Vincent J. Pinette Donnie A. Carr Knights of the Ku Klux Klan v. Capitol Square Review and Advisory Board Ronald T. Keller Daniel Shellenbarger Richard H. Finan
Docket: 93-4367
Court: Court of Appeals for the Sixth Circuit; July 25, 1994; Federal Appellate Court
A private organization's display of a religious symbol in a public forum does not violate the Establishment Clause if access is equal and the display is truly private, as established in a prior case. The Capitol Square Review and Advisory Board appeals a district court's injunction requiring it to allow Vincent J. Pinette and the Knights of the Ku Klux Klan to erect a wooden cross in Capitol Square, a public area in Columbus, Ohio. The court found that the square, being a public forum, and the Klan's display being private speech, would not be perceived as a government endorsement of religion, thus affirming that the display does not violate the Establishment Clause.
Capitol Square is a ten-acre public area owned by the State of Ohio, adjacent to the Statehouse, where various public events have occurred for over a century. The Capitol Square Review and Advisory Board regulates its use. In November 1993, the board initially voted to ban unattended displays during December but reversed this decision after public backlash, allowing a Christmas tree and a menorah. On November 29, 1993, the Klan applied for a permit to display a cross but was denied on December 3 by the board's executive director, citing constitutional compliance. The Klan appealed the decision, leading to a recommendation for denial, which the board adopted.
On December 17, the Klan, represented by CEO Vincent Pinette, sought an injunction in federal court to compel a board to issue a permit for a cross display in Capitol Square. After a hearing on December 20, the court granted the injunction on December 21, determining that Capitol Square qualified as a traditional public forum and that the Klan's cross constituted protected speech. The court found no violation of the Establishment Clause, reasoning that a reasonable observer would not interpret the private religious symbol as government endorsement of religion. Following the injunction, the board sought a stay, which the court denied, and subsequently appealed the decision. An emergency stay request to Supreme Court Justice John Paul Stevens was also denied. The Klan erected the cross on December 21, where it remained for at least a day until vandalized.
The case's mootness was acknowledged due to the injunction's expiration and the cross's removal, yet the court maintained jurisdiction based on the likelihood of recurring similar disputes. The district court's ruling was subject to clear error review for factual findings and de novo review for legal conclusions due to the merger of the injunction hearing with a merits trial. The First Amendment's Religion Clauses, applicable to states via the Fourteenth Amendment, protect private religious speech from governmental discrimination in public forums absent compelling interests.
Speakers conveying religious messages are entitled to equal access to public forums as those delivering secular messages, supported by several Supreme Court cases. The distinction between government endorsement of religion, which is prohibited by the Establishment Clause, and private endorsement of religion, which is protected by the Free Speech and Free Exercise Clauses, is emphasized. Capitol Square is recognized as a traditional public forum, historically utilized for diverse assemblies and debates, where government restrictions on expressive activities are limited. Any content-based exclusion by the state must serve a compelling interest and be narrowly tailored. Regulations on speech in such forums are subject to strict scrutiny as affirmed by the Supreme Court. The Ku Klux Klan's intention to erect a cross in the square was deemed not a violation of the Establishment Clause because it would not be perceived by a reasonable observer as a government endorsement of religion, despite arguments that the cross's religious significance and its location might imply state endorsement of Christianity.
The excerpt outlines the legal framework governing the display of religious symbols in public spaces, particularly under the Establishment Clause of the United States Constitution. To be constitutional, a government display of a religious symbol must serve a secular purpose, not advance or inhibit religion as its primary effect, and avoid excessive entanglement with religion, as established by the Lemon test. The standard has evolved to assess whether a reasonable observer perceives government endorsement of religion.
In this case, the display in question is privately funded, maintained, and includes a disclaimer of government support, distinguishing it from government-sponsored displays. The precedent set in *Americans United* is cited, which upheld the constitutionality of a menorah in a public square despite its religious nature, due to its private sponsorship and location in a public forum accessible to all.
Defendants argue that the presence of a cross in a public space could be interpreted as an endorsement of Christianity by the state, despite it being private speech. They express concern that uninformed observers might misinterpret the display. However, the text argues against restricting speech based on the perceptions of hypothetical individuals, likening this concern to the concept of a "Heckler's Veto." The conclusion asserts that the Establishment Clause prohibits only government-sponsored religious speech, allowing for private religious expression in public forums without it being construed as government endorsement.
Defendants assert that private religious speech can infringe upon the Establishment Clause, citing the County of Allegheny case, where a religious display in a non-public forum was enjoined due to perceived government endorsement. In contrast, Capitol Square in Columbus is characterized as an open public forum, with no evidence of preferential treatment towards the Klan's display. The defendants reference three Seventh Circuit cases to support their claims, but these cases are distinguishable as they involved exclusive locations that constituted government endorsement of religious messages. In particular, ACLU v. St. Charles involved a lighted cross on a public building, and Gonzales v. North Township involved a crucifix that became governmental speech due to its context.
The excerpt emphasizes that the presence of religious symbols in a true public forum does not violate the Establishment Clause, as the government does not automatically endorse all viewpoints it does not censor. It criticizes defendants for overemphasizing the "far removed from the seat of government" language from Small, noting that the core holding is that private religious speech in a public forum is protected. The government cannot selectively deny access to public forums based on the content of speech, as this would violate both the Free Speech and Free Exercise Clauses, as well as the Equal Protection Clause. The First Amendment protects even unpopular speech, ensuring equal opportunity for all viewpoints in public discourse. The conclusion affirms the importance of governmental neutrality in regulating public forums, stating that the religious content of private speech is irrelevant for First Amendment purposes. The judgment is affirmed.
