## Facts

- Capitol Square is a state-owned plaza surrounding the Ohio Statehouse that has long been used for public speeches, gatherings, and festivals, including religious and secular events.
- Ohio law and Board regulations made the Square available for public discussion and activities of broad public purpose under generally content-neutral criteria focused on safety, sanitation, and noninterference.
- The Ohio Ku Klux Klan applied to place an unattended cross display on Capitol Square during the Christmas season.
- The Capitol Square Review and Advisory Board denied the application, citing concern that the display would violate the Establishment Clause by appearing to endorse Christianity.
- The Klan sued, alleging the denial violated the First Amendment; the district court issued a preliminary injunction ordering the permit granted, and the Sixth Circuit affirmed.

## Issues

1. Whether a State violates the Establishment Clause by permitting, under a religiously neutral access policy, a private party to place an unattended religious symbol in a traditional public forum adjacent to the seat of government.
2. Whether avoiding an Establishment Clause violation constitutes a compelling interest sufficient to justify exclusion of private religious expression from a traditional public forum.

## Decision

- The Supreme Court affirmed the preliminary injunction in a 7–2 judgment.
- The Court held that permitting the unattended cross under a neutral access policy in a traditional public forum did not violate the Establishment Clause.
- A majority agreed the display was private expression in a forum open to diverse private speakers; the State therefore lacked a sufficient Establishment Clause basis to exclude it.
- Concurring Justices differed on rationale: some emphasized that a reasonable observer would not attribute the display to the State in an open forum, while others stressed that disclaimers may be appropriate to reduce any risk of perceived endorsement.
- Dissents argued that a prominent cross on statehouse grounds could reasonably be perceived as state endorsement of religion, allowing the Board to deny the permit.

## Legal Principles

- In a traditional public forum, content-based restrictions on speech are permissible only if necessary and narrowly drawn to serve a compelling state interest.
- Private religious expression is protected by the Free Speech Clause on the same terms as secular private expression; the State generally may not single it out for exclusion from an otherwise open forum.
- Compliance with the Establishment Clause can be a compelling interest, but the Clause is not violated merely because religious speech appears in a public forum made available on neutral terms.
- Where the government allows a range of private speakers and displays in an open forum, the presence of a private religious symbol is not, without more, attributable to the State as governmental endorsement.
- Disclaimers may be used to clarify that a display is private rather than governmental, though the Court did not adopt a single mandatory rule on when disclaimers are required.

## Conclusion

The Court held that Ohio could not exclude an unattended private cross from Capitol Square, a traditional public forum, under a neutral access policy based solely on fear that observers would view the display as state endorsement of religion, though several Justices indicated that disclaimers can help avoid perceived governmental association.


Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753 (1995)