- Decided June 29, 1995

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.