Capitol Square Review and Advisory Board v. Pinette 515 U.S. 753 (1995)

• Author: Geoffrey R. Stone
• Pages: 312-313

Page 312

In this decision, the Supreme Court invalidated an administrative decision that denied permission to the Ku Klux Klan to erect a large, unattended cross in Capitol Square, a PUBLIC FORUM located in front of the Ohio State-house. The administrators had determined that observers might conclude that the state endorsed the religious beliefs embodied in the cross. The Court reasoned that excluding the cross would be consistent with the FREEDOM OF SPEECH guarantee of the FIRST AMENDMENT only if a decision to allow the cross would itself violate the ESTABLISHMENT OF RELIGION clause. The central question was therefore whether the board could constitutionally have permitted the cross to be erected. On this issue, the Court was sharply divided.

In a PLURALITY OPINION, Justice ANTONIN SCALIA, writing for four Justices, argued that the establishment clause is violated in these circumstances only if the government engages in religious expression itself or discriminates in favor of religious expression. Thus, in his view, if the board had "neutrally" permitted all speakers to erect such displays, without regard to their message, its decision to permit a cross as part of that policy would not have violated the establishment clause.

In CONCURRING OPINIONS, Justices SANDRA DAY O'CONNOR, DAVID H. SOUTER, and STEPHEN G. BREYER disagreed with Scalia that the establishment clause could not be violated by "neutral policies that happen to benefit religion." In their view, even neutral policies could violate the establishment clause if the circumstances are such

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"that the community would think that the [State] was endorsing religion." As applied to this case, however, these Justices concluded that this problem was not present...