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 Stevens, dissenting.
  The Establishment Clause should be construed to
create a strong presumption against the installation of
unattended religious symbols on public property. 
Although the State of Ohio has allowed Capitol Square,
the area around the seat of its government, to be used
as a public forum, and although it has occasionally
allowed private groups to erect other sectarian displays
there, neither fact provides a sufficient basis for rebut-
ting that presumption.  On the contrary, the sequence of
sectarian displays disclosed by the record in this case
illustrates the importance of rebuilding the -wall of
separation between church and State- that Jefferson
envisioned.

                      I
  At issue in this case is an unadorned Latin cross,
which the Ku Klux Klan placed, and left unattended, on
the lawn in front of the Ohio State Capitol.  The Court
decides this case on the assumption that the cross was
a religious symbol.  I agree with that assumption
notwithstanding the hybrid character of this particular
object.  The record indicates that the -Grand Titan of
the Knights of the Ku Klux Klan for the Realm of Ohio-
applied for a permit to place a cross in front of the
State Capitol because -the Jews- were placing a -symbol
for the Jewish belief- in the Square.  App. 173.  Some
observers, unaware of who had sponsored the cross, or
unfamiliar with the history of the Klan and its reaction
to the menorah, might interpret the Klan's cross as an
inspirational symbol of the crucifixion and resurrection
of Jesus Christ.  More knowledgeable observers might
regard it, given the context, as an anti-semitic symbol of
bigotry and disrespect for a particular religious sect. 
Under the first interpretation, the cross is plainly a
religious symbol.  Under the second, an icon of intoler-
ance expressing an anti-clerical message should also be
treated as a religious symbol because the Establishment
Clause must prohibit official sponsorship of irreligious as
well as religious messages.  See Wallace v. Jaffree, 472
U. S. 38, 52 (1985).  This principle is no less binding if
the anti-religious message is also a bigoted message. 
See United States v. Ballard, 322 U. S. 78, 86-89 (1944)
(government lacks power to judge truth of religious
beliefs); Watson v. Jones, 13 Wall. 679, 728 (1872) (-The
law knows no heresy, and is committed to the support
of no dogma, the establishment of no sect-).
  Thus, while this unattended, freestanding wooden
cross was unquestionably a religious symbol, observers
may well have received completely different messages
from that symbol.  Some might have perceived it as a
message of love, others as a message of hate, still others
as a message of exclusion-a Statehouse sign calling
powerfully to mind their outsider status.  In any event,
it was a message that the State of Ohio may not
communicate to its citizens without violating the
Establishment Clause.

                     II
  The plurality does not disagree with the proposition
that the State may not espouse a religious message. 
Ante, at 10.  It concludes, however, that the State has
not sent such a message; it has merely allowed others
to do so on its property.  Thus, the State has provided
an -incidental benefit- to religion by allowing private
parties access to a traditional public forum.  See ante,
at 10.  In my judgment, neither precedent nor respect
for the values protected by the Establishment Clause
justifies that conclusion.
  The Establishment Clause, -at the very least, 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.'-  County of Allegheny v.
American Civil Liberties Union, Greater Pittsburgh
Chapter, 492 U. S. 573, 593-594 (1989), quoting Lynch
v. Donnelly, 465 U. S. 668, 687 (1984) (O'Connor, J.,
concurring).  At least when religious symbols are
involved, the question of whether the state is -appearing
to take a position- is best judged from the standpoint of
a -reasonable observer.-  It is especially important to
take account of the perspective of a reasonable observer
who may not share the particular religious belief it
expresses.  A paramount purpose of the Establishment
Clause is to protect such a person from being made to
feel like an outsider in matters of faith, and a stranger
in the political community.  Ibid.  If a reasonable person
could perceive a government endorsement of religion
from a private display, then the State may not allow its
property to be used as a forum for that display.  No less
stringent rule can adequately protect non-adherents from
a well-grounded perception that their sovereign supports
a faith to which they do not subscribe.
  In determining whether the State's maintenance of the
Klan's cross in front of the Statehouse conveyed a
forbidden message of endorsement, we should be mindful
of the power of a symbol standing alone and unex-
plained.  Even on private property, signs and symbols
are generally understood to express the owner's views. 
The location of the sign is a significant component of the
message it conveys.
     -Displaying a sign from one's own residence often
carries a message quite distinct from placing the
same sign someplace else, or conveying the same
text or picture by other means.  Precisely because of
their location, such signs provide information about
the identity of the `speaker.'  As an early and
eminent student of rhetoric observed, the identity of
the speaker is an important component of many
attempts to persuade.  A sign advocating `Peace in
the Gulf' in the front lawn of a retired general or
decorated war veteran may provoke a different
reaction than the same sign in a 10-year-old child's
bedroom window or the same message on a bumper
sticker of a passing automobile.  An espousal of
socialism may carry different implications when
displayed on the grounds of a stately mansion than
when pasted on a factory wall or an ambulatory
sandwich board.-  City of Ladue v. Gilleo, 512 U. S.
___, ___ (1994) (slip op., at 13-14) (footnote omitted). 
Like other speakers, a person who places a sign on her
own property has the autonomy to choose the content of
her own message.  Cf. McIntyre v. Ohio Elections
Comm'n, 514 U. S. ___, ___ (1995) (slip op., at 7).  Thus,
the location of a stationary, unattended sign generally is
both a component of its message and an implicit en-
dorsement of that message by the party with the power
to decide whether it may be conveyed from that
location.
  So it is with signs and symbols left to speak for
themselves on public property.  The very fact that a sign
is installed on public property implies official recognition
and reinforcement of its message.  That implication is
especially strong when the sign stands in front of the
seat of the government itself.  The -reasonable observer-
of any symbol placed unattended in front of any capitol
in the world will normally assume that the
sovereign-which is not only the owner of that parcel of
real estate but also the lawgiver for the surrounding
territory-has sponsored and facilitated its message.
  That the State may have granted a variety of groups
permission to engage in uncensored expressive activities
in front of the capitol building does not, in my opinion,
qualify or contradict the normal inference of endorse-
ment that the reasonable observer would draw from the
unattended, freestanding sign or symbol.  Indeed,
parades and demonstrations at or near the seat of
government are often exercises of the right of the people
to petition their government for a redress of grievan-
ces-exercises in which the government is the recipient
of the message rather than the messenger.  Even when
a demonstration or parade is not directed against
government policy, but merely has made use of a
particularly visible forum in order to reach as wide an
audience as possible, there usually can be no mistake
about the identity of the messengers as persons other
than the State.  But when a statue or some other free-
standing, silent, unattended, immoveable struc-
ture-regardless of its particular message-appears on
the lawn of the Capitol building, the reasonable observer
must identify the State either as the messenger, or, at
the very least, as one who has endorsed the message. 
Contrast, in this light, the image of the cross standing
alone and unattended, see infra, at 22, and the image
the observer would take away were a hooded Klansman
holding, or standing next to, the very same cross.
  This Court has never held that a private party has a
right to place an unattended object in a public forum. 
Today the Court correctly recognizes that a State may
impose a ban on all private unattended displays in such
a forum, ante, at 5-6.  This is true despite the fact that
our cases have condemned a number of laws that
foreclose an entire medium of expression, even in places
where free speech is otherwise allowed.  The First
Amendment affords protection to a basic liberty: -the
freedom of speech- that an individual may exercise when
using the public streets and parks.  Hague v. Committee
for Industrial Organization, 307 U. S. 496, 515-516
(1939) (opinion of Roberts, J.).  The Amendment,
however, does not destroy all property rights.  In
particular, it does not empower individuals to erect
structures of any kind on public property.  City Council
of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789,
814 (1984); see also Clark v. Community for Creative
Non-Violence, 468 U. S. 288 (1984).  Thus our cases
protecting the individual's freedom to engage in commu-
nicative conduct on public property (whether by speak-
ing, parading, handbilling, waving a flag, or carrying a
banner), e.g., Lovell v. Griffin, 303 U. S. 444 (1938), or
to send messages from her own property by placing a
sign in the window of her home, City of Ladue v. Gilleo,
512 U. S., at ___, do not establish the right to implant
a physical structure (whether a campaign poster, a
burning cross, or a statue of Elvis Presley) on public
property.  I think the latter -right,- which creates a far
greater intrusion on government property and interferes
with the Government's ability to differentiate its own
message from those of public individuals, does not
exist.
  Because structures on government property-and, in
particular, in front of buildings plainly identified with
the state-imply state approval of their message, the
Government must have considerable leeway, outside of
the religious arena, to choose what kinds of displays it
will allow and what kinds it will not.  Although the
First Amendment requires the Government to allow
leafletting or demonstrating outside its buildings, the
state has greater power to exclude unattended symbols
when they convey a type of message with which the
state does not wish to be identified.  I think it obvious,
for example, that Ohio could prohibit certain categories
of signs or symbols in Capitol Square-erotic exhibits,
commercial advertising, and perhaps campaign posters
as well-without violating the Free Speech Clause. 
Moreover, our -public forum- cases do not foreclose
public entities from enforcing prohibitions against all
unattended displays in public parks, or possibly even
limiting the use of such displays to the communication
of non-controversial messages.  Such a limitation
would not inhibit any of the traditional forms of expres-
sion that have been given full constitutional protection
in public fora.
 The State's general power to restrict the types of
unattended displays does not alone suffice to decide this
case, because Ohio did not profess to be exercising any
such authority.  Instead, the Capitol Square Review
Board denied a permit for the cross because it believed
the Establishment Clause required as much, and we
cannot know whether the Board would have denied the
permit on other grounds.  App. 91-92, 169.  Accordingly,
we must evaluate the State's rationale on its own
terms.  But in this case, the endorsement inquiry under
the Establishment Clause follows from the State's power
to exclude unattended private displays from public
property.  Just as the Constitution recognizes the
State's interest in preventing its property from being
used as a conduit for ideas it does not wish to give the
appearance of ratifying, the Establishment Clause pro-
hibits government from allowing, and thus endorsing,
unattended displays that take a position on a religious
issue.  If the State allows such stationary displays in
front of its seat of government, viewers will reasonably
assume that it approves of them.  As the picture ap-
pended to this opinion demonstrates, infra, at 22, a
reasonable observer would likely infer endorsement from
the location of the cross erected by the Klan in this
case.  Even if the disclaimer at the foot of the cross
(which stated that the cross was placed there by a
private organization) were legible, that inference would
remain, because a property owner's decision to allow a
third party to place a sign on her property conveys the
same message of endorsement as if she had erected it
herself.
 When the message is religious in character, it is a
message the state can neither send nor reinforce with-
out violating the Establishment Clause.  Accordingly, I
would hold that the Constitution generally forbids the
placement of a symbol of a religious character in, on, or
before a seat of government.

                     III
 The Court correctly acknowledges that the state's duty
to avoid a violation of the Establishment Clause can
justify a content-based restriction on speech or expres-
sion, even when that restriction would otherwise be
prohibited by the Free Speech Clause.  Ante, at 6; ante,
at 13 (opinion of O'Connor, J.).  The plurality asserts,
however, that government cannot be perceived to be
endorsing a religious display when it merely accords
that display -the same access to a public forum that all
other displays enjoy.-  Ante, at 8.  I find this argument
unpersuasive.
 The existence of a -public forum- in itself cannot
dispel the message of endorsement.  A contrary argu-
ment would assume an -ultra-reasonable observer- who
understands the vagaries of this Court's First Amend-
ment jurisprudence.  I think it presumptuous to con-
sider such knowledge a precondition of Establishment
Clause protection.  Many (probably most) reasonable
people do not know the difference between a -public
forum,- a -limited public forum,- and a -non-public
forum.-  They do know the difference between a state
capitol and a church.  Reasonable people have differing
degrees of knowledge; that does not make them -`ob-
tuse,'- see 30 F. 3d 675, 679 (CA6 1994) (quoting Doe v.
Small, 964 F. 2d 611, 630 (CA7 1992) (Easterbrook, J.,
concurring)); nor does it make them unworthy of consti-
tutional protection.  It merely makes them human.  For
a religious display to violate the Establishment Clause,
I think it is enough that some reasonable observers
would attribute a religious message to the State.
 The plurality appears to rely on the history of this
particular public forum-specifically, it emphasizes that
Ohio has in the past allowed three other private unat-
tended displays.  Even if the State could not reasonably
have been understood to endorse the prior displays, I
would not find this argument convincing, because it
assumes that all reasonable viewers know all about the
history of Capitol Square-a highly unlikely supposi-
tion.  But the plurality's argument fails on its own
terms, because each of the three previous displays con-
veyed the same message of approval and endorsement
that this one does.
 Most significant, of course, is the menorah that stood
in Capitol Square during Chanukah.  The display of
that religious symbol should be governed by the same
rule as the display of the cross.  In my opinion, both
displays are equally objectionable.  Moreover, the fact
that the State has placed its stamp of approval on two
different religions instead of one only compounds the
constitutional violation.  The Establishment Clause does
not merely prohibit the State from favoring one religious
sect over others.  It also proscribes state action support-
ing the establishment of a number of religions, as
well as the official endorsement of religion in preference
to nonreligion.  Wallace v. Jaffree, 472 U. S., at 52-55. 
The State's prior approval of the pro-religious message
conveyed by the menorah is fully consistent with its
endorsement of one of the messages conveyed by the
cross: -The State of Ohio favors religion over irreligion.- 
This message is incompatible with the principles embod-
ied by our Establishment Clause.
 The record identifies two other examples of free-
standing displays that the State previously permitted
in Capitol Square: a -United Way Campaign `thermom-
eter,'- and -craftsmen's booths and displays erected dur-
ing an Arts Festival.-  App. to Pet. for Cert. A-16. 
Both of those examples confirm the proposition that a
reasonable observer should infer official approval of the
message conveyed by a structure erected in front of the
Statehouse.  Surely the thermometer suggested that the
State was encouraging passersby to contribute to the
United Way.  It seems equally clear that the State was
endorsing the creativity of artisans and craftsmen by
permitting their booths to occupy a part of the Square. 
Nothing about either of those freestanding displays
contradicts the normal inference that the State has
endorsed whatever message might be conveyed by per-
mitting an unattended symbol to adorn the Capitol
grounds.  Accordingly, the fact that the menorah, and
later the cross, stood in an area available -`for free dis-
cussion of public questions, or for activities of a broad
public purpose,'- Ohio Rev. Code Ann. 105.41 (1994),
quoted ante, at 1-2, is fully consistent with
the conclusion that the State sponsored those religious
symbols.  They, like the thermometer and the booths,
were displayed in a context that connotes state
approval.
 This case is therefore readily distinguishable from
Widmar v. Vincent, 454 U. S. 263 (1981), and Lamb's
Chapel v. Center Moriches Union Free School Dist., 508
U. S. ___ (1993).  In both of those cases, as we made
perfectly clear, there was no danger of incorrect identifi-
cation of the speakers and no basis for inferring that
their messages had been endorsed by any public entity. 
As we explained in the later case:
-Under these circumstances, as in Widmar, there
would have been no realistic danger that the com-
munity would think that the District was endorsing
religion or any particular creed, and any benefit to
religion or to the Church would have been no more
than incidental.  As in Widmar, supra, at 271-272,
permitting District property to be used to exhibit
the film involved in this case would not have been
an establishment of religion under the three-part
test articulated in Lemon v. Kurtzman, 403 U. S.
602 (1971): The challenged governmental action has
a secular purpose, does not have the principal or
primary effect of advancing or inhibiting religion,
and does not foster an excessive entanglement with
religion.-  Id., at ___ (slip op., at 10) (footnote
omitted).
 In contrast, the installation of the religious symbols in
Capitol Square quite obviously did -have the principal
or primary effect of advancing or inhibiting religion-;
indeed, no other effect is even suggested by the record. 
The primary difference is that in this case we are deal-
ing with a visual display-a symbol readily associated
with a religion, in a venue readily associated with the
State.  This clear image of endorsement was lacking in
Widmar and Lamb's Chapel, in which the issue was
access to government facilities.  Moreover, there was no
question in those cases of an unattended display; pri-
vate speakers, who could be distinguished from the
state, were present.  See supra, at 6-7.  Endorsement
might still be present in an access case if, for example,
the religious group sought the use of the roof of a pub-
lic building for an obviously religious ceremony, where
many onlookers might witness that ceremony and con-
nect it to the State.  But no such facts were alleged in
Widmar or Lamb's Chapel.  The religious practices in
those cases were simply less obtrusive, and less likely to
send a message of endorsement, than the eye-catching
symbolism at issue in this case.
 The battle over the Klan cross underscores the power
of such symbolism.  The menorah prompted the Klan to
seek permission to erect an anti-semitic symbol, which
in turn not only prompted vandalism but also motivated
other sects to seek permission to place their own sym-
bols in the Square.  These facts illustrate the potential
for insidious entanglement that flows from state-
endorsed proselytizing.  There is no reason to believe
that a menorah placed in front of a synagogue would
have motivated any reaction from the Klan, or that a
Klan cross placed on a Klansman's front lawn would
have produced the same reaction as one that enjoyed
the apparent imprimatur of the State of Ohio.  Nor is
there any reason to believe the placement of the dis-
plays in Capitol Square had any purpose other than to
connect the State-though perhaps against its will-to
the religious or anti-religious beliefs of those who placed
them there.  The cause of the conflict is the State's
apparent approval of a religious or anti-religious mes-
sage.  Our Constitution wisely seeks to minimize
such strife by forbidding state-endorsed religious
activity.

                     IV
 Conspicuously absent from the plurality's opinion is
any mention of the values served by the Establishment
Clause.  It therefore seems appropriate to repeat a
portion of a Court opinion authored by Justice Black
who, more than any other Justice in the Court's history,
espoused a literal interpretation of constitutional text:
     -A large proportion of the early settlers of this
country came here from Europe to escape the bond-
age of laws which compelled them to support and
attend government-favored churches.  The centuries
immediately before and contemporaneous with the
colonization of America had been filled with turmoil,
civil strife, and persecutions, generated in large part
by established sects determined to maintain their
absolute political and religious supremacy.  With
the power of government supporting them, at vari-
ous times and places, Catholics had persecuted
Protestants, Protestants had persecuted Catholics,
Protestant sects had persecuted other Protestant
sects, Catholics of one shade of belief had perse-
cuted Catholics of another shade of belief, and all of
these had from time to time persecuted Jews.  In
efforts to force loyalty to whatever religious group
happened to be on top and in league with the gov-
ernment of a particular time and place, men and
women had been fined, cast in jail, cruelly tortured,
and killed.  Among the offenses for which these
punishments had been inflicted were such things as
speaking disrespectfully of the views of ministers of
government-established churches, non-attendance at
those churches, expressions of non-belief in their
doctrines, and failure to pay taxes and tithes to
support them.
     -These practices of the old world were trans-
planted to and began to thrive in the soil of the
new America.  The very charters granted by the
English Crown to the individuals and companies
designated to make the laws which would control
the destinies of the colonials authorized these indi-
viduals and companies to erect religious establish-
ments which all, whether believers or non-believers,
would be required to support and attend.  An exer-
cise of this authority was accompanied by a repeti-
tion of many of the old-world practices and persecu-
tions.  Catholics found themselves hounded and
proscribed because of their faith; Quakers who fol-
lowed their conscience went to jail; Baptists were
peculiarly obnoxious to certain dominant Protestant
sects; men and women of varied faiths who hap-
pened to be in a minority in a particular locality
were persecuted because they steadfastly persisted
in worshipping God only as their own consciences
dictated.  And all of these dissenters were compelled
to pay tithes and taxes to support government-spon-
sored churches whose ministers preached inflamma-
tory sermons designed to strengthen and consolidate
the established faith by generating a burning hatred
against dissenters.
          .       .      .      .      .
     -The `establishment of religion' clause of the First
Amendment means at least this: Neither a state nor
the Federal Government can set up a church.  Nei-
ther can pass laws which aid one religion, aid all
religions, or prefer one religion over another.  Nei-
ther can force nor influence a person to go to or to
remain away from church against his will or force
him to profess a belief or disbelief in any religion. 
. . .  Neither a state nor the Federal Government
can, openly or secretly, participate in the affairs of
any religious organizations or groups and vice versa. 
In the words of Jefferson, the clause against estab-
lishment of religion by law was intended to erect `a
wall of separation between church and State.'- 
Everson v. Board of Ed. of Ewing, 330 U. S. 1,
8-10, 15, 16 (1947) (footnotes and citation omitted).
 In his eloquent dissent in that same case, Justice
Jackson succinctly explained- 
-that the effect of the religious freedom Amendment
to our Constitution was to take every form of propa-
gation of religion out of the realm of things which
could directly or indirectly be made public business
. . . .  It was intended not only to keep the states'
hands out of religion, but to keep religion's hands
off the state, and, above all, to keep bitter religious
controversy out of public life . . . .-  Id., at 26-27.
 The wrestling over the Klan cross in Capitol Square is
far removed from the persecution that motivated Wil-
liam Penn to set sail for America, and the issue
resolved in Everson is quite different from the controver-
sy over symbols that gave rise to this litigation. 
Nevertheless the views expressed by both the majority
and the dissenters in that landmark case counsel cau-
tion before approving the order of a federal judge com-
manding a State to authorize the placement of free-
standing religious symbols in front of the seat of its
government.  The Court's decision today is unprecedent-
ed.  It entangles two sovereigns in the propagation of
religion, and it disserves the principle of tolerance that
underlies the prohibition against state action -respecting
an establishment of religion.-
 I respectfully dissent.

APPENDIX TO OPINION OF STEVENS, J.