A mud-covered white cross stands on the southwest lawn of the Statehouse in Columbus, Ohio, Lord's day, Dec. 17, 1995. The Capitol Square Review and Advisory Board, which oversees activities on the Statehouse grounds, was forced to give the Ku Klux Klan permission to erect the cantankerous for four days during the holiday flavor. The cross has been a center of controversy resulting in the U.Due south. Supreme Court ruling in favor of the Klan's right to place the cross on the Statehouse lawn. The mud is a event of the cross having been knocked down by a grouping of youths protesting its presence. (AP Photograph/Chris Kasson, reprinted with permission of The Associated Press)

In Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995), the Supreme Court ruled that the Ku Klux Klan had the correct to erect a cross adjacent to a Christmas tree and a menorah on public holding.

The Court majority ended that the display did not violate the establishment clause of the First Subpoena and was consistent with the gratuitous speech communication rights of the Klan and other such organizations.

Ku Klux Klan wanted to put cross next to menorah, Christmas tree at Capitol

Capitol Square, the state capitol grounds in Columbus, Ohio, had long been used by diverse groups for gatherings, speechmaking, and erecting displays. In December 1993, the Capitol Square Review Lath authorized placing a Christmas tree and a menorah in the area just denied a asking past the Ku Klux Klan to erect a cantankerous on the grounds for a ii-calendar week period ending on Christmas Eve.

The Klan sued in a example that raised intriguing questions about the relationship of the establishment and free practice clauses; limits to costless spoken communication and "open public forums"; context, proximity, and symbolism; activities on regime grounds versus unattended displays; solitary versus multiple displays; and the nature of a "reasonable observer."

Courtroom said allowing Klan's cross did not violate First Amendment

Although the Supreme Court ruled 7-2 in the Klan's favor, the mix of concurrences, partial concurrences, and dissents reverberate the difficulty the justices had in agreeing on the issues.

The Court addressed the display inside the framework of the establishment clause considering the review board had denied the Klan's request on the grounds that its approval would violate this clause.

Justice Clarence Thomas, although concurring in the judgment, argued that the case did non present an establishment clause upshot because the "Klan had a primarily nonreligious purpose in erecting the cross" and had "appropriated i of the nearly sacred of religious symbols every bit a symbol of hate."

Previous cases permitted private religious expression in a public forum

Capitol Square resembled Lynch v. Donnelly (1984), in which the Supreme Court had permitted a city to display a creche as role of a larger Christmas brandish in a private park, the deviation being that Capitol Foursquare involved a private display on public property.

It also recalled County of Allegheny v. American Ceremonious Liberties Union (1989), in which the Court had rejected a privately sponsored religious brandish placed prominently inside a government building.

In Capitol Square, the Court plurality looked to Lamb's Chapel v. Centre Moriches Union Free School District (1993) and Widmar v. Vincent (1981), both of which permitted private religious expression in a public forum. Both also involved the religious activities of groups, rather than an unattended display. The Court found this difference to be significant.

Justices disagreed almost employ of endorsement test in this case

The justices disagreed about the appropriateness of the endorsement test in Capitol Square.

Justice Antonin Scalia, who wrote the plurality stance, thought it inappropriate because the display did not involve expression by the government itself. To him, individual religious expression in an acknowledged public forum could not violate the establishment clause.

Justices Sandra 24-hour interval O'Connor and David H. Souter, on the other hand, preferred the endorsement test for analyzing the case, believing that government endorsement can exist an issue even when private, symbolic speech is involved. They were satisfied, however, that a disclaimer placed on the cross offered sufficient protection against perceptions of government endorsement.

Would a reasonable person assume regime sponsorship of the cross?

A related give-and-take involved whether a "reasonable person" seeing a cantankerous close to the capitol would assume government sponsorship or approval of the display and what constituted a "reasonable person."

Justice John Paul Stevens, dissenting, was bothered by whatever unattended religious displays on public property.

Whereas activities outside regime buildings often involve groups seeking redress of grievances and thus do not imply regime endorsement, a freestanding display, co-ordinate to Stevens, would send a very unlike bulletin to all but the "ultra-reasonable observer."

Many reasonable people, he wrote, practice not sympathise the concept of a "public forum," but they "do know the difference between a state capitol and a church."

Stevens quoted at length from the bulk and dissenting opinions in the landmark Everson v. Board of Education (1947), in which the courtroom — although upholding regime reimbursement for the transportation cost to parents to send their children to parochial schools — had used strong separationist language relative to the establishment clause. Stevens underscored that his disagreement with the Court was over basics, not incidentals.

This article was originally published in 2009. Jane G. Rainey is a professor emeritus of political science at Eastern Kentucky University. She specializes in politics and faith in the United States. She speaks to civic and church groups on Commencement Subpoena establishment clause issues and the role of churches and faith-based groups in influencing public policy.

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