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Capitol Square Review and Advisory Board v. Pinette

    Brief Fact Summary. This case arises from a suit filed by the Respondents, Pinette and other members of the Ohio Ku Klux Klan (Respondents), seeking an injunction requiring the Petitioner, the Capital Square Review and Advisory Board (Petitioner), to allow them to erect a cross on the grounds as it had been traditionally used as a public forum.

    Synopsis of Rule of Law. When a public area rises to the level of a forum, government actors cannot suppress speech by groups on the grounds that it may affect the Establishment Clause, because doing so is an abrogation of the group’s First Amendment freedom of expression.

    Facts. Capital Square (the Square) is a state-owned plaza surrounding the Statehouse in Columbus, Ohio. Over time, the Square came to be known as a public forum, where speakers were allowed to congregate and gatherings held. A policy developed wherein a variety of unattended displays were allowed. Generally, during the holidays the state would light a tree in the Square and a local rabbi would erect a menorah. This case arose from an application to the Petitioner from the Respondents to place a cross on the square during the Christmas season. The Board determined not to allow the cross, because it could be associated with the nearby capital and thereby could be considered an impermissible sanction of religion. The District Court and Court of Appeals granted judgment in favor of the Respondents, the Petitioner Appealed.

    Issue. The issue considered in this case is whether a State violates the Establishment Clause of the United States Constitution (Constitution) when, pursuant to a neutral state policy, it permits a private party to display an unattended religious symbol in a traditional public forum.

    Held. Affirmed.
    Because the Square rose to the level of a public forum, the State was disallowed from banning private religious speech on the grounds that it may be misperceived as State-Sanctioned.

    Dissent. Justice John Paul Stevens (J. Stevens) dissented, maintaining that the religious display could violate the Establishment Clause of the Constitution (Constitution) if the reasonable observer would attribute its message to the state. Justice Ruth Bader Ginsburg (J. Ginsburg) took this dissent further, noting that if the aim of the Establishment Clause was to further divide church and state, a Court should not order the State to display religious symbols.
    Concurrence. In their concurrences, Justices David Souter (J. Souter) and Sandra Day O’Connor (J. O’Connor) both noted that when an intelligent observer could mistake a private, unattended religious display as governmental speech, measures should be taken to insure that the observer is made aware of its mistake. (i.e., a strategically placed sign could serve the purposes of the State in maintaining its separation from the church.)

    Discussion. This case does not serve to abrogate the Establishment Clause, but it does hold that it may be secondary to the First Amendment rights of a group seeking to exercise its own expression in a public forum.


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