Capitol Square Review & Advisory Board v. Pinette

The land in question was the Capitol Square in Columbus, Ohio. The ten acre area had always been "available for discussion of public questions and for public activities an advisory board was responsible for regulating public access to the square, and to use the square a group simply had to submit an application to the board and meet several criteria that were neutral as to the speech content of the proposed use." [1] In the past, the advisory board approved displays had included Christmas trees, menorahs, and various other religious-based decorations.

Beneath the surface, there was an issue that was more worrisome than the religious implications of the cross itself. The cross's association with the Ku Klux Klan was a concern to the State of Ohio. In 1993, racial tensions between whites and blacks in the United States were high. There were race riots in Los Angeles, the KKK had several active chapters across the country, and the United States was struggled to maintain equality and peace for all citizens. These underlying tensions accounted for much of the conflict in Capitol Square. Allowing the Ku Klux Klan to erect one of their white crosses on the lawn of the Statehouse in Ohio went much deeper than religion. However, as recognized by the Justices, "the facts before us and the opinions address only the Establishment Clause issue, and that is the sole question before us to decide." The Advisory Board could do nothing to prevent the Klan from displaying their cross on state-owned land.

The case surrounded the issue of the interpretation of both the First Amendment and the Establishment Clause in the United States Constitution. The Capitol Square in Columbus, Ohio was a state-owned piece of land and any and all unattended displays had to be approved by the Advisory Board. However, over the years the area had become a public forum where people were permitted to hold public gatherings and leave unattended displays that were both secular and religious in nature.[3] The job of the Advisory Board was to issue permits and regulate the content of the displays that took place in the Square. They were to make their decisions within the bounds of the First Amendment and the Establishment Clause. The Establishment Clause states that Congress cannot make a law "respecting an establishment of religion, or prohibiting the free exercise thereof," [4] so the Board had to follow the same protocol in their decisions as well. The Board denied the Ku Klux Klan's permit request "on the grounds that the permit would violate the Establishment Clause," on the same day that they approved the display of a menorah on the square.[1] Pinette and the other Klansmen appealed this decision.

Justice Antonin Scalia delivered the majority opinion of the court on June 22, 1995. He was joined by Justice Anthony Kennedy, Justice Stephen Breyer, and Chief Justice William Rehnquist. The court held that:

1. Private religious speech is protected under the free speech clause of the First Amendment
2. Although the state has the right to make content-based restrictions on speech, the board's denial of the Klan's application to display the cross on the statehouse square was not justified on the grounds of the establishment clause.

Traditionally, the square had been recognized as a public forum by the general population and because the display of religion was purely private it could not violate the Establishment Clause.[5] The Advisory Board was still responsible for the content displayed on the square, but they could not intentionally block a religious display from being set up.

• Justice Clarence Thomas concurred with the Court's ruling on the Establishment Clause, but felt that the Klan's primary goal with the cross did not exclusively serve a religious purpose, but also included political motive. He wanted to make the note that the KKK was likely using the cross as both a religious display as well as an obvious political statement.
• Justice Sandra Day O'Connor concurred in part and concurred "in the judgment," but recognized the benefit of a sign disclaiming government sponsorship or endorsement on the Klan cross, which would make the State's role clear to the community. The state would benefit from prominently displaying signs that tell the public that they have no direct connection to anything displayed on the square.
• Justice David Souter concurred with the court's ruling, but he also wanted to add that he felt it was in the best interest of the State of Ohio to place a permanent sign that served as a disclaimer for any and all government sponsorship or endorsement of the display.

• Justice John Paul Stevens dissented from the majority opinion, and was joined by Justice Ginsburg.

Stevens felt that the situation violated the establishment clause under the Endorsement Test. Even though Capitol Square in Ohio had turned into a public forum and it had allowed other various private groups to place unattended displays on the property, that did not prove that it was not in violation of the Establishment Clause. Stevens wanted to strengthen the separation of church and state.

• Justice Ruth Bader Ginsburg also dissented. She stated that if the Establishment Clause is truly intended to separate church and state then the government can neither permit, and the court cannot order, any religious items to be displayed. She felt that, if based on the Constitution, the board was not permitted to not allow certain displays to be shown, then by the same interpretation the court cannot force any particular display to be shown either.[1]