holding that a Latin cross erected by the Klu Klux Klan in the public square outside the state capitol did not violate the Establishment Clause, because “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.”
How later courts described this case
- holding that a Latin cross erected by the Klu Klux Klan in the public square outside the state capitol did not violate the Establishment Clause, because “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.”
- explaining that if the Es- tablishment Clause could apply to bar private religious expression in public forums, government officials would face a Catch-22: permitting the speech could lead to an Establishment Clause violation, whereas restricting the speech could lead to a free speech or free exercise violation
- finding that a reasonable observer cannot perceive a cross on public property as an endorsement of religion where various religious and secular groups engage in expressive conduct on the property and a disclaimer of government endorsement accompanies the display
- stating that in a public forum a state “may impose reasonable, content-neutral time, place, and manner restrictions.. .but it may regulate expressive content only if such a restriction is necessary, and narrowly drawn, to serve a compelling state interest.”
Written by the judges who cited it.
The opinion
Justice Thomas,
concurring.
I join the Court’s conclusion that petitioners’ exclusion of the Ku Klux Klan’s cross cannot be justified on Establishment Clause grounds. But the fact that the legal issue before us involves the Establishment Clause should not lead anyone to think that a cross erected by the Ku Klux Klan is a purely religious symbol. The erection of such a cross is a political act, not a Christian one.
There is little doubt that the Klan’s main objective is to establish a racist white government in the United States. In Klan ceremony, the cross is a symbol of white supremacy and a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan. The cross is associated with the Klan not because of religious worship, but because of the Klan’s practice of cross burning. Cross burning was entirely unknown to the early Ku Klux Klan, which emerged in some Southern States during Reconstruction. W. Wade, The Fiery Cross: The Ku Klux Klan in America 146 (1987). The practice appears to have been the product of Thomas Dixon, whose book The Clansman formed the story for the movie, The Birth of a Nation. See M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia 145-146 (1991). In the book, cross burning is borrowed from an “old Scottish rite” (Dixon apparently believed that the members of the Reconstruction Ku Klux Klan were the “reincarnated souls of the *771 Clansmen of Old Scotland”) that the Klan uses to celebrate the execution of a former slave. T. Dixon, The Clansman: An Historical Romance of the Ku Klux Klan 324-326 (1905). Although the cross took on some religious significance in the 1920’s when the Klan became connected with certain southern white clergy, by the postwar period it had reverted to its original function as an instrument of intimidation. Wade, supra, at 185, 279.
To be sure, the cross appears to serve as a religious symbol of Christianity for some Klan members. The hymn “The Old Rugged Cross” is sometimes played during cross burnings. See W. Moore, A Sheet and a Cross: A Symbolic Analysis of the Ku Klux Klan 287-288 (Ph.D. dissertation, Tulane University, 1975). But to the extent that the Klan had a message to communicate in Capitol Square, it was primarily a political one. During his testimony before the District Court, the leader of the local Klan testified that the cross was seen “as a symbol of freedom, as a symbol of trying to unite our people.” App. 150. The Klan chapter wished to erect the cross because it was also “a symbol of freedom from tyranny,” and because it “was also incorporated in the confederate battle flag.” Ibid. Of course, the cross also had some religious connotation; the Klan leader linked the cross to what he claimed was one of the central purposes of the Klan: “to establish a Christian government in America.” Id., at 142-145. But surely this message was both political and religious in nature.
Although the Klan might have sought to convey a message with some religious component, I think that the Klan had a primarily nonreligious purpose in erecting the cross. The Klan simply has appropriated one of the most sacred of religious symbols as a symbol of hate. In my mind, this suggests that this case may not have truly involved the Establishment Clause, although I agree with the Court’s disposition because of the manner in which the case has come *772 before us. In the end, there may be much less here than meets the eye.