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

Capitol Square is a 10-acre, state-owned plaza surrounding the statehouse in Columbus, Ohio. For over a century the square had ‘‘been used for public speeches, gatherings, and festivals advocating and celebrating a variety of causes, both secular and religious.’’ As authorized by Ohio state statute, the Advisory Board denied a Ku Klux Klan application to place an unattended, unlabeled cross in the square during the Christmas season—while approving other displays, at least one of which was religious. The Klan was then permitted to erect its cross pursuant to a federal court injunction, and the Board appealed, claiming its denial was required by the First Amendment Establishment Clause.

The Supreme Court affirmed the lower courts’ action, stating ‘‘There is no doubt that compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based restrictions on [expression].’’ However, ‘‘[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms. Those conditions are satisfied here, and therefore the State may not bar respondents’ cross from Capitol Square.’’ The Court declined to deal with the possible political implications of the Klan’s racist views because that issue had not been considered in the lower courts.

In addition, there was considerable discussion (and no majority agreement) among the justices on the proper use and application of the so-called endorsement test: whether permission by government for the display on its property of an unlabeled cross sent a message of government promotion of Christianity. Two justices dissented, focusing on the likelihood that the cross sends such a message.

The decision and accompanying disagreements are consistent with the Court’s two prior holiday display cases, County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1984).

DANIEL G. GIBBENS

Cases and Statutes Cited

• Capitol Square Review and Advisory Board v. Pinette, 515 US 753 (1995) 
• County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989) 
• Lynch v. Donnelly, 465 U.S. 668 (1984)