• Key point: The display of a cross or other religious symbol on public property that is available to a wide variety of other forms of expression is constitutionally permissible.

• The United States Supreme Court ruled that the Ku Klux Klan had a constitutional right to erect a cross on public property surrounding a state capitol when the same property was used for a variety of other forms of speech and expression. 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. State law makes the square available “for use by the public … for free discussion of public questions, or for activities of a broad public purpose.” To use the square, a group must simply fill out an official application form and meet several conditions pertaining to safety and public order. A broad range of speakers and other gatherings of people have used the Capitol Square, including homosexual rights organizations, the Ku Klux Klan and the United Way. Also permitted have been a variety of unattended displays, including a state-sponsored lighted tree during the Christmas season, a privately-sponsored menorah during Chanukah, a display showing the progress of a United Way fundraising campaign, and booths and exhibits during arts festivals. In 1993, the Ku Klux Klan applied for permission to erect an unattended cross during the Christmas season in the Capitol Square area. This request was denied. The Ku Klux Klan asked a federal court to order the state to allow the cross. The court ruled that Capitol Square was a traditional public forum open to all without any policy against unattended displays; that the Klan’s cross was entirely private expression entitled to full first amendment protection; and that the state had failed to show that the display of the cross could reasonably be construed as endorsement of Christianity by the state. Based on this decision, the state permitted the Klan to erect a cross, and it granted several additional applications to erect crosses on Capitol Square during the 1993 Christmas season. A federal appeals court affirmed this decision, and the state appealed to the United States Supreme Court.

The Supreme Court, in a 7 to 2 ruling, upheld the right of the Klan to erect the cross. Justice Scalia, writing for the majority, observed:

[The Klan’s] religious display in Capitol Square was private expression. Our precedent establishes that private religious speech, far from being a first amendment orphan, is as fully protected under the free speech clause as secular private expression. Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince. Accordingly, we have not excluded from free-speech protections religious proselytizing or even acts of worship.

The state conceded that the erection of a cross is a protected form of free speech—but not on statehouse property. The Court noted that “[t]he right to use government property for one’s private expression depends upon whether the property has by law or tradition been given the status of a public forum, or rather has been reserved for specific official uses.” When the state turns its property into a public forum available to a wide variety of groups and forms of expression, its “right to limit protected expressive activity is sharply circumscribed—it may impose reasonable, content-neutral time, place and manner restrictions but it may regulate expressive content only if such a restriction is necessary, and narrowly drawn, to serve a compelling state interest.” The state argued that its ban on the Klan’s cross served a compelling state interest—the avoidance of an official endorsement of Christianity in violation of the first amendment’s ban on the establishment of religion. The Court noted that it had “twice previously addressed the combination of private religious expression, a forum available for public use, content-based regulation, and a state’s interest in complying with the establishment clause. Both times, we have struck down the restriction on religious content.” Lamb’s Chapel v. Center Moriches Union Free School District, 113 S.Ct. 2141 (1993); Widmar v. Vincent, 454 U.S. 263 (1981). In both of these cases the Court concluded that a public forum created by the state that was open to a broad spectrum of groups would provide only incidental benefit to religion.

The Court also rejected the state’s claim that by allowing the cross on statehouse property the impression would be given that the state was endorsing religion. The Court observed simply that “[w]e find it peculiar to say that government ‘promotes’ or ‘favors’ a religious display by giving it the same access to a public forum that all other displays enjoy. And as a matter of establishment clause jurisprudence, we have consistently held that it is no violation for government to enact neutral policies that happen to benefit religion.”

Justice Scalia further observed:

The contrary view … exiles private religious speech to a realm of less-protected expression heretofore inhabited only by sexually explicit displays and commercial speech. It will be a sad day when this Court casts piety in with pornography, and finds the first amendment more hospitable to private expletives than to private prayers. This would be merely bizarre were religious speech simply as protected by the Constitution as other forms of private speech; but it is outright perverse when one considers that private religious expression receives preferential treatment under the free exercise [of religion] clause. It is no answer to say that the establishment clause tempers religious speech. By its terms that clause applies only to the words and acts of government. It was never meant, and has never been read by this Court, to serve as an impediment to purely private religious speech connected to the state only through its occurrence in a public forum.

Justice Scalia summarized the Court’s decision as follows: “Religious 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 [the Klan’s cross from Capitol Square.” Capitol Square Review and Advisory Board v. Pinette, 115 S. Ct. 2440 (1995).

See Also: The Establishment Clause | The Right to Witness

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