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

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 endorse-
ment 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 endorse-
ment test, not previously recognized and out of square
with our precedents.

                      I
  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 intelli-
gent 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 spon-
sored, 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 cr-che . . . 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 fore-
most, 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 percep-
tions matter.

                     II
  In Allegheny County, the Court alluded to two ele-
ments 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 endorse-
ment 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) (empha-
sis 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 -expres-
sion 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., concur-
ring 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 judg-
ment 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 Chris-
tian 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 Alle-
gheny 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 Estab-
lishment 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 govern-
ment practice must be judged in its unique circum-
stances to determine whether it constitutes an endorse-
ment 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 disassoci-
ate itself from any religious message, 496 U. S., at 251
(-[N]o school officials actively participate- in the reli-
gious 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 what-
ever 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 . . . discrim-
inat[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 Univer-
sity 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] domi-
nate [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 embarrass-
ment than suspicion of endorsement, the opportunity for
the latter is clear.

                     III
  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 State-
house, 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 Establish-
ment 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 negotia-
tion.-  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 ques-
tions 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.