capitol sq review bd pinette argued april decided june ohio law makes capitol square statehouse plaza columbus forum discussion public questions public activities gives petitioner capitol square review advisory board responsibility regulating access square use square group must simply fill official application form meet several criteria board denied establishment clause grounds application respondent ku klux klan place unattended cross square christmas season klan filed suit district entered injunction requiring issuance requested permit board permitted klan erect cross sixth circuit affirmed judgment adding conflict among courts appeals whether private unattended display religious symbol public forum violates establishment clause held judgment affirmed affirmed justice scalia delivered opinion respect parts ii iii concluding courts addressed establishment clause issue sole question upon certiorari granted consider respondents contention state disapproval klan political views rather desire distance sectarian religion genuine reason disallowing cross display display private religious speech fully protected free speech clause secular private expression page ii see lamb chapel center moriches union free school capitol square traditional public forum board may regulate content klan expression restriction necessary narrowly drawn serve compelling state interest perry ed assn perry local educators pp compliance establishment clause may state interest sufficiently compelling justify restrictions speech see lamb chapel conclusion interest implicated case strongly suggested presence factors considered determinative striking state restrictions religious content lamb chapel widmar vincent cases state sponsor respondents expression expression made government property opened public speech permission requested application process terms required private groups pp justice scalia joined chief justice justice kennedy justice thomas concluded part iv petitioners attempt distinguish case lamb chapel widmar unavailing petitioners argument forum proximity seat government may cause misperception cross bears state approval restriction constitutional endorsement test allegheny county american civil liberties union greater pittsburgh chapter lynch donnelly rejected version test attribute private religious expression neutrally behaving government antecedent establishment clause jurisprudence consistently upheld neutral government policies happen benefit religion tested endorsement subject test either expression government lynch supra else government action alleged discriminate favor private religious expression activity see allegheny county supra difference forbidden government speech endorsing religion protected private speech distinguishes allegheny county lynch widmar lamb chapel distinction disappear private speech conducted close symbols government given traditional designated public forum publicly announced open equal terms well purely private sponsorship religious expression erroneous conclusions state endorsement count see lamb chapel supra widmar supra page iii nothing prevents ohio requiring private displays square identified may claim misperception official endorsement ban private religious speech square discriminate requiring religious speech alone disclaim public sponsorship pp justice joined justice souter justice breyer concluded state presented compelling justification denying respondents permit pp endorsement test supplies appropriate standard determining whether governmental practices relating speech religious topics violate establishment clause even neutral state policy toward private religious speech public forum issue lamb chapel center moriches union free school necessity carve plurality opinion exception test public forum context pp facts case reasonable observer fairly interpret state tolerance klan religious display endorsement religion see lamb chapel supra context reasonable observer personification community ideal reasonable behavior determined collective social judgment whose knowledge limited information gleaned viewing challenged display extends general history place display appears case therefore observer may properly held simply knowledge cross purely religious symbol capitol square owned state seat state government nearby also awareness square public space multiplicity secular religious groups engage expressive conduct well ability read understand disclaimer klan offered include display pp justice souter joined justice justice breyer concluded given available alternatives board claim denial klan application narrowly tailored response necessary ensure state appear take position questions religious belief pp plurality per se rule exception endorsement test previously recognized square precedents plurality admits circumstances intelligent observer reasonably perceive private religious expression public forum imply government endorsement religion perceptions attributed reasonable observer establishment clause page iv analysis decisions see allegheny county american civil liberties union greater pittsburgh chapter concurring part concurring judgment looked specific circumstances private religious speech public forum determine whether realistic danger observer think government endorsing religion see lynch donnelly concurring plurality per se rule handful cases make endorsement test meaningless pp notwithstanding nothing else statehouse lawn suggesting forum open private unattended religious displays flat denial klan application board option protect appearance endorsement either two possibilities better suited requirement board find narrowly drawn alternative perry ed assn perry local educators first board required disclaimer sufficiently large clear preclude reasonable inference cross demonstrated governmental endorsement alternative board instituted policy restricting private unattended displays one area square permanent sign marking area forum private speech carrying state endorsement pp capitol sq review bd pinette justice scalia announced judgment delivered opinion respect parts ii iii opinion respect part iv chief justice justice kennedy justice thomas join establishment clause first amendment made binding upon fourteenth amendment provides government shall make law respecting establishment religion question case whether state violates establishment clause pursuant religiously neutral state policy permits private party display unattended religious symbol traditional public forum located next seat government capitol sq review bd pinette board policy allow broad range speakers gatherings people conduct events capitol square brief petitioner diverse groups homosexual rights organizations ku klux klan way held rallies board also permitted variety unattended displays capitol square lighted tree christmas season menorah chanukah display showing progress way fundraising campaign booths exhibits arts festival although dispute litigation regarding frequency unattended displays district found ample justification policy supp sd ohio november reversing initial decision ban unattended holiday displays square december board authorized state put annual christmas tree november board granted rabbi application erect menorah day board received application respondent donnie carr officer ohio ku klux klan place cross square december december board denied application december informing klan letter decision deny made upon advice counsel good faith attempt comply capitol sq review bd pinette ohio constitutions interpreted relevant decisions federal state courts app two weeks later unsuccessful effort obtain administrative relief board decision ohio klan leader vincent pinette filed present suit district southern district ohio seeking injunction requiring board issue requested permit board defended ground permit violate establishment clause district determined capitol square traditional public forum open without policy displays klan cross entirely private expression entitled full first amendment protection board failed show display cross reasonably construed endorsement christianity state district issued injunction board application emergency stay denied stevens chambers board permitted klan erect cross board received granted several additional applications erect crosses capitol square december january appeal board appeals sixth circuit affirmed district judgment decision agrees ruling eleventh circuit miller disagrees decisions second fourth circuits burlington cert denied kaplan burlington cert denied smith county albemarle cert denied granted certiorari capitol sq review bd pinette ii respondents religious display capitol square private expression precedent establishes private religious speech far first amendment orphan fully protected free speech clause secular private expression lamb chapel center moriches union free school board ed westside community schools dist mergens widmar vincent heffron international soc krishna consciousness capitol sq review bd pinette indeed history least government suppression speech commonly directed precisely religious speech clause without religion hamlet without prince accordingly excluded protections religious proselytizing heffron supra even acts worship widmar supra petitioners dispute respondents displaying cross engaging constitutionally protected expression contend constitutional protection extend length permitting expression made capitol square undeniable course speech constitutionally protected state suppression thereby accorded guaranteed forum property owned state postal service council greenburgh civic perry ed assn perry local educators right use government property one private expression depends upon whether property law tradition given status public forum rather reserved specific official uses cornelius naacp legal defense ed fund former state right limit protected expressive activity sharply circumscribed may impose reasonable time place manner restrictions ban unattended displays exist might one may regulate expressive content restriction necessary narrowly drawn serve compelling state interest perry ed supra strict standards apply since district appeals found capitol square traditional public forum capitol sq review bd pinette petitioners claim denial respondents application based upon time place manner restriction contrary concede indeed essence case board rejected display precisely content religious petitioners advance single justification closing capitol square respondents cross state interest avoiding official endorsement christianity required establishment clause iii lamb chapel school district allowed private groups use school facilities variety civic social recreational purposes excluding however religious purposes held even school property public forum school district violated applicant rights denying use facilities solely religious viewpoint program wished present slip rejected district establishment clause defense made school property open wide variety uses district directly sponsoring religious group capitol sq review bd pinette activity benefit religion church incidental slip lamb chapel reasoning applies fortiori property issue school public forum lamb chapel followed naturally decision widmar examined public university exclusion student religious groups facilities available student groups also addressed official discrimination groups wished use generally open forum religious speech also state claimed compelling interest complying establishment clause justified restriction rejected defense forum created state open broad spectrum groups provide incidental benefit religion stated categorically open forum public university confer imprimatur state approval religious sects practices ibid quite obviously factors considered determinative lamb chapel widmar exist well state sponsor respondents expression expression made government property opened public speech permission requested application process terms required private groups iv capitol sq review bd pinette must note begin really endorsement test sort much less endorsement test appears recent establishment clause jurisprudence petitioners urge upon us endorsement connotes expression demonstration approval support new shorter oxford english dictionary webster new dictionary ed cases accordingly equated endorsement promotion favoritism allegheny county supra citing cases find peculiar say government promotes favors religious display giving access public forum displays enjoy matter establishment clause jurisprudence consistently held violation government enact neutral policies happen benefit religion see bowen kendrick witters washington dept services blind mueller allen mcgowan maryland tested endorsement religion subject test either expression government lynch supra else government action alleged discriminate favor private religious expression activity board ed kiryas joel village school dist grumet slip allegheny county supra test petitioners propose attribute neutrally behaving government private religious expression antecedent jurisprudence better called transferred endorsement test capitol sq review bd pinette petitioners rely heavily allegheny county lynch easily distinguished allegheny county held display creche grand staircase allegheny county courthouse violated establishment clause staircase however open equal basis county favoring sectarian religious expression grand staircase appear kind location free place displays expressly distinguished site kind public forum issue made clear staircase available terms presence creche location six weeks serve associate government creche ibid emphasis added lynch held creche violate establishment clause context display endorse religion opinion assume petitioners contend government use religious symbols unconstitutional effectively endorses sectarian religious belief case neither holds even remotely assumes government private religious expression unconstitutional petitioners argue absence perceived endorsement material lamb chapel widmar state lamb chapel realistic danger community think district endorsing religion particular creed slip conclusion result empirical investigation followed directly thought fact forum open religious activity privately sponsored see ibid significant referred thought community outsiders individual members community uninformed capitol sq review bd pinette school practice surely latter hearing religious ceremonies school premises knowing premises availability use sorts private activities might leap erroneous conclusion state endorsement effect said given open forum private sponsorship erroneous conclusions count also widmar determined benefit religious groups public forum incidental shared groups categorically rejected state establishment clause defense distinguishes allegheny county dictum lynch widmar lamb chapel difference government speech private speech crucial difference government speech endorsing religion establishment clause forbids private speech endorsing religion free speech free exercise clauses protect mergens concurring petitioners assert effect distinction disappears private speech conducted close symbols government course must merely subpart general principle distinction disappears whenever private speech mistaken government speech proposition accepted least capitol sq review bd pinette government fostered encouraged mistake course giving sectarian religious speech preferential access forum close seat government anywhere else matter violate establishment clause well free speech clause since involve content discrimination one conceive case governmental entity manipulates administration public forum close seat government within government building manner certain religious groups take advantage creating impression endorsement fact accurate situations involve governmental favoritism exist capitol square genuinely public forum known public forum widely used public forum many many years private religious speech subject veto see favoritism none contrary view strongly espoused justice stevens post endorsed justice souter justice well exiles private religious speech realm expression heretofore inhabited sexually explicit displays commercial speech young american mini theatres central hudson gas electric public serv sad day casts piety pornography finds first amendment hospitable private expletives see cohen california private prayers merely bizarre religious speech simply protected constitution forms private speech outright perverse one considers private religious expression receives preferential treatment free exercise clause answer say capitol sq review bd pinette establishment clause tempers religious speech terms clause applies words acts government never meant never read serve impediment purely private religious speech connected state occurrence public forum since petitioners transferred endorsement principle possibly restricted squares front state capitols establishment clause regime usher unappealing require permit access religious group lamb chapel sufficient group activity fact government sponsored event open public benefit facilities shared various organizations petitioners rule require school districts adopting similar policies future guess whether undetermined critical mass community might nonetheless perceive district advocating religious viewpoint similarly state universities forced reassess statement open forum public university confer imprimatur state approval religious sects practices widmar whether henceforth depend upon immediate appearances policy makers find vise establishment clause one side free speech free exercise clauses every proposed act private religious expression public forum force officials weigh host imponderables close government close kind building context symbolizes state authority state guessed wrong one direction guilty establishment clause violation liable suppressing free exercise free speech risk run state restrains expression capitol sq review bd pinette transferred endorsement test also disrupt settled principle policies providing incidental benefits religion contravene establishment clause principle basis constitutionality broad range laws merely implicate issues see witters supra mueller supra radical implications public policy suggest neutral laws invalid whenever hypothetical observers may even reasonably confuse incidental benefit religion state endorsement capitol sq review bd pinette ohio concerned misperceptions nothing prevents requiring private displays square identified manner restriction assuredly constitutional see clark community creative state may claim misperception official endorsement ban private religious speech public square discriminate requiring religious speech alone disclaim public sponsorship judgment appeals affirmed footnotes statement justice mergens concurrence followed observation think secondary school students mature enough likely understand school endorse support student speech merely permits nondiscriminatory basis justice today says observation means even recognize private speech issue must apply endorsement test post cause second sentence contradict first saying effect difference government speech private speech crucial true justice suggests post likely come different result plurality truly private speech allowed equal terms public forum government administered properly extending endorsement test private speech cover eventuality likely occur seem desirable explore precise degree unlikelihood perhaps point text extension private speech considerable costs contrary justice justice souter justice stevens argue endorsement test supply appropriate standard inquiry us supplies standard whatsoever lower federal courts concurrence identifies applied endorsement test precisely context us today post reached precisely differing results led take case proof invited chaos required one need follow debate concurrence justice stevens dissent whether hypothetical beholder determinant endorsement beholder matter unknowledgeable average beholder justice stevens accuses concurrence favoring beholder see post concurring judgment post stevens dissenting course even one achieves agreement upon question unrealistic expect different judges juries reach consistent answers beholder average beholder beholder case may think irresponsible make nation legislators walk minefield reason among others inquire adequacy identification attached cross ultimately erected case difficulties posed inquiry however yet another reason reject principle transferred endorsement principled line adequacy identification identification legible whatever distance cross visible otherwise uninformed viewer time inclination come closer read sign might misled current law uninformed viewer time inclination inquire whether speech capitol square publicly endorsed speech might misled needless say rule place considerable constraint upon religious speech mention ridiculous one rejects criterion courts decide basis imagine large identifying sign large enough religion clause jurisprudence complex enough without addition highly litigable feature capitol sq review bd pinette justice thomas concurring join conclusion petitioner exclusion ku klux klan cross justified establishment clause grounds fact legal issue us involves establishment clause lead anyone think cross erected ku klux klan purely religious symbol erection cross political act christian one little doubt klan main objective establish racist white government klan ceremony cross symbol white supremacy tool intimidation harassment racial minorities catholics jews communists groups hated klan cross associated klan religious worship klan practice entirely unknown early ku klux klan emerged southern reconstruction wade fiery cross ku klux klan america practice appears product thomas dixon whose book clansman formed story capitol sq review bd pinette movie birth nation see newton newton ku klux klan encyclopedia book borrowed old scottish rite dixon apparently believed members reconstruction ku klux klan reincarnated souls clansmen old scotland klan uses celebrate execution former slave dixon clansman historical romance ku klux klan although cross took religious significance klan became connected certain southern white clergy postwar period reverted original function instrument intimidation wade supra sure cross appears serve religious symbol christianity klan members hymn old rugged cross sometimes played see moore sheet cross symbolic analysis ku klux klan dissertation tulane university extent klan message communicate capitol square primarily political one testimony district leader local klan testified cross seen symbol freedom symbol trying unite people app klan chapter wished erect cross also symbol freedom tyranny also incorporated confederate battle flag ibid course cross also religious connotation klan leader linked cross claimed one central purposes klan establish christian government america surely message political religious nature although klan might sought convey message religious component think capitol sq review bd pinette klan primarily nonreligious purpose erecting cross klan simply appropriated one sacred religious symbols symbol hate mind suggests case may truly involved establishment clause although agree disposition manner case come us end may much less meets eye capitol sq review bd pinette justice justice souter justice breyer join concurring part concurring judgment join parts ii iii opinion concur judgment despite messages bigotry racism may conveyed along religious connotations display ku klux klan cross see ante thomas concurring bottom case must understood presented us case private religious expression whether state relationship violates establishment clause view endorsement test asks right question governmental practices challenged establishment clause grounds including challenged practices involving display religious symbols allegheny county american civil liberties union greater pittsburgh chapter concurring part concurring judgment even neutral state policy toward private religious speech public forum issue accordingly see necessity carve plurality opinion today exception endorsement test public forum context capitol sq review bd pinette reasons given justice souter whose opinion also join conclude facts case realistic danger community think state endorsing religion particular creed lamb chapel center moriches union free school slip granting respondents permit erect temporary cross capitol square write separately however emphasize seeks identify situations government makes adherence religion relevant person standing political community allegheny supra quoting lynch donnelly concurring endorsement test necessarily focuses upon perception reasonable informed observer recent years paid particularly close attention establishment clause cases whether challenged governmental practice either purpose effect endorsing religion concern long place establishment clause jurisprudence allegheny supra see also lamb chapel supra slip school dist grand rapids ball asking whether symbolic union church state effected challenged governmental action sufficiently likely perceived adherents controlling denominations endorsement nonadherents disapproval individual religious choices government statement religion particular religious belief favored preferred allegheny supra quoting wallace jaffree concurring judgment violates prohibition establishment religion ndorsement sends message capitol sq review bd pinette nonadherents outsiders full members political community accompanying message adherents insiders favored members political community lynch supra concurring see also allegheny supra concurring part concurring judgment wallace supra concurring judgment although xperience proves establishment clause easily reduced single test board ed kiryas joel village school dist grumet slip concurring part concurring judgment endorsement inquiry captures fundamental requirement establishment clause courts called upon evaluate constitutionality religious symbols public property see allegheny supra capitol sq review bd pinette plurality notes ante crucial difference government speech endorsing religion establishment clause forbids private speech endorsing religion free speech free exercise clauses protect board ed westside community schools dist mergens plurality opinion quoted statement made applying endorsement test indeed sentence upon plurality relies followed immediately conclusion secondary school students mature enough likely understand school endorse support student speech merely permits nondiscriminatory basis ibid thus read decisions justice souter carefully surveys prior cases imply endorsement test place private religious speech public forum issue moreover numerous lower courts including appeals case applied endorsement test precisely context us today see georgia miller en banc kreisner san diego cert denied americans separation church state grand rapids en banc doe small en banc cf smith county albemarle cert denied kaplan burlington cert denied given background see necessity draw new lines eligious expression capitol sq review bd pinette purely private occurs traditional designated public forum ante none suggest likely come different result plurality truly private speech allowed equal terms vigorous public forum government administered properly religious display issue erected private group public square available use public free discussion public questions activities broad public purpose ohio admin code ann certainly informs establishment clause inquiry endorsement test indeed many factors plurality identifies consider important deciding cases like one religious speakers seek access public spaces state sponsor respondents expression expression made government property opened public speech permission requested application process terms required groups ante read plurality opinion case governed proposed per se rule circumstances otherwise preferential placement religious symbol public space government manipulation forum involved see ante plurality consideration open nature forum private ownership display however add presence sign disclaiming government sponsorship endorsement klan cross make state role clear community factor important justice souter makes clear post certain aspects cross display case arguably intimate government approval respondents private religious message particularly cross especially potent sectarian symbol stood unattended capitol sq review bd pinette close proximity official government buildings context disclaimer helps remove doubt state approval respondents religious message cf widmar light large number groups meeting campus however doubt students draw reasonable inference university support mere fact campus meeting place university student handbook already notes university name identified way aims policies programs products opinions organization members facts message inclusion one neutrality rather endorsement mergens plurality opinion agreement outcome case however mask fact part company plurality fundamental point disagree radical implications public policy suggest neutral laws invalid whenever hypothetical observers may even reasonably confuse incidental benefit religion state endorsement ante contrary reasonable observer view government practice endorsing religion believe duty hold practice invalid plurality today takes exceedingly narrow view establishment clause step prior cases notions constitution requires clause negative prohibition certain narrowly defined forms government favoritism see ante also imposes affirmative obligations may require state situations take steps avoid perceived supporting endorsing private religious message establishment clause forbids state hiding behind application formally neutral criteria remaining studiously oblivious effects actions governmental intent capitol sq review bd pinette control state policies permissible religion clauses simply neutral form government operation public forum effect endorsing religion even governmental actor neither intends actively encourages result see lynch concurring establishment clause violated transferred endorsement ante mistaken attribution private speech state state actions operating forum particular manner permitting religious expression take place therein relationship private speech issue actually convey message endorsement point example private religious group may dominate public forum formal policy equal access transformed demonstration approval cf mergens concluding danger establishment clause violation public university allowing access student religious groups facilities available others least absence empirical evidence religious groups dominate school open forum circumstances may produce effect whether fortuity geography nature particular public space character religious speech issue among others establishment clause jurisprudence remain flexible enough handle situations arise end recognize establishment clause inquiry distilled fixed per se rule thus government practice must judged unique circumstances determine whether constitutes endorsement disapproval religion lynch concurring question answered abstract capitol sq review bd pinette instead requires courts examine history administration particular practice determine whether operates endorsement continue believe government practices relating speech religious topics must subjected careful judicial scrutiny endorsement test supplies appropriate standard inquiry ii establishment clause violation must moored government action sort concern political community writ large see allegheny supra concurring part concurring judgment lynch endorsement inquiry capitol sq review bd pinette perceptions particular individuals saving isolated discomfort viewing symbols faith subscribe indeed avoid entirely sweep ing away government recognition acknowledgment role religion lives citizens allegheny supra concurring part concurring judgment establishment clause jurisprudence must seek identify point government becomes responsible whether due favoritism toward disregard evident effect religious speech injection religion political life citizenry therefore disagree endorsement test focus actual perception individual observers naturally differing degrees knowledge approach religious display necessarily precluded long passersby perceive governmental endorsement thereof view however endorsement test creates collective standard gauge objective meaning government statement community lynch supra concurring respect applicable observer similar reasonable person tort law identified ordinary individual might occasionally unreasonable things rather personification community ideal reasonable behavior determined collective social judgment keeton et prosser keeton law torts ed thus ask whether person find endorsement religion whether people may offended display whether reasonable person might think state endorses religion americans saying endorsement inquiry conducted perspective hypothetical observer presumed possess certain level information capitol sq review bd pinette citizens might share neither chooses perceptions majority reasonable cf tribe american constitutional law ed invites disregard values establishment clause intended protect simply recognizes fundamental difficulty inherent focusing actual people always someone particular quantum knowledge reasonably might perceive particular action endorsement religion state made religion relevant standing political community simply particular viewer display might feel uncomfortable reason reasonable observer endorsement inquiry must deemed aware history context community forum religious display appears explained allegheny history ubiquity practice relevant provides part context reasonable observer evaluates whether challenged governmental practice conveys message endorsement religion knowledge attributed reasonable observer limited information gleaned simply viewing challenged display today proponents endorsement test agree attribute observer knowledge cross religious symbol capitol square owned state large building nearby seat state government see post souter concurring part concurring judgment post stevens dissenting view hypothetical observer also know general history place cross displayed indeed fact capitol square public park used time private speakers various types much part display context proximity ohio statehouse cf allegheny capitol sq review bd pinette noting grand staircase appear kind location free place displays weeks time approach require us assume observer understands vagaries first amendment jurisprudence post stevens dissenting informed member community know public space question used past fact space may meet legal definition public forum relevant endorsement inquiry dissent argument fails give sufficient weight fact cross issue displayed forum traditionally open public fact sign installed public property dissent suggests implies official approval message post may case government building immediate curtilage involved necessarily respect places long tradition government fiat devoted assembly debate particularly streets parks immemorially held trust use public time mind used purposes assembly communicating thoughts citizens discussing public questions perry ed assn perry local educators quoting hague committee industrial organization extent presumption structures government property particular front buildings plainly identified state imply state approval message post stevens dissenting presumption rebutted property issue forum historically available private expression reasonable observer recognize distinction speech government supports speech merely capitol sq review bd pinette allows place traditionally open range private speakers accompanied necessary appropriate disclaimer case believe reasonable observer view klan cross display fully aware capitol square public space multiplicity groups secular religious engage expressive conduct precisely type knowledge presumed lamb chapel slip mergens plurality opinion moreover observer certainly able read understand adequate disclaimer klan informed state include display time applied permit see app pet cert post souter concurring part concurring judgment content board defined deemed necessary condition granting klan application cf american civil liberties union wilkinson facts case therefore conclude reasonable observer interpret state tolerance klan private religious display capitol square endorsement religion iii sure endorsement test depends sensitivity unique circumstances context particular challenged practice like test sensitive context may always yield results unanimous agreement margins allegheny concurring part concurring judgment view however flexibility virtue vice courts must keep mind fundamental place held establishment clause capitol sq review bd pinette constitutional scheme myriad subtle ways establishment clause values eroded lynch concurring capitol sq review bd pinette justice souter justice justice breyer join concurring part concurring judgment concur parts ii iii opinion also want note specifically agreement suggestion state ohio ban unattended private displays capitol square desired see ante see also post stevens dissenting fact capitol lawn site public protests gatherings location number government unattended displays statues disable state closing square privately owned unattended structures government entity may ban posters publicly owned utility poles eliminate visual clutter city council los angeles taxpayers vincent may bar camping part demonstration certain public parks clark community creative may similarly adopt policy prohibiting private individuals groups erecting unattended displays forums around public buildings see also ward rock racism capitol sq review bd pinette ven public forum government may impose reasonable restrictions time place manner protected speech provided restrictions justified without reference content regulated speech narrowly tailored serve significant governmental interest leave open ample alternative channels communication information quoting clark supra otherwise however limit concurrence judgment although agree end circumstances case petitioners erred denying klan application permit erect cross capitol square analysis establishment clause issue differs justice scalia vote affirm large part possibility affixing sign cross adequately disclaiming government sponsorship endorsement plurality opinion declines apply endorsement test board action favor per se rule religious expression violate establishment clause private occurs public forum even reasonable observer see expression indicating state endorsement ante per se rule exception endorsement test previously recognized square precedents disagreement plurality law may receive focus attention matter straight fact see alike circumstances intelligent observer may mistake private unattended religious displays public forum government speech endorsing religion see ante acknowledging hypothetical observers may even reasonably confuse incidental benefit religion state endorsement capitol sq review bd pinette emphasis original see also ante noting observer might misled presence cross capitol square disclaimer insufficient size observer failed enquire whether state sponsored cross klan concedes possibility well saying view different set facts government might found guilty violating endorsement test permitting private religious display public forum brief respondents observer need obtuse doe small easterbrook concurring presume unattended display government land place prominence front government building either belongs government represents government speech enjoys location government endorsement message capitol square example site number unattended displays owned sponsored government permanent statues temporary christmas tree seasons greetings banner flags presumably taken put time time see app photos appendices opinion infra given domination square government displays one dimwit matter law think unattended religious display endorsed government even though square also site three privately sponsored unattended displays years menorah way thermometer artisans booths left overnight arts festival ante cf allegheny county american civil liberties union greater pittsburgh chapter even grand staircase occasionally used displays creche remains true display located fairly may capitol sq review bd pinette understood express views receive support endorsement government even though square meets legal definition public forum used century site speeches gatherings festivals ante individual speaks public forum reasonable observer attribute speech first foremost speaker unattended display message conveys naturally viewed belonging owner land stands sum understand odds plurality assume circumstances intelligent observer reasonably perceive private religious expression public forum imply government endorsement religion disagreement plurality simply attribute perceptions intelligent observer reasonable observer establishment clause analysis precedents believe reasonable perceptions matter ii allegheny county alluded two elements analytical framework supplied lemon kurtzman asking whether challenged governmental practice either purpose effect endorsing religion said prohibition governmental endorsement religion preclude government conveying attempting convey message religion particular religious belief favored preferred quoting wallace jaffree concurring judgment emphasis omitted held establishment clause least prohibits government appearing take position questions religious belief capitol sq review bd pinette allegheny county endorsement test dismissed justice scalia suggests applying situations allegation establishment clause violated expression government government action discriminat ing favor private religious expression ante emphasis omitted distinction handful cases make meaningless part allegheny county test effects matter establishment clause one principal way assess asking whether practice question creates appearance endorsement reasonable observer see allegheny county supra concurring part concurring judgment witters washington dept services blind concurring part concurring judgment see also allegheny county supra majority opinion lynch donnelly concurring reasonable observer perceive religious display government forum government speech endorsing religion display made religion relevant public perception status political community concurring unless retreat entirely government intent abandon consideration effects makes sense recognize public perception endorsement harm subclass cases government owns display indeed stated allegheny county judgment made particular proclamation christian belief disseminated particular location government property effect demonstrating government endorsement christian faith necessarily follows practice must enjoined notably capitol sq review bd pinette say particular government proclamation unconstitutional effect passage imply anything kind significance fact allegheny county intend lay per se rule way suggested plurality today confirmed subsequent cases board ed westside community schools dist mergens six justices applied endorsement test decide whether establishment clause violated public high school application equal access act pub stat allow students form religious club access meeting facilities noncurricular groups organized students plurality four justices concluded equal access policy convey message state approval endorsement particular religion espoused student religious group joined rehnquist white blackmun two others concurred judgment order emphasize steps school must take avoid appearing endorse religious club goals opinion marshall joined brennan see also public schools perceived conferring imprimatur state religious doctrine practice result policy nominally neutral character policy save running afoul establishment clause emphasis original important even though mergens involved private religious speech nondiscriminatory limited open forum majority reached conclusion case applying irrebuttable presumption plurality today making contextual judgment taking account circumstances specific case see capitol sq review bd pinette plurality opinion opinion marshall joined brennan cf allegheny county supra concurring part concurring judgment endorsement test depends sensitivity unique circumstances context particular challenged practice lynch supra concurring every government practice must judged unique circumstances determine whether constitutes endorsement disapproval religion mergens plurality considered nature likely audience econdary school students mature enough understand school endorse support student speech merely permits nondiscriminatory basis details particular forum noting broad spectrum officially recognized student clubs school students freedom initiate organize additional student clubs presumptively secular nature student organizations ibid absence empirical evidence religious groups dominate open forum advancement religion forum primary effect quoting widmar vincent school specific action inaction disassociate religious message school officials actively participate religious group activities plurality moreover expressly relied fact school issue disclaimer specific religious group concluding extent school makes clear recognition religious student group endorsement students reasonably understand recognition club evinces neutrality toward rather endorsement religious speech ibid see also marshall concurring judgment noting importance schools taking whatever capitol sq review bd pinette steps necessary make clear recognition religious club reflect endorsement views club participants similarly lamb chapel center moriches union free school held evangelical church wanting use public school property show series films religious perspective refused access premises policy open school groups showing similar films perspective reaching conclusion expressly concluded policy principal primary effect advancing inhibiting religion slip looked specific circumstances private religious speech public forum film shown school hours sponsored school open public forum used repeatedly wide variety private speakers ibid circumstances concluded realistic danger community think school endorsing religion ibid thus expressly looked endorsement effects private religious speech issue notwithstanding fact allegation establishment clause violated active expression government affirmative government action discriminat ing favor private religious expression ante emphasis omitted indeed issue whether private religious speech government forum effect advancing religion central rather irrelevant establishment clause enquiry agree lamb chapel reasoning applies fortiori ante widmar vincent contrary although widmar decided capitol sq review bd pinette adoption endorsement test allegheny county reasoning fits test per se rule announced today determining whether violate establishment clause allow private religious speech generally open forum university looked lemon test focused effects prong reaching contextual judgment relevant university students able appreciate university policy one neutrality toward religion students unlikely matter fact draw reasonable inference university support mere fact campus meeting place university student handbook carried disclaimer university identified way opinions student organization context absence empirical evidence religious groups dominate open forum found forum issue confer imprimatur state approval religious sects practices even precedent practice otherwise however open question applying endorsement test private speech public forums apply preference plurality view creates serious loophole protection provided endorsement test justice scalia view understand establishment clause violated public forum government intentionally endorses religion willfully foster misperception endorsement forum ante manipulates public forum manner certain religious groups take advantage ibid list forbidden acts truly short governmental capitol sq review bd pinette bodies officials left generous scope encourage multiplicity religious speakers erect displays public forums long governmental entity manipulat forum way exclude speech plurality opinion seem invite government encouragement even result domination forum religious displays religious speakers allowing government encourage proposed per se rule tempt public body contract establishment religion encouraging private enterprise religious exhibit government display something sort fact may happened immediately district issued injunction ordering petitioners grant klan permit local church council applied permit apparently purpose overwhelming klan cross crosses council proposed invite local churches erect crosses board granted blanket permission churches friendly affiliated council see brief opposition end result part square strewn crosses see appendices opinion infra effect case may provided embarrassment suspicion endorsement opportunity latter clear iii specifics case one must admit number facts known board reasonably anticipated weighed favor upholding denial permit example latin cross klan sought erect principal symbol christianity around world display cross alone reasonably taken secular point capitol sq review bd pinette displayed immediately front ohio statehouse government flags flying nearby government statues close hand much time cross supposed stand square private display public plot menorah permit expired several days cross actually went see pet cert nothing else statehouse lawn suggested forum open private unattended religious displays based factors board understandably concerned possible establishment clause violation granted permit flat denial klan application board option protect appearance endorsement board required find narrowly drawn alternative perry ed assn perry local educators see also ante either two possibilities better suited situation support klan application representative stated letter board cross accompanied disclaimer legible distance explaining cross erected private individuals without government support app letter said contents sign open negotiation ibid board granted capitol sq review bd pinette application subject condition klan attach disclaimer sufficiently large clear preclude reasonable inference cross demonstrat government allegiance endorsement christian faith allegheny county alternative board capitol sq review bd pinette instituted policy restricting private unattended displays one area square permanent sign marking area forum private speech carrying endorsement state alternatives available board claim flat denial narrowly tailored response klan permit application thus rely denial necessary ensure state appea take position questions religious belief reasons concur judgment capitol sq review bd pinette appendix opinion souter capitol sq review bd pinette appendix opinion souter description disclaimer well agreement negotiate also appeared klan district complaint app stipulations fact jointly filed district parties klan conceded district state required disclaimer like one proposed memorandum support temporary restraining order preliminary injunction sd ohio state assumed throughout litigation display include disclaimer see memorandum defendants capitol sq review bd pinette opposition plaintiffs motion temporary restraining order preliminary injunction sd ohio parties considered disclaimer integral part display klan desired place capitol square thus district order expressly require disclaimer awarding injunction see pet cert plaintiffs entitled injunction requiring defendants issue permit erect cross capitol square reasonably read mean disclaimer unnecessary indeed findings fact conclusions law district discussed presence importance disclaimer see findings fact conclusions law klan understood district order based assumption disclaimer accompany cross since cross klan put basis district command fact carried disclaimer see app photo appendix opinion stevens post since litigation preceded appearance cross sign adequacy sign actually produced considered adequacy disclaimer size well content course proper subject judicial scrutiny placed issue whether flimsy cardboard sign attached klan base cross functioned adequate disclaimer case question us course presence disclaimer always remove possibility private religious display convey attempt convey message religion particular religious belief favored preferred allegheny county emphasis internal quotation marks citation omitted indicia endorsement objective indications government fact invited display otherwise intended religious purpose outweigh mitigating effect disclaimer disclaimer sufficiently disclaim government support see stone graham allegheny county supra cf ante case however reason presume capitol sq review bd pinette adequate disclaimer drafted cf parish private religious displays public fora chi rev capitol sq review bd pinette justice stevens dissenting establishment clause construed create strong presumption installation unattended religious symbols public property although state ohio allowed capitol square area around seat government used public forum although occasionally allowed private groups erect sectarian displays neither fact provides sufficient basis rebutting presumption contrary sequence sectarian displays disclosed record case illustrates importance rebuilding wall separation church state jefferson envisioned issue case unadorned latin cross ku klux klan placed left unattended lawn front ohio state capitol decides case assumption cross capitol sq review bd pinette religious symbol agree assumption notwithstanding hybrid character particular object record indicates grand titan knights ku klux klan realm ohio applied permit place cross front state capitol jews placing symbol jewish belief square app observers unaware sponsored cross unfamiliar history klan reaction menorah might interpret klan cross inspirational symbol crucifixion resurrection jesus christ knowledgeable observers might regard given context symbol bigotry disrespect particular religious sect first interpretation cross plainly religious symbol second icon intolerance expressing message also treated religious symbol establishment clause must prohibit official sponsorship irreligious capitol sq review bd pinette well religious messages see wallace jaffree principle less binding message also bigoted message see ballard government lacks power judge truth religious beliefs watson jones wall law knows heresy committed support dogma establishment sect thus unattended freestanding wooden cross unquestionably religious symbol observers may well received completely different messages symbol might perceived message love others message hate still others message exclusion statehouse sign calling powerfully mind outsider status event message state ohio may communicate citizens without violating establishment clause ii plurality disagree proposition state may espouse religious message ante concludes however state sent message merely allowed others property thus state provided incidental benefit religion allowing private parties access traditional public forum see ante judgment neither precedent respect values protected establishment clause justifies conclusion establishment clause least prohibits government appearing take position questions religious belief making adherence religion relevant way person standing political community county allegheny american civil liberties union greater pittsburgh chapter quoting lynch capitol sq review bd pinette donnelly concurring least religious symbols involved question whether state appearing take position best judged standpoint reasonable observer especially important take account perspective reasonable observer may share particular religious belief expresses paramount purpose establishment clause protect person made feel like outsider matters faith stranger political community ibid reasonable person perceive government endorsement religion private display state may allow property used forum display less stringent rule adequately protect perception sovereign supports faith subscribe capitol sq review bd pinette determining whether state maintenance klan cross front statehouse conveyed forbidden message endorsement mindful power symbol standing alone unexplained even private property signs symbols generally understood express owner views location sign significant component message conveys displaying sign one residence often carries message quite distinct placing sign someplace else conveying text picture means precisely location signs provide information identity speaker early eminent student rhetoric observed identity speaker important component many attempts persuade sign advocating peace gulf front lawn retired general decorated war veteran may provoke different reaction sign child bedroom window message bumper sticker passing automobile espousal socialism may carry different implications displayed grounds stately mansion pasted factory wall ambulatory sandwich board city ladue gilleo slip omitted capitol sq review bd pinette signs symbols left speak public property fact sign installed public property implies official recognition reinforcement message implication especially strong sign stands front seat government reasonable observer symbol placed unattended front capitol world normally assume sovereign owner parcel real estate also lawgiver surrounding territory sponsored facilitated message state may granted variety groups permission engage uncensored expressive activities front capitol building opinion qualify contradict normal inference endorsement reasonable observer draw unattended freestanding sign symbol indeed parades demonstrations near seat government often exercises right people petition government redress grievances capitol sq review bd pinette exercises government recipient message rather messenger even demonstration parade directed government policy merely made use particularly visible forum order reach wide audience possible usually mistake identity messengers persons state statue silent unattended immoveable structure regardless particular message appears lawn capitol building reasonable observer must identify state either messenger least one endorsed message contrast light image cross standing alone unattended see infra image observer take away hooded klansman holding standing next cross never held private party right place unattended object public forum today correctly recognizes state may impose ban private unattended displays forum ante true despite fact cases condemned number laws foreclose entire medium expression even places free speech otherwise allowed first capitol sq review bd pinette amendment affords protection basic liberty freedom speech individual may exercise using public streets parks hague committee industrial organization opinion roberts amendment however destroy property rights particular empower individuals erect structures kind public property city council los angeles taxpayers vincent see also clark community creative thus cases protecting individual freedom engage communicative capitol sq review bd pinette conduct public property whether speaking parading handbilling waving flag carrying banner lovell griffin send messages property placing sign window home city ladue gilleo establish right implant physical structure whether campaign poster burning cross statue elvis presley public property think latter right creates far greater intrusion government property interferes government ability differentiate message public individuals exist structures government property particular front buildings plainly identified state imply state approval message government must considerable leeway outside religious arena choose kinds displays allow kinds although first amendment requires government allow leafletting demonstrating outside buildings state greater power exclude unattended symbols convey type message state wish identified think obvious example ohio prohibit certain categories signs symbols capitol square erotic exhibits commercial advertising perhaps campaign posters well without violating free speech clause capitol sq review bd pinette moreover public forum cases foreclose public entities enforcing prohibitions unattended displays public parks possibly even limiting use displays communication messages limitation inhibit traditional forms expression given full constitutional protection public fora state general power restrict types unattended displays alone suffice decide case ohio profess exercising authority instead capitol square review board denied permit cross believed establishment clause required much know whether board denied permit grounds app accordingly must evaluate state rationale capitol sq review bd pinette terms case endorsement inquiry establishment clause follows state power exclude unattended private displays public property constitution recognizes state interest preventing property used conduit ideas wish give appearance ratifying establishment clause prohibits government allowing thus endorsing unattended displays take position religious issue state allows stationary displays front seat government viewers reasonably assume approves picture appended opinion demonstrates infra reasonable observer likely infer endorsement location cross erected klan case even disclaimer foot cross stated cross placed private organization legible inference remain property owner decision allow third party place sign property conveys message endorsement erected message religious character message state neither send reinforce without violating establishment clause accordingly hold constitution generally forbids capitol sq review bd pinette placement symbol religious character seat government iii correctly acknowledges state duty avoid violation establishment clause justify restriction speech expression even restriction otherwise prohibited free speech clause ante ante opinion plurality asserts however government perceived endorsing religious display merely accords display access public forum displays enjoy ante find argument unpersuasive existence public forum dispel message endorsement contrary argument assume observer understands vagaries first amendment jurisprudence think presumptuous consider knowledge precondition establishment clause protection many probably reasonable people know difference public forum limited public forum forum know difference state capitol church reasonable people differing degrees knowledge make obtuse see quoting doe small easterbrook concurring make unworthy constitutional protection merely makes human religious display violate establishment clause think enough reasonable observers attribute religious message state plurality appears rely history particular public forum specifically emphasizes ohio past allowed three private capitol sq review bd pinette unattended displays even state reasonably understood endorse prior displays find argument convincing assumes reasonable viewers know history capitol square highly unlikely supposition plurality argument fails terms three previous displays conveyed message approval endorsement one significant course menorah stood capitol square chanukah display religious symbol governed rule display cross opinion capitol sq review bd pinette displays equally objectionable moreover fact state placed stamp approval two different religions instead one compounds constitutional violation establishment clause merely prohibit state favoring one religious sect others also proscribes state action supporting establishment number religions well official endorsement religion preference nonreligion wallace jaffree state prior approval message conveyed menorah fully consistent endorsement one messages conveyed cross state ohio favors religion irreligion message incompatible principles embodied establishment clause record identifies two examples displays state previously permitted capitol square way campaign thermometer craftsmen booths displays erected arts festival app pet cert examples confirm proposition reasonable observer infer official approval message conveyed structure erected front statehouse surely thermometer suggested state encouraging passersby contribute capitol sq review bd pinette way seems equally clear state endorsing creativity artisans craftsmen permitting booths occupy part square nothing either freestanding displays contradicts normal inference state endorsed whatever message might conveyed permitting unattended symbol adorn capitol grounds accordingly fact menorah later cross stood area available free discussion public questions activities broad public purpose ohio rev code ann quoted ante fully consistent conclusion state sponsored religious symbols like thermometer booths displayed context connotes state approval case therefore readily distinguishable widmar vincent lamb chapel center moriches union free school cases made perfectly clear danger incorrect identification speakers basis inferring messages endorsed public entity explained later case circumstances widmar realistic danger community think district endorsing religion particular creed benefit religion church incidental widmar supra permitting district property used exhibit film involved case establishment religion capitol sq review bd pinette test articulated lemon kurtzman challenged governmental action secular purpose principal primary effect advancing inhibiting religion foster excessive entanglement religion slip omitted battle klan cross underscores power symbolism menorah prompted klan seek permission erect symbol turn prompted vandalism also motivated sects seek permission place symbols square facts illustrate potential insidious entanglement flows proselytizing reason believe capitol sq review bd pinette menorah placed front synagogue motivated reaction klan klan cross placed klansman front lawn produced reaction one enjoyed apparent imprimatur state ohio reason believe placement displays capitol square purpose connect state though perhaps religious beliefs placed cause conflict state apparent approval religious message constitution wisely seeks minimize capitol sq review bd pinette strife forbidding religious activity iv conspicuously absent plurality opinion mention values served establishment clause therefore seems appropriate repeat portion opinion authored justice black justice history espoused literal interpretation constitutional text large proportion early settlers country came europe escape bondage laws compelled support attend churches centuries immediately contemporaneous colonization america filled turmoil civil strife persecutions generated large part established sects determined maintain absolute political religious supremacy power government supporting various times places catholics persecuted protestants protestants persecuted catholics protestant sects persecuted protestant sects catholics one shade belief persecuted catholics another shade belief time time persecuted jews efforts force loyalty whatever religious group happened top league government particular time place men women fined cast jail cruelly tortured killed among offenses punishments inflicted things speaking disrespectfully views ministers churches churches expressions doctrines failure pay taxes tithes support capitol sq review bd pinette practices old world transplanted began thrive soil new america charters granted english crown individuals companies designated make laws control destinies colonials authorized individuals companies erect religious establishments whether believers required support attend exercise authority accompanied repetition many practices persecutions catholics found hounded proscribed faith quakers followed conscience went jail baptists peculiarly obnoxious certain dominant protestant sects men women varied faiths happened minority particular locality persecuted steadfastly persisted worshipping god consciences dictated dissenters compelled pay tithes taxes support churches whose ministers preached inflammatory sermons designed strengthen consolidate established faith generating burning hatred dissenters establishment religion clause first amendment means least neither state federal government set church neither pass laws aid one religion aid religions prefer one religion another neither force influence person go remain away church force profess belief disbelief religion neither state federal government openly secretly participate affairs religious organizations groups vice versa capitol sq review bd pinette words jefferson clause establishment religion law intended erect wall separation church state everson board ed ewing footnotes citation omitted effect religious freedom amendment constitution take every form propagation religion realm things directly indirectly made public business intended keep hands religion keep religion hands state keep bitter religious controversy public life capitol sq review bd pinette respectfully dissent capitol sq review bd pinette appendix opinion stevens see reynolds grand titan apparently referring menorah private group placed square season chanukah app see infra klan found menorah offensive klan cross turn offended number observers vandalized day erected local church group applied granted permission display crosses around klan protest latter presence see record indeed latin cross identifiable symbol particular religion christianity symbol particular denominations within christianity see american civil liberties union charles display religious also sectarian religious americans christians protestant sects still display cross greek orthodox church uses symbol greek equilateral cross latin cross sectarian display closer original targets establishment clause strictly clause applied allegheny five justices found likely reaction reasonable observer relevant purposes determining whether endorsement present opinion blackmun opinion opinion brennan joined marshall stevens justice agrees endorsement test appropriate judge endorsement standpoint reasonable observer ante reasonable observer legal fiction personification community ideal reasonable behavior determined collective social judgment ante ideal human justice describes knows understands much meets eye reasonable person comes jurist finer model respect think enhanced standard singularly place establishment clause context strips constitutional protection every reasonable person whose knowledge happens fall ideal standard instead protecting ideal observer extend protection universe reasonable persons ask whether viewers religious display likely perceive government endorsement capitol sq review bd pinette justice argument always someone feel excluded particular governmental action ante ignores requirement apprehension objectively reasonable person views exotic cow zoo symbol government approval hindu religion survive test recognize may exceptions general rule commercial message displayed billboard example usually taken represent views billboard owner every reasonable observer aware billboards rented advertising space hand observer may reasonably infer owner billboard inalterably opposed message presented thereon owner right exclude messages disagrees might expected exercise right disagreement sufficiently profound despite absence holding point justice assumes reasonable observer impute content unattended display government observer know state required allow displays capitol square ante justice thus presumes reasonable observer prescient understand legal doctrines yet adopted prior decisions voiced particular concern laws foreclose entire medium expression thus held invalid ordinances completely banned distribution pamphlets within municipality lovell griffin handbills public streets jamison texas capitol sq review bd pinette distribution literature martin struthers schneider state live entertainment schad mount ephraim see also frisby schultz picketing focused upon individual residence fundamentally different generally directed means communication may completely banned residential areas although prohibitions foreclosing entire media may completely free content viewpoint discrimination danger pose freedom speech readily apparent eliminating common means speaking measures suppress much speech city ladue gilleo slip omitted vincent stated appellees reliance public forum doctrine misplaced fail demonstrate existence traditional right access respecting items utility poles purposes communication comparable recognized public streets parks clear first amendment guarantee access government property simply owned controlled government postal service greenburgh civic rather existence right access public property standard limitations upon right must evaluated differ depending character property issue perry education assn perry local educators least exist general matter recognize may cases viewpoint discrimination say state allow campaign signs supporting incumbent governor signs supporting opponent access discriminatorily denied plurality incorrectly assumes decision exclude category speech inappropriate forum must rest judgment value speech see ante yet upheld exclusion political signs public capitol sq review bd pinette vehicles lehman city shaker heights though political expression heart protection afforded first amendment mcintyre slip view private prayers ante appropriate private settings neither novel disrespectful religious speech several scholars commented malleability precedents overview cases strongly suggests whether given place deemed public forum ordinarily less significant nature speech restriction despite rhetoric indeed even rhetoric times reveals much beyond confusing issues excessive focus public character forums coupled inadequate attention precise details restrictions expression leave speech inadequately protected cases unduly hampering state local authorities others tribe american constitutional law ed footnotes omitted indeed think disclaimer dispel message endorsement case capitol square location downtown columbus ohio makes inevitable countless motorists pedestrians immediately perceive proximity cross capitol without necessarily noticing disclaimer public sponsorship plurality thus correctly abjures inquiry possible adequacy significance legend identifying owner cross see ante justice souter view adequate disclaimer constitutionally required ante suggest attachment klan cross case adequate justice apparently extend establishment clause protection passers unaware capitol square history see ante thus sees reason distinguish intimate knowledge square history knowledge cross religious symbol statehouse statehouse ante passers including schoolchildren traveling salesmen tourists much live next statehouse members body politic equally entitled free government endorsement religion fragmented reached different conclusion county allegheny american civil liberties union greater pittsburgh chapter creche placed private group inside public building violated establishment clause menorah placed alongside christmas tree sign saluting liberty outside building opinion blackmun opinion opinion kennedy joined rehnquist white scalia two justices provided decisive votes distinguish situations relied presence tree sign find menorah context religious secular symbol liberty opinion blackmun opinion apparently reliance outcome allegheny case ohio believed provide forum menorah capitol sq review bd pinette appeared capitol square christmas tree banner reading season greetings yet provide one cross see app given state law time ohio decision hardly unreasonable support view establishment clause permits state effectively endorse kinds religious symbols others find state powerless place allow placed religious symbol including menorah cross front seat government see allegheny stevens dissenting booths attended festival left standing overnight pendency event app course neither endorsements religious nature thus neither forbidden constitution stated allegheny always risk symbols offend nonmembers faith advertised well adherents consider particular advertisement disrespectful devout christians believe creche placed reverential settings church perhaps private home countenance use aid commercialization christ birthday suit members jewish faith firmly opposed use menorah put particular sect sponsored display pittsburgh building even though assersby disagree message conveyed displays free ignore even turn backs displays kind inevitably greater tendency emphasize sincere deeply felt differences among individuals achieve ecumenical goal establishment clause allow public bodies foment disagreement opinion concurring part dissenting part citations omitted quoting kennedy concurring judgment part dissenting part realm religion knowledge leaves faith begins never needed arm state support wherever received harmed public religion pretend serve tr oral arg scopes state quoted wolman walter opinion stevens everson held school district part larger program reimbursing students transportation school also reimburse students attending catholic schools words respecting establishment religion selected emphasize breadth richer meaning fundamental command see allegheny stevens dissenting justice ginsburg dissenting confront justices souter point large latin cross stood alone unattended close proximity ohio statehouse see ante concurring part concurring judgment ante souter concurring part concurring judgment near stationary cross government flags government statues human speaker present disassociate religious symbol state private display sight plainly visible sign informed public cross belonged klan ohio government endorse display message aim establishment clause genuinely uncouple government church see everson board ed ewing state may permit may order display character cf sullivan religion liberal democracy chi rev negative bar establishment religion implies affirmative establishment secular public order justice souter final paragraphs opinion suggests two capitol sq review bd pinette arrangements might distanced state principal symbol christianity around world see ante sufficiently large clear disclaimer ante area reserved unattended displays carrying endorsement state space plainly permanently marked ante neither arrangement even arguably present case district order mandate disclaimer see app pet cert plaintiffs entitled injunction requiring defendants issue permit erect cross capitol square disclaimer klan appended foot cross unsturdy identify klan sponsor failed state unequivocally ohio endorse display message shown legible distance relief ordered district thus violated establishment clause capitol sq review bd pinette whether order allowing display cross demanding sturdier disclaimer withstand establishment clause analysis question difficult one case poses reserve question another day case let prospect might permissible control today decision constitutionality display district order fact authorized see ante appendix dissent stevens photograph display cf american civil liberties union wilkinson approving disclaimer ordered district prominently displayed immediately front religious symbol readable automobile passing street directly front structure approved sign read display constructed public funds constitute endorsement commonwealth kentucky religion religious doctrine quoting district mccreary stone disclaimers must meet requirements size visibility message disclaimer issue small aff per curiam parish private religious displays public fora chi rev disclaimer must identify sponsor must say uncertain language government permit way connotes government endorsement display message disclaimer adequacy measured visibility average person viewing religious display disclaimer stated cross erected private individuals without government support purpose expressing respect holiday season assert right religious views expressed equal basis public property see app pet cert page