Officials encounter a different set of constitutional issues when the government creates a public forum, such as a public square open to all, where private parties can present their own views. Federal courts have ruled that government may not discriminate in granting access to these public spaces. As a result, government may not be able to block displays that some find offensive, such as a cross erected by the Ku Klux Klan.

In one such case, Capitol Square Review Board v. Pinette (1995), the Supreme Court addressed the rights of private speakers to place religious displays in a state-created forum. In this case, the court ruled that Ohio officials were wrong to deny the Ku Klux Klan the right to place a large cross on Capitol Square, a 10-acre state-owned plaza surrounding the Ohio Statehouse in Columbus.

Capitol Square Review Board v. Pinette (1995)

Majority: Minority:
Breyer Ginsburg
Kennedy Stevens

Writing for a plurality of the court, Justice Scalia (joined by Justices Thomas, Kennedy and Rehnquist) argued that by excluding the cross, officials had violated the Ku Klux Klan’s rights of free expression. Scalia concluded that such a display represented private speech in a public forum, and in such a forum, the speech can never reasonably be attributed to the state. Therefore, he wrote, the government could not cite a violation of the Establishment Clause as a reason to exclude the display from a public forum. In a concurring opinion, Justice O’Connor (joined by Justices Souter and Breyer) agreed that in this case the Ku Klux Klan’s rights to free speech had been violated but disagreed on the question of whether private religious speech could ever be reasonably attributed to the government.

The disagreement in Pinette is reflected in a number of lower court cases. When government opens public space for the expression of competing views, the courts have ruled, it may not exclude religious views or discriminate in favor of or against certain faiths. If the space is open for private displays, then all parties are entitled to the same access. The rules of the forum must be the same for both religious and nonreligious displays.

This principle of equal access has come into play in cases involving holiday displays. For example, in Chabad of Southern Ohio & Congregation Lubavitch v. City of Cincinnati (2004), the 6th U.S. Circuit Court of Appeals ruled that the city of Cincinnati could not exclude a religious group from placing a Hanukkah menorah on the city’s main public square, an area that the court determined to be a public forum for private expression. The court thus concluded that the city had unconstitutionally attempted to exclude controversial displays, including those with religious content that might offend local citizens. The right of equal access to a public forum did not permit such an exclusion, the court ruled.

More recently, the widows of two American combat veterans brought suit against U.S. government officials for refusing to permit a Wiccan symbol (a fivepointed star surrounded by a circle) on headstones in military cemeteries. The government has a list of approved headstone emblems, which includes nearly 40 symbols of religious faith, but the list did not include the Wiccan symbol. In a lawsuit filed in a U.S. district court in Wisconsin, Circle Sanctuary v. Nicholson, the widows argued that in this type of public space, the government may not favor some religious faiths over others. In April 2007, the U.S. Department of Veteran Affairs settled the suit by agreeing to allow the Wiccan symbol on grave markers.

If local governments do not want to be held responsible for the content of private displays on public property, they may forbid all such displays, whether religious or secular. For instance, in Wells v. City & County of Denver (2001), the 10th Circuit upheld the city of Denver’s decision to ban all unattended displays at the entrance to the City and County Building. The ban did not apply to displays attended around the clock by their sponsors. The court found the distinction to be reasonable. With an attended display, the court concluded, there was no risk that the display’s message would be attributed to the city, and a prohibition of all unattended displays – religious and nonreligious alike – was a reasonable, nondiscriminatory regulation.

Photo credit: Corbis