The petitioner challenged that state action when, pursuant to a religiously neutral state policy, the State permitted a private party to display an unattended religious symbol in a traditional public forum located next to its seat of government?.
Religious expression cannot violate the Establishment Clause where it is purely private and occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.
Capitol Square is a 10-acre, state-owned plaza surrounding the Statehouse in Columbus, Ohio. For over a century the square has been used for public speeches, gatherings, and festivals advocating and celebrating a variety of causes, both secular and religious. The Ohio statute makes the square available for use by the public for free discussion of public questions. To use the square, a group must simply fill out an official application form and meet several criteria, which concern primarily safety, sanitation, and non-interference with other uses of the square, and which are neutral as to the speech content of the proposed event. The Board received an application from respondent Donnie Carr, an officer of the Ohio Ku Klux Klan, to place a cross on the square for fifteen days. The Board denied that application, the decision which was made upon the advice of counsel, in a good faith attempt to comply with the Ohio and the U.S. Constitutions.
Does a State violate the Establishment Clause when, pursuant to a religiously neutral state policy, it permits a private party to display an unattended religious symbol in a traditional public forum located next to its seat of government?
Yes, because the religious expression here was purely private and occurred in a traditional or designated public forum, publicly announced and open to all on equal terms. Therefore, the State may not bar respondents’ cross from Capitol Square.
The Establishment Clause should be construed to create a strong presumption against the installation of unattended religious symbols on public property. If the State allows such stationary displays in front of its seat of government, viewers will reasonably assume that it approves of them.
The endorsement test necessarily focuses upon the perception of a reasonable, informed observer. The presence of a sign disclaiming government sponsorship or endorsement on the Klan cross helps remove doubt about State approval of respondents’ religious message. When the reasonable observer would view a government practice as endorsing religion, it is the Court’s duty to hold the practice invalid. The reasonable observer is deemed more informed than the casual passerby.
The endorsement of religion alleged by the petitioner is not restricted to squares in front of state capitols. To require and permit access by a religious group, it was sufficient that the group’s activity was not in fact government sponsored, that the event was open to the public, and that the benefit of the facilities was shared by various organizations. Petitioner’s argument would require school districts adopting similar policies in the future to guess whether some undetermined critical mass of the community might nonetheless perceive the district to be advocating a religious viewpoint. If Ohio is concerned about misperceptions, nothing prevents it from requiring all private displays in the square to be identified as such. That would be a content-neutral manner restriction which is assuredly constitutional. 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.