4/22/22, 12:30 PM Capitol Square Review and Advisory Bd. v.

Pinette - Opinion Announcement - June 29, 1995

Capitol Square Review

and Advisory Bd. v.
Pinette
Opinion Announcement - June 29,
1995
William H. Rehnquist
The opinion of the court in number 94-780, Capitol Square Review and
Advisory Board v. Pinette will be announced by Justice Scalia.

Antonin Scalia
This case comes here on writ of certiorari in United States Court of
Appeals for the Sixth Circuit.

Capitol square is a ten acre plaza surrounding the State Capitol in

Columbus, Ohio.

It is a traditional public forum that for over a century has been used for
public speeches, gatherings and celebrations, both secular and
religious.

State Law gives an agency called the Capitol Square Review and Advisory
Board, the petitioner in this case, responsibility for regulating use of this
square.

In recent years such diverse groups as homosexual rights organization,

the Ku Klux Klan and the United Way have held rallies in the square.

The Board has also permitted a variety of unattended displays, a state-

sponsored lighted tree during the Christmas season, for example, a
privately sponsored menorah during Chanukah, a display showing the
progress of the United Way campaign and booths and exhibits during an
arts festival.

In November 1993, the Board received an application from the Ohio, Ku

Klax Klan to place across on the Square during the Christmas season.

It denied that application on the ground that permitting the display

would violate the establishment clause of the constitution.

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4/22/22, 12:30 PM Capitol Square Review and Advisory Bd. v. Pinette - Opinion Announcement - June 29, 1995

The Ohio Klan through its leader Vincent Pinette, who is the respondent
here, filed the present suit in the United States District Court for the
Southern District of Ohio, seeking an injunction, requiring the Board to
issue the requested permit.

The District Court granted that injunction and the United States Court of
Appeals for the Sixth Circuit affirmed.

We granted the State’s petition for certiorari and we now affirm the
judgment of the Sixth Circuit.

Private religious speech is as fully protected under the Free Speech

Clause as private secular expression.

In a traditional or a designated public forum like capitol square, a state

may regulate expressive content and religious content is at issue here,
only if such a restriction is necessary and narrowly drawn to serve a
compelling state interest.

Petitioners assert only one justification for closing Capitol Square to

respondent’s cross, namely the state’s compelling interest in avoiding
official endorsement of Christianity, as required by the Establishment
Clause.

We find that interest not to be implicated here.

Twice previously in cases called Lamb's Chapel, v. Center Moriches

School District and Widmar v. Vincent, we have addressed the
combination of private religious expression, a forum available for public
use and the state’s interest in complying with the establishment clause.

Both times, we struck down the attempted discriminatory exclusion of

private religious speech.

Petitioners tried to distinguish those cases by arguing the Capitol

Squares’ proximity to the seat of government, may produce the
perception that the cross bears the State’s approval.

They urges to apply the endorsement test used by some of our recent
decision and to find that because an observer seeing across with the
State Capitol behind it, might mistake private expression for officially
endorsed religious expression, the State’s content based restriction of
religious speech is constitutional.

Seven of the Justices reject that conclusion, four because the

endorsement test is not applicable and three because there has been no
endorsement.

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4/22/22, 12:30 PM Capitol Square Review and Advisory Bd. v. Pinette - Opinion Announcement - June 29, 1995

The reminder of my summation refers to the four Justice plurality

opinion in which is I am joined by the Chief Justice, Justice Kennedy and
Justice Thomas, holding that the so called endorsement test does not
apply.

The cases which support the existence of an endorsement test in our

Establishment Clause jurisprudence, involved either religious
expression by the government itself, as in Lynch v. Donnelly which
involved a crèche erected by a municipality or they involved
government action that allegedly discriminated in favor of private
religious expression as in Allegheny County v. ACLU, which involved
preferential placement of a privately constructed crèche on county
property.

This case involves neither government speech nor government favoring

of certain private speech or is it an issue of purely private expression
occurring in a public forum open to all speakers on equal terms.

We have consistently held that it is no violation for government to enact

neutral policies that happen to benefit religion.

Here the only action by the state is the maintenance of Capitol Square as
a public forum with a neutral access policy.

The test petitioner has proposed, would appropriately be called not an

endorsement, but a transferred endorsement test, attributing to a
neutrally behaving government, private religious expression, simply
because some people might mistake it for sectarian government
expression.

Such a test has no antecedent in our jurisprudence and would work

considerable mischief by forcing public officials to guess about the
constitutionality of every proposed active private religious expression in
a public forum.

Moreover since the principal of transformed endorsement cannot be

limited to public forum cases, it would also permit challenges to
perfectly neutral grand programs for example, where participation of
religious groups or entities might create the appearance, though there
is no reality of endorsement.

If the State guesses wrong in one direction, it is guilty of an

Establishment Clause violation.

If in the other, it is liable for suppressing free exercise or free speech a

risk not run when the State restrains only its own expression and not

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private expression, it would be irresponsible to make to make the

nation’s legislatures walk such a minefield.

If Ohio is concerned about misperceptions, nothing prevents it from

requiring all private displays in the square to be identified as such, but
the State may not on the claim of misperception of official
endorsement, ban all private religious speech from the public square or
discriminate against it by requiring religious speech alone to disclaim
public sponsorship.

The plurality thus concludes that religious expression cannot violate the
establishment clause, where one, it is purely private and two, it occurs in
a traditional or designated public forum, publicly announced and open
to all on equal terms.

Those conditions are satisfied here, and therefore, the state may not bar
respondent’s cross from Capitol Square.

Justice Thomas who is one of the plurality has also filed a separate
concurring opinion.

Justice O’Connor has filed an opinion concurring in part and concurring

in the judgment in which Justices Souter and Breyer joined.

Justice Souter has filed an opinion concurring in part and concurring in

the judgment in which Justices O’Connor and Breyer joined.

Justice Stevens has filed a dissenting opinion and Justice Ginsberg has
filed a dissenting opinion.

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