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Aclu in the Court

ACLU Case Summary

Docket 94-780

PINETTE et al.

Decided June 29, 1995


Whether the temporary, unattended display of a Ku Klux Klan cross on a public forum open to all other political and religious expression violates the Establishment Clause solely because the public forum is in proximity to the seat of government.


The Free Speech and Free Exercise Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment require a state to permit the temporary unattended display of a Ku Klux Klan cross in a traditional public forum that is open to other political and religious symbols -- even if that forum is near the state of government -- absent any special indicia of endorsement.

1. The State's discriminatory refusal to permit the display of the Ku Klux Klan cross in a traditional public forum where the State has permitted other secular and religious symbols violates the Free Speech and Free Exercise Clauses of the First Amendment.

In this case, the State has singled out the Ku Klux Klan and has refused to permit the Klan to display its cross in the Capitol Square forum. The cross is symbolic of the Klan's view about politics and religion.

The record establishes that the denial was based upon the controversial communication of a controversial speaker. On that record, the State clearly discriminated among political and religious symbols. Moreover, the discrimination was unlawfully accomplished by means of standardless procedures permitting the exercise of unbridled discretion.

The State's only response to the claim of discrimination is that the Board relied upon the Establishment Clause; however, this explanation rings hollow given the State's tolerance of other religious symbols at the same site.

2. Given the facts of this case, both courts below correctly held that no reasonable observer could conclude that the Ku Klux Klan display of its cross on the Capitol Square public forum constituted an endorsement or appearance of endorsement of religion.

The State erroneously insists that, because of the inherent power of an unattended cross as a symbol, the Establishment Clause automatically bans from the Capitol Square forum the unattended display of the Klan cross at any location at any time under any circumstances. This flat ban is wrong as a matter of law precisely because it forecloses consideration of all relevant facts and circumstances.

The State's contention that the Establishment Clause flatly bans all symbols alleged to be "purely religious" precludes the application of the "reasonable observer" standard set forth by this Court in County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) and followed by the courts below. While the State claims that banning the Klan cross is necessary to serve its interest in obeying the Establishment Clause, it ignores its parallel obligation to fulfill the requirements of the Free Speech and Free Exercise Clauses. These interests must be reconciled on a case-by-case basis by use of the "reasonable observer" standard.

The State fails to acknowledge that providing a public forum is not an endorsement of the speech thereon. It also ignores the distinction, recognized in Allegheny, between private religious expression in a public forum and government religious expression.

3. Privately sponsored displays of religious symbols cannot be excluded from a quintessential public forum even at the seat of government, absent some indicia of state endorsement. Indeed, the defining characteristic of a public forum is that the state may not discriminate against speech on the basis of content.

Respondents do not quarrel with the endorsement test under the Establishment Clause as it has been developed by this Court. But, endorsement cannot be presumed from the mere fact of private speech in a public forum. Yet, without this inference, there is no plausible claim of endorsement on the facts of this case, as both lower courts found. The judgment below should therefore be affirmed.

Copyright 1996, The American Civil Liberties Union

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