SUPREME COURT OF THE UNITED STATES - No. 94-780 - CAPITOL SQUARE REVIEW AND ADVISORY BOARD

SUPREME COURT OF THE UNITED STATES
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No. 94-780
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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 O'Connor, with whom Justice Souter and
Justice Breyer join, concurring in part and concurring
in the judgment.
  I join Parts I, II, and III of the Court's opinion and
concur in the judgment.  Despite the messages of bigotry
and racism that may be conveyed along with religious
connotations by the display of a Ku Klux Klan cross, see
ante, at 2 (Thomas, J., concurring), at bottom this case
must be understood as it has been presented to us-as
a case about private religious expression and whether
the State's relationship to it violates the Establishment
Clause.  In my view, -the endorsement test asks the
right question about governmental practices challenged
on Establishment Clause grounds, including challenged
practices involving the display of religious symbols,-
Allegheny County v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573, 628 (1989)
(O'Connor, J., concurring in part and concurring in
judgment), even where a neutral state policy toward
private religious speech in a public forum is at issue. 
Accordingly, I see no necessity to carve out, as the
plurality opinion would today, an exception to the en-
dorsement test for the public forum context.
  For the reasons given by Justice Souter, whose
opinion I also join, I conclude on the facts of this case
that there is -no realistic danger that the community
would think that the [State] was endorsing religion or
any particular creed,- Lamb's Chapel v. Center Moriches
Union Free School Dist., 508 U. S. ___, ___ (1993) (slip
op., at 10), by granting respondents a permit to erect
their temporary cross on Capitol Square.  I write
separately, however, to emphasize that, because it seeks
to identify those situations in which government makes
-`adherence to a religion relevant . . . to a person's
standing in the political community,'- Allegheny, supra,
at 594 (quoting Lynch v. Donnelly, 465 U. S. 668, 687
(1984) (O'Connor, J., concurring), the endorsement test
necessarily focuses upon the perception of a reasonable,
informed observer.

                      I
  -In recent years, we have paid particularly close atten-
tion [in Establishment Clause cases] to whether the
challenged governmental practice either has the purpose
or effect of `endorsing' religion, a concern that has long
had a place in our Establishment Clause jurisprudence.- 
Allegheny, supra, at 592.  See also Lamb's Chapel,
supra, at ___ (slip op., at 10); School Dist. of Grand
Rapids v. Ball, 473 U. S. 373, 390 (1985) (asking
-whether the symbolic union of church and state effected
by the challenged governmental action is sufficiently
likely to be perceived by adherents of the controlling
denominations as an endorsement, and by the nonadher-
ents as a disapproval, of their individual religious
choices-).  A government statement -`that religion or a
particular religious belief is favored or preferred,'-
Allegheny, supra, at 593 (quoting Wallace v. Jaffree, 472
U. S. 38, 70 (1985) (O'Connor, J., concurring in judg-
ment), violates the prohibition against establishment of
religion because such -[e]ndorsement sends a message to
nonadherents that they are outsiders, not full members
of the political community, and an accompanying
message to adherents that they are insiders, favored
members of the political community,- Lynch, supra, at
688 (O'Connor, J., concurring).  See also Allegheny,
supra, at 628 (O'Connor, J., concurring in part and
concurring in judgment); Wallace, supra, at 69 (O'Con-
nor, J., concurring in judgment).  Although -[e]xperience
proves that the Establishment Clause . . . cannot easily
be reduced to a single test,- Board of Ed. of Kiryas Joel
Village School Dist. v. Grumet, 512 U. S. ___, ___ (1994)
(slip op., at 10) (O'Connor, J., concurring in part and
concurring in judgment), the endorsement inquiry
captures the fundamental requirement of the Establish-
ment Clause when courts are called upon to evaluate the
constitutionality of religious symbols on public property. 
See Allegheny, supra, at 593-594.
  While the plurality would limit application of the
endorsement test to -expression by the government itself,
. . . or else government action alleged to discriminate in
favor of private religious expression or activity,- ante, at
8, I believe that an impermissible message of endorse-
ment can be sent in a variety of contexts, not all of
which involve direct government speech or outright
favoritism.  See infra, at 6-7.  It is true that neither
Allegheny nor Lynch, our two prior religious display
cases, involved the same combination of private religious
speech and a public forum that we have before us today. 
Nonetheless, as Justice Souter aptly demonstrates,
post, at 4-10, we have on several occasions employed an
endorsement perspective in Establishment Clause cases
where private religious conduct has intersected with a
neutral governmental policy providing some benefit in a
manner that parallels the instant case.  Thus, while I
join the discussion of Lamb's Chapel and Widmar v.
Vincent, 454 U. S. 263 (1981), in Part III of the Court's
opinion, I do so with full recognition that the factors the
Court properly identifies ultimately led in each case to
the conclusion that there was no endorsement of religion
by the State.  Lamb's Chapel, supra, at ___ (slip op., at
10); Widmar, supra, at 274.  See also post, at 8-9
(Souter, J., concurring in part and concurring in
judgment).
  There is, as the plurality notes, ante, at 10, -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 protect.-  Board of Ed. of Westside
Community Schools (Dist. 66) v. Mergens, 496 U. S. 226,
250 (1990) (plurality opinion).  But the quoted statement
was made while applying the endorsement test itself;
indeed, the sentence upon which the plurality relies was
followed immediately by the conclusion that -secondary
school students are mature enough and are likely to
understand that a school does not endorse or support
student speech that it merely permits on a nondiscrimi-
natory basis.-  Ibid.  Thus, as I read the decisions
Justice Souter carefully surveys, our prior cases do not
imply that the endorsement test has no place where
private religious speech in a public forum is at issue. 
Moreover, numerous lower courts (including the Court of
Appeals in this case) have applied the endorsement test
in precisely the context before us today.  See, e.g.,
Chabad-Lubavitch of Georgia v. Miller, 5 F. 3d 1383
(CA11 1993) (en banc); Kreisner v. San Diego, 1 F. 3d
775, 782-787 (CA9 1993), cert. denied, 510 U. S. ___
(1994); Americans United for Separation of Church and
State v. Grand Rapids, 980 F. 2d 1538 (CA6 1992) (en
banc); Doe v. Small, 964 F. 2d 611 (CA7 1992) (en
banc); cf. Smith v. County of Albemarle, 895 F. 2d 953
(CA4 1990), cert. denied, 498 U. S. 823 (1990); Kaplan
v. Burlington, 891 F. 2d 1024 (CA2 1989), cert. denied,
496 U. S. 926 (1990).  Given this background, I see no
necessity to draw new lines where -[r]eligious expression
. . . (1) is purely private and (2) occurs in a traditional
or designated public forum,- ante, at 14.
  None of this is to suggest that I would be likely to
come to a different result from the plurality where truly
private speech is allowed on equal terms in a vigorous
public forum that the government has administered
properly.  That the religious display at issue here was
erected by a private group in a public square available
-for use by the public . . . for free discussion of public
questions, or for activities of a broad public purpose,-
Ohio Admin. Code Ann. 128-4-02(A) (1994), certainly
informs the Establishment Clause inquiry under the
endorsement test.  Indeed, many of the factors the
plurality identifies are some of those I would consider
important in deciding cases like this one where religious
speakers seek access to public spaces: -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 groups.-  Ante, at 7.  And, as I
read the plurality opinion, a case is not governed by its
proposed per se rule where such circumstances are other-
wise-that is, where preferential placement of a religious
symbol in a public space or government manipulation of
the forum is involved.  See ante, at 11.
  To the plurality's consideration of the open nature of
the forum and the private ownership of the display,
however, I would add the presence of a sign disclaiming
government sponsorship or endorsement on the Klan
cross, which would make the State's role clear to the
community.  This factor is important because, as
Justice Souter makes clear, post, at 3-4, certain
aspects of the cross display in this case arguably
intimate government approval of respondents' private
religious message-particularly that the cross is an
especially potent sectarian symbol which stood unattend-
ed in close proximity to official government buildings. 
In context, a disclaimer helps remove doubt about State
approval of respondents' religious message.  Cf. Widmar,
454 U. S., at 274, n. 14 (-In light of the large number
of groups meeting on campus, however, we doubt
students could draw any reasonable inference of Univer-
sity support from the mere fact of a campus meeting
place.  The University's student handbook already notes
that the University's name will not `be identified in any
way with the aims, policies, programs, products, or
opinions of any organization or its members'-).  On
these facts, then, -the message [of inclusion] is one of
neutrality rather than endorsement.-  Mergens, 496
U. S., at 248 (plurality opinion).
  Our agreement as to the outcome of this case, how-
ever, cannot mask the fact that I part company with the
plurality on a fundamental point: I disagree that -[i]t
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.-  Ante, at 13. 
On the contrary, when the reasonable observer would
view a government practice as endorsing religion, I
believe that it is our duty to hold the practice invalid. 
The plurality today takes an exceedingly narrow view of
the Establishment Clause that is out of step both with
the Court's prior cases and with well-established notions
of what the Constitution requires.  The Clause is more
than a negative prohibition against certain narrowly
defined forms of government favoritism, see ante, at 11;
it also imposes affirmative obligations that may require
a State, in some situations, to take steps to avoid being
perceived as supporting or endorsing a private religious
message.  That is, the Establishment Clause forbids a
State from hiding behind the application of formally
neutral criteria and remaining studiously oblivious to
the effects of its actions.  Governmental intent cannot
control, and not all state policies are permissible under
the Religion Clauses simply because they are neutral in
form.
  Where the government's operation of a public forum
has the effect of endorsing religion, even if the govern-
mental actor neither intends nor actively encourages
that result, see Lynch, 465 U. S., at 690 (O'Connor, J.,
concurring), the Establishment Clause is violated.  This
is so not because of -`transferred endorsement,'- ante, at
8, or mistaken attribution of private speech to the State,
but because the State's own actions (operating the forum
in a particular manner and permitting the religious
expression to take place therein), and their relationship
to the private speech at issue, actually convey a message
of endorsement.  At some point, for example, a private
religious group may so dominate a public forum that a
formal policy of equal access is transformed into a
demonstration of approval.  Cf. Mergens, 454 U. S., at
275 (concluding that there was no danger of an Estab-
lishment Clause violation in a public university's
allowing access by student religious groups to facilities
available to others -[a]t least in the absence of empirical
evidence that religious groups will dominate [the
school's] open forum-).  Other circumstances may
produce the same effect-whether because of the fortuity
of geography, the nature of the particular public space,
or the character of the religious speech at issue, among
others.  Our Establishment Clause jurisprudence should
remain flexible enough to handle such situations when
they arise.
  In the end, I would recognize that the Establishment
Clause inquiry cannot be distilled into a fixed, per se
rule.  Thus, -[e]very government practice must be judged
in its unique circumstances to determine whether it
constitutes an endorsement or disapproval of religion.- 
Lynch, 465 U. S., at 694 (O'Connor, J., concurring). 
And this question cannot be answered in the abstract,
but instead requires courts to examine the history and
administration of a particular practice to determine
whether it operates as such an endorsement.  I continue
to believe that government practices relating to speech
on religious topics -must be subjected to careful judicial
scrutiny,- ibid., and that the endorsement test supplies
an appropriate standard for that inquiry.

                     II
  Conducting the review of government action required
by the Establishment Clause is always a sensitive
matter.  Unfortunately, as I noted in Allegheny, -even
the development of articulable standards and guidelines
has not always resulted in agreement among the
Members of this Court on the results in individual
cases.-  492 U. S., at 623.  Today, Justice Stevens
reaches a different conclusion regarding whether the
Board's decision to allow respondents' display on Capitol
Square constituted an impermissible endorsement of the
cross' religious message.  Yet I believe it is important to
note that we have not simply arrived at divergent
results after conducting the same analysis.  Our funda-
mental point of departure, it appears, concerns the
knowledge that is properly attributed to the test's
-reasonable observer [who] evaluates whether a chal-
lenged governmental practice conveys a message of
endorsement of religion.-  Id., at 630 (O'Connor, J.,
concurring in part and concurring in judgment).  In my
view, proper application of the endorsement test requires
that the reasonable observer be deemed more informed
than the casual passerby postulated by the dissent.
  Because an Establishment Clause violation must be
moored in government action of some sort, and because
our concern is with the political community writ large,
see Allegheny, supra, at 627 (O'Connor, J., concurring
in part and concurring in judgment); Lynch, 465 U. S.,
at 690, the endorsement inquiry is not about the
perceptions of particular individuals or saving isolated
non-adherents from the discomfort of viewing symbols of
a faith to which they do not subscribe.  Indeed, to avoid
-entirely sweep[ing] away all government recognition and
acknowledgment of the role of religion in the lives of our
citizens,- Allegheny, supra, at 623 (O'Connor, J.,
concurring in part and concurring in judgment), our
Establishment Clause jurisprudence must seek to
identify the point at which the government becomes
responsible, whether due to favoritism toward or disre-
gard for the evident effect of religious speech, for the
injection of religion into the political life of the citizenry.
  I therefore disagree that the endorsement test should
focus on the actual perception of individual observers,
who naturally have differing degrees of knowledge. 
Under such an approach, a religious display is neces-
sarily precluded so long as some passersby would per-
ceive a governmental endorsement thereof.  In my view,
however, the endorsement test creates a more collective
standard to gauge -the `objective' meaning of the
[government's] statement in the community,- Lynch,
supra, at 690 (O'Connor, J., concurring).  In this
respect, the applicable observer is similar to the -reason-
able person- in tort law, who -is not to be identified
with any ordinary individual, who might occasionally do
unreasonable things- but is -rather a personification of
a community ideal of reasonable behavior, determined by
the [collective] social judgment.-  W. Keeton et al.,
Prosser and Keeton on The Law of Torts 175 (5th ed.
1984).  Thus, -we do not ask whether there is any
person who could find an endorsement of religion,
whether some people may be offended by the display, or
whether some reasonable person might think [the State]
endorses religion.-  Americans United, 980 F. 2d, at
1544.  Saying that the endorsement inquiry should be
conducted from the perspective of a hypothetical observer
who is presumed to possess a certain level of informa-
tion that all citizens might not share neither chooses the
perceptions of the majority over those of a -reasonable
non-adherent,- cf. L. Tribe, American Constitutional Law
1293 (2d ed. 1988), nor invites disregard for the values
the Establishment Clause was intended to protect.  It
simply recognizes the fundamental difficulty inherent in
focusing on actual people: there is always someone who,
with a particular quantum of knowledge, reasonably
might perceive a particular action as an endorsement of
religion.  A State has not made religion relevant to
standing in the political community simply because a
particular viewer of a display might feel uncomfortable.
  It is for this reason that the reasonable observer in
the endorsement inquiry must be deemed aware of the
history and context of the community and forum in
which the religious display appears.  As I explained in
Allegheny, -the `history and ubiquity' of a practice is
relevant because it provides part of the context in which
a reasonable observer evaluates whether a challenged
governmental practice conveys a message of endorsement
of religion.-  492 U. S., at 630.  Nor can the knowledge
attributed to the reasonable observer be limited to the
information gleaned simply from viewing the challenged
display.  Today's proponents of the endorsement test all
agree that we should attribute to the observer knowl-
edge that the cross is a religious symbol, that Capitol
Square is owned by the State, and that the large
building nearby is the seat of state government.  See
post, at 10-11 (Souter, J., concurring in part and
concurring in judgment); post, at 11 (Stevens, J.,
dissenting).  In my view, our hypothetical observer also
should know the general history of the place in which
the cross is displayed.  Indeed, the fact that Capitol
Square is a public park that has been used over time by
private speakers of various types is as much a part of
the display's context as its proximity to the Ohio
Statehouse.  Cf. Allegheny, 492 U. S., at 600, n. 50
(noting that -[t]he Grand Staircase does not appear to be
the kind of location in which all were free to place their
displays for weeks at a time . . .-).  This approach does
not require us to assume an -`ultra-reasonable observer'
who understands the vagaries of this Court's First
Amendment jurisprudence,- post, at 12 (Stevens, J.,
dissenting).  An informed member of the community will
know how the public space in question has been used in
the past-and it is that fact, not that the space may
meet the legal definition of a public forum, which is
relevant to the endorsement inquiry.
  The dissent's property-based argument fails to give
sufficient weight to the fact that the cross at issue here
was displayed in a forum traditionally open to the
public.  -The very fact that a sign is installed on public
property,- the dissent suggests, -implies official approval
of its message.-  Post, at 6.  While this may be the case
where a government building and its immediate curti-
lage are involved, it is not necessarily so with respect to
those -places which by long tradition or by government
fiat have been devoted to assembly and debate, . . .
[particularly] streets and parks which `have immemori-
ally been held in trust for the use of the public and,
time out of mind, have been used for purposes of as-
sembly, communicating thoughts between citizens, and
discussing public questions.'-  Perry Ed. Assn. v. Perry
Local Educators' Assn., 460 U. S. 37, 45 (1983) (quoting
Hague v. Committee for Industrial Organization, 307
U. S. 496, 515 (1939)).  To the extent there is a pre-
sumption that -structures on government property-and,
in particular, in front of buildings plainly identified with
the State-imply state approval of their message,- post,
at 9 (Stevens, J., dissenting), that presumption can be
rebutted where the property at issue is a forum histori-
cally available for private expression.  The reasonable
observer would recognize the distinction between speech
the government supports and speech that it merely
allows in a place that traditionally has been open to a
range of private speakers accompanied, if necessary, by
an appropriate disclaimer.
  In this case, I believe, the reasonable observer would
view the Klan's cross display fully aware that Capitol
Square is a public space in which a multiplicity of
groups, both secular and religious, engage in expressive
conduct.  It is precisely this type of knowledge that we
presumed in Lamb's Chapel, 508 U. S., at ___ (slip op.,
at 10), and in Mergens, 496 U. S., at 250 (plurality
opinion).  Moreover, this observer would certainly be
able to read and understand an adequate disclaimer,
which the Klan had informed the State it would include
in the display at the time it applied for the permit, see
App. to Pet. for Cert. A-15 to A-16; post, at 11, n. 1
(Souter, J., concurring in part and concurring in
judgment), and the content of which the Board could
have defined as it deemed necessary as a condition of
granting the Klan's application.  Cf. American Civil
Liberties Union v. Wilkinson, 895 F. 2d 1098, 1104-1106
(CA6 1990).  On the facts of this case, therefore, I
conclude that the reasonable observer would not inter-
pret the State's tolerance of the Klan's private religious
display in Capitol Square as an endorsement of religion.

                     III
  -To be sure, the endorsement test depends on a
sensitivity to the unique circumstances and context of a
particular challenged practice and, like any test that is
sensitive to context, it may not always yield results with
unanimous agreement at the margins.-  Allegheny, 492
U. S., at 629 (O'Connor, J., concurring in part and
concurring in judgment).  In my view, however, this
flexibility is a virtue and not a vice; -courts must keep
in mind both the fundamental place held by the Estab-
lishment Clause in our constitutional scheme and the
myriad, subtle ways in which Establishment Clause
values can be eroded,- Lynch, 465 U. S., at 694
(O'Connor, J., concurring).
  I agree that -compliance with the Establishment
Clause is a state interest sufficiently compelling to
justify content-based restrictions on speech.-  Ante, at 6. 
The Establishment Clause -prohibits government from
appearing to take a position on questions of religious
belief or from `making adherence to a religion relevant
in any way to a person's standing in the political
community.'-  Allegheny, supra, at 593-594 (quoting
Lynch, supra, at 687 (O'Connor, J., concurring)). 
Because I believe that, under the circumstances at issue
here, allowing the Klan cross, along with an adequate
disclaimer, to be displayed on Capitol Square presents
no danger of doing so, I conclude that the State has not
presented a compelling justification for denying respond-
ents their permit.