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 Ginsburg, dissenting.
  We confront here, as Justices O'Connor and Souter
point out, a large Latin cross that stood alone and
unattended in close proximity to Ohio's Statehouse.  See
ante, at 5-6 (O'Connor, J., concurring in part and
concurring in judgment); ante, at 10-11 (Souter, J.,
concurring in part and concurring in judgment).  Near
the stationary cross were the government's flags and the
government's statues.  No human speaker was present
to disassociate the religious symbol from the State.  No
other private display was in sight.  No plainly visible
sign informed the public that the cross belonged to the
Klan and that Ohio's government did not endorse the
display's message.
  If the aim of the Establishment Clause is genuinely to
uncouple government from church, see Everson v. Board
of Ed. of Ewing, 330 U. S. 1, 16 (1947), a State may not
permit, and a court may not order, a display of this
character.  Cf. Sullivan, Religion and Liberal Democracy,
59 U. Chi. L. Rev. 195, 197-214 (1992) (negative bar
against establishment of religion implies affirmative
establishment of secular public order).  Justice Souter,
in the final paragraphs of his opinion, suggests two
arrangements that might have distanced the State from
-the principal symbol of Christianity around the world,-
see ante, at 10: a sufficiently large and clear disclaimer,
ante, at 11-12; or an area reserved for unattended dis-
plays carrying no endorsement from the State, a space
plainly and permanently so marked.  Ante, at 12-13. 
Neither arrangement is even arguably present in this
case.  The District Court's order did not mandate a
disclaimer.  See App. to Pet. for Cert. A26 (-Plaintiffs
are entitled to an injunction requiring the defendants to
issue a permit to erect a cross on Capitol Square-).  And
the disclaimer the Klan appended to the foot of the
cross was unsturdy: it did not identify the Klan as
sponsor; it failed to state unequivocally that Ohio did
not endorse the display's message; and it was not shown
to be legible from a distance.  The relief ordered by the
District Court thus violated the Establishment Clause.
  Whether a court order allowing display of a cross, but
demanding a sturdier disclaimer, could withstand
Establishment Clause analysis is a question more
difficult than the one this case poses.  I would reserve
that question for another day and case.  But I would not
let the prospect of what might have been permissible
control today's decision on the constitutionality of the
display the District Court's order in fact authorized.  See
ante, at 21 (appendix to dissent of Stevens, J.) (photo-
graph of display).