Capitol Square Review and Advisory Board v. Pinette
Decided on June 29, 1995; 515 US 753

The state could not deny to the KKK a permit to erect an unattended cross
on government property that had been opened to the public for speech.


A. Issues Discussed: Free speech, establishment of religion

B. Legal Question Presented:

Does a State violate the Establishment Clause when, pursuant to a religiously neutral state policy, it permits a private party to display an unattended religious symbol in a traditional public forum located next to its seat of government?


A. Background:

"Ohio law makes Capitol Square, the Statehouse plaza in Columbus, a forum for discussion of public questions and for public activities, and gives petitioner Capitol Square Review and Advisory Board responsibility for regulating access to the square. To use the square, a group must simply fill out an official application form and meet several speech-neutral criteria.

After the Board denied, on Establishment Clause grounds, the application of respondent Ku Klux Klan to place an unattended cross on the square during the 1993 Christmas season, the Klan filed this suit. The District Court entered an injunction requiring issuance of the requested permit, and the Board permitted the Klan to erect its cross.

The Sixth Circuit affirmed the judgment, adding to a conflict among the Courts of Appeals as to whether a private, unattended display of a religious symbol in a public forum violates the Establishment Clause."

On certiorari, the US Supreme Court affirmed the judgment of the United States Court of Appeals for the Sixth Circuit.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Benson A. Wolman argued the cause for respondents. With him on the brief were David Goldberger, Barbara P. O'Toole, Steven R. Shapiro, and Peter Joy.

Briefs of amici curiae urging affirmance were filed for the American Center for Law & Justice by Jay Alan Sekulow, James M. Henderson, Sr., and Keith A. Fournier; for the Chabad House of Western Michigan, Inc., et al. by Nathan Lewin; for the Christian Legal Society by Thomas C. Berg, Steven T. McFarland, Samuel B. Casey, Gregory S. Baylor, and Kimberlee Wood Colby; for the Knights of Columbus Council 2961 et al. by Kevin J. Hasson; and for Liberty Counsel by Mathew D. Staver.
Michael J. Renner argued the cause for petitioners. With him on the briefs were Betty D. Montgomery, Attorney General of Ohio, and Christopher S. Cook, Andrew S. Bergman, Simon B. Karas, and Andrew I. Sutter, Assistant Attorneys General.

Briefs of amici curiae urging reversal were filed for the Town of Trumbell, Connecticut, et al. by Arthur A. Hiller, Martin B. Margulies, and Emanuel Margolis; for Americans United for Separation of Church and State et al. by Steven K. Green, Julie A. Segal, Norman Dorsen, Samuel Rabinove, Elliot M. Mincberg, David Saperstein, and Richard T. Cassidy; for the Council on Religious Freedom et al. by Lee Boothby, Walter E. Carson, Robert W. Nixon, and Rolland Truman; for the Freedom From Religion Foundation, Inc., by Robert R. Tiernan; and for the American Jewish Congress et al. by Marvin E. Frankel, Alan R. Friedman, Richard K. Milin, Marc D. Stern, Lois C. Waldman, and Steve Freeman.

"Because Capitol Square [the Statehouse plaza in Columbus, Ohio] is a traditional public forum, the Board may regulate the content of the Klan's expression there only if such a restriction is necessary, and narrowly drawn, to serve a compelling state interest.

Compliance with the Establishment Clause may be a state interest sufficiently compelling to justify content-based restrictions on speech, but the conclusion that that interest is not implicated in this case is strongly suggested by the presence here of the factors the Court considered determinative in striking down state restrictions on religious content in Lamb's Chapel, and Widmar v. Vincent. As in those cases, the State did not sponsor respondents' expression, the expression was made on government property that had been opened to the public for speech, and permission was requested through the same application process and on the same terms required of other private groups...

Nothing prevents Ohio from requiring all private displays in the square to be identified as such, but it may not, on the claim of misperception of official endorsement, ban all private religious speech from the square, or discriminate against it by requiring religious speech alone to disclaim public sponsorship."

The United States Supreme Court affirmed the Court of Appeals for the Sixth Circuit judgment.

Justice Vote: 7 Pro vs. 2 Con
  • Scalia, A. Pro (Wrote majority opinion)
  • O'Connor, S. Pro (Wrote concurring opinion)
  • Souter, D. Pro (Wrote concurring opinion)
  • Thomas, C. Pro (Wrote concurring opinion)
  • Rehnquist, W. Pro (Joined majority opinion)
  • Kennedy, A. Pro (Joined majority opinion)
  • Breyer, S. Pro (Joined majority opinion)
  • Stevens, J. Con (Wrote dissenting opinion)
  • Ginsburg, R. Con (Wrote dissenting opinion)

The ACLU, as amicus for respondents, urged affirmance of the judgment of the United States Court of Appeals for the Sixth Circuit; the Supreme Court affirmed in a 7-2 vote, giving the ACLU an apparent win.