Amicus Curiae Brief — Capitol SquareReview and Advisory Bd. v. Pinette

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Supreme Oourt, U.S. |

FILED

No. 94-780 MAR 2 2 1995

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM,

1994

CAPITOL SQUARE REVIEW AND ADVISORY BOARD,

RONALD T. KELLER, DANIEL SHELLENBARGER, and

OHIO SENATOR RICHARD T. FINAN,

Petitioners,

VINCENT J. PINETTE, DONNIE A. CARR,

and KNIGHTS OF THE KU KLUX KLAN,

Respondents.

On Writ of Certiorari to the

Sixth Circuit Court of Appeals

BRIEF OF LIBERTY COUNSEL AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

om SSE

Mathew D. Staver

Frederick H. Nelson

Nicole Arfaras Kerr

Gina R. Perez Toro

LIBERTY COUNSEL

1900 Summit Tower Blvd.

Suite 540

Onlando, Florida 32810

(407) 875-2100

TABLE OF CONTENTS

PABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

SPEAKERS WITH A’ RELIGIOUS MESSAGE

ENTITLED THE SAME ACCESS TO TRADITIONAL

PUBLIC FORA AS SPEAKERS WITH A SECULAR

MESSAGE

A. Private Religious Speech In A_ Traditional

Public Forum Does Not Implicate The

Establishment Clause

B. Selective Exclusion Of A Privately Sponsored

Cross In A Traditional Public Forum Is An

Unconstitutional Content And Viewpoint-Based

Restriction

|. Allowing secular speech but prohibiting religious

speech is a content-based restriction

2. Allowing one brand of religious speech but

prohibiting another brand of religious speech is

a viewpoint-based restriction

SELECTIVE EXCLUSION OF RELIGIOUS SPEECH FROM

A TRADITIONAL PUBLIC FORUM VIOLATES THI

ESTABLISHMENT CLAUSE 1S

A \llowing The Private Display Of A Jewish

Menorah While Flatly Banning The Private

Display Of A Klan Cross Violates The

Establishment Clause 15

B Allowing Secular Speech In A_ Traditional

Public Forum While Selectively Excluding

Religious Speech Violates The Establishment

Claus

IT]

TARGETING THE KLAN CROSS FOR SELECTIVE

EXCLUSION FROM A TRADITIONAL PUBLIC FORUM

VIOLATES THE FREE EXERCISE CLAUSI 25

CONCLUSION

11]

TABLE OF AUTHORITIES

CASE LAW:

Abington School District v. Schempp, 374 U.S. 203

(1963) im, 30, 24. £2

ACLU v. St. Charles, 794 F.2d 271 (7th Cir. 1986) 22

Aguilar v. Felton, 473 U.S. 402 (1985) 16

Americans United for Separation of Church and State \

City of Grand Rapids, 980 F.2d 1538 (6th Cir. 1992) 8, 12

Arlington County Republican Committee v. Arlington County,

790 F. Supp. 618, 621 (E.D. Va. 1992) 2

Board of Education of Kiryas Joel v. Grumet, 114 S. Ct

2481 (1994) 15-17, 24

Bowen v. Roy, 476 U.S. 693 (1986) 28

Brounfeld v. Brown, 366 U.S. 599 (1961) 26

Brown v. Louisiana, 383 U.S. 131 (1966) 11, 12

Burson v. Freeman, 112 S. Ct. 1846 (1992) 4

( antwell v. Connecticut, 310 U.S. 296 (1940) 4.6

Carey v. Brown, 447 U.S. 455 9

Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383

(11th Cir. 1993) 7.8

Church of the Lukumt Babalu Aye v. City of Hialeah,

113 S. Ct. 2217 (1993) 26

City Council of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789 (1984) 13, 15

Coates v. City of Cincinnati, 402 U.S. 611 (1971) 4

Cohen v. California. 403 U.S. 15 (1971) 7)

Cornelius v. NAACP Legal Defense and Ed. Fund. Ini

473 U.S. 788 (1985) 3

Corporation of Presiding Bishop of Church of Jesus Christ

of Latter-day Saints v. Amos, 483 U.S. 327 (1987) 16

County of Allegheny v. American Civil Liberties Union.

492 U.S. 573 (1989)

Cox v. Louisiana, 379 U.S. 536 (1965) Y

Edwards v. Aguillard, 482 U.S. 578 (1987) 1S, 16

Employment Division, Dept. of Human Res. v. Smith, 494 U.S

872 (1990) 25, 28

Engel v. Vitale. 370 U.S. 421 (1962) 5

Estate of Thornton v. Caldor. Inc.. 472 U.S. 703 (1985S) 15

Fowler v. Rhode Island, 345 U.S. 67 (1953) 26

Frisby v. Schultz, 487 U.S. 474 (1988) 2-4

Gonzales v. North Township 12

Heffron v. ISKCON, 452 U.S. 640 (1981) 2,4

Hernandez v. C.1.R., 490 U.S. 680 (1989) 2/7, 28

ISKCON v. Lee, 112 S. Ct. 2711 (1992) :

Jones \ Wolf, 443 U.S. 595 (1979)

Kreisner v. City of San Diego, 988 F.2d 883 (9th Cir. 1993) 7

Kunz v. New York. 340 U.S. 290 (1951)

Lamb's Chapel v. Center Moriches School Dist. .

113 S. Ct. 2141 (1993)

Larson v. Valente. 456 U.S. 228 (1982)

Lee v. Wetsman, 112 S. Ct. 2649 (1992) 23

Lemon v. Kurtzman. 403 U.S. 602 (1971) 16.

Lynch \ Donnelly. 465 U.S. 668 (| 1984)

McDaniel v. Paty, 435 U.S. 617 (1978) 4.6. 8, 17,

McGowan v. Maryland, 366 U.S. 420 (1961)

VUeek v. Pittenger. 421 U.S. 349 (1975)

O'Hair vy. Andrus, 613 F.2d 931 (D.C. Cir. 1979)

Papa hristou v. City of Ja kson\ tlle. 405 U.S 156 ( 1972)

Perry Education Ass'n. v. Perry Local Educators’ Ass'n

460 U.S. 37 (1983)

Police Dept. of the City of Chicago v. Mo

408 U.S. 92. 96 (1972)

Presbyterian Church tn U.S. v. Mary Elizabeth Bluehull

Memorial Presbyterian Church, 398 U.S. 440 (1969)

R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992)

Saia v. New York, 334 U.S. 558 (1948)

Schacht v. United States, 398 U.S. 60 (1970)

Schneider v. State. 308 U.S. 147 (1939)

Sherbert v. Verner. 374 U.S. 398 (1963)

Simon & Schuster v. New York Crime Victims Board.

112 S. Ct. 5O1 (1991) 2, 9,

Spence v. Washington, 418 U.S. 405 (1974) 11,

Stone v. Graham, 449 U.S. 39 (1980)

Terminiello v. Chicago, 337 U.S. 1 (1949)

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)

Texas v. Johnson, 491 U.S. 397 (1989) 9, The’ te,

Thomas v. Review Bd. of Indiana Emplc yment Security Dis

450 U.S. 707 (1981)

Tilton v. Richardson. 403 U.S. 672 (1971)

Tinker v. Des Moines Independent Community School District,

393 U.S. 503 (1969) 11,

Torcaso v. Watkins. 367 U.S. 488 (1961) 15.

United States v. Ballard, 322 U.S. 78 (1944) te

inda. 497 U.S. 720 (1990)

—

United States v. Ko

United States v. Lee. 455 U.S. 252 (1982)

United States v. O'Brien, 391 U.S. 367 (1968)

Vil

Wallace v. Jaffree, 472 U.S. 38 (1985) bias 12, 24

Walz v. Tax Comm’n of New York City, 397 U.S

Ln ee ae _ bes 4 4,25, 26

West Virginia Board of Education v. Barnette,

319 U.S. 624 (1943) 11, 17, 30

Whitney v. California, 274 U.S. 357 (1927) anh OER Oe 9

Widmar v. Vincent, 454 U.S

264 (1981) .. 4, 6-8, 12, 17, 18, 24, 25

Wisconsin v. Yoder, 406 U.S. 205 (1972) 28

Witters v. Washington Dept. of Services for the Blind,

474 U.S. 481 (1986) oe

Wolman v. Walter. 433 U.S. 229 (1977) 16

STATUTES:

Ohio Administrative Code § 128-04-02(A) a

Religious Freedom Restoration Act of 1993,

42 U.S.C. § 2000bb 26, 28

OTHER:

Aaron-Golan, The Illustrated Bible Dictionary (1981) 19

Adams, The Encyclopedia of Religion (1987) 20, 21

The American Heritage Dictionary (2d ed. 1983) Appendix A

Dreyfuss, Symbol Sourcebook: An Authoritative Guide

to International Graphic Smbols (1972) . Appendix A

Vill

Edelstein, “Fashion Look of the ‘90s: Simple Comfortable,"

Jewelers Circular Keystone 128 (August 1989) oa

F.R. Webber, Church Symbolism (1971) 19, 20, Appendix A

Friedrich Rest, Our Christian Symbols (1954) 19, Appendix A

Fritz, The Use of Symblism in Christian

Education (1952) Appendix A

Gertrude Grace Sill, 4 Handbook of Symbols and Christian Art

(1975) | | 2]

Hangen, Symbols Our Universal

Language (1962) \ppendix A

Miller, A 7reasury of the Cross (1956) Appendix A

Rosemary Ellen Guiley. The Encyclopedia of Witches

and Witchcraft (1989) ol, ae

Roch, 7he Book of Signs (1955) Appendix A

Schupak, “Fall Fashion Forecast’ What's Old is Very New,

164 Jewelers Circular Keystone 88 (August 1993) os

Stafford, Christian Symbolism (1942) 4. Appendix A

Szabo, “Fashion's New Crusade: Sacred Images in

Fashion,” Harper's Bazaar 99 (September 1993 a

The International Standard Encyclopedia (1939) 1Y

Tikkun (Sept. 1994) 22

INTEREST OF AMICI CURIAE

Amici Curiae file this brief in support of Respondents. The

Specific statements of Amici Curiae are set forth in Appendix B.'

SUMMARY OF ARGUMENT

Capitol Square is a traditional public forum open for

expressive activities. Historical, secular and religious expression

occurs in Capitol Square including the display of free-standing

objects. The year prior to the incident leading to this case, the

Governor, himself, dedicated a religious Menorah in Capitol

Square. The State of Ohio actually approved the display of the

Menorah and a Christmas tree, but disapproved of the Klan’s cross

primarily because the State is opposed to the Klan’s message. The

State excluded only the Klan’s cross, but allowed the display of the

Christmas tree and the Menorah, arguing that the Menorah was not

religious and that the State was compelled to exclude the Klan’s

cross because it was religious. In an open forum, the government

may not exclude religious speech on the basis that to allow such

speech would violate the Establishment Clause. In an open forum,

the Establishment Clause is not even implicated. To the contrary,

In an open forum the Establishment Clause is violated when the

government excludes religious speech solely because of the content

fo exclude such speech is both a violation of the Free Speech

Clause and the Establishment Clause. In this case, the State further

violated the Establishment Clause by preferring one religion (Jewish

Menorah) over another religion (Klan’s cross)

Che cross has differing meanings to various observers, both

secular and sectarian. In an open forum, the governmeni need not

entangle itself with whether the Christian symbo! has become

sufficiently secularized, because religious speech can not be

excluded no matter how secular or sectarian

Amici: Curiae tile this brief with the consent of all parties. Letter:

of consent have been filed with the Clerk ot the Court pursuant to Rule

6.2 of the Rules of this Court

Finally, the selective exclusion of the Klan’s cross while

allowing secular and other sectarian speech, violates the Klan’s free

exercise rights. The display of the cross is part of the Klan’s

sincerely-held religious belief and selective exclusion of that

sectarian view while allowing secular and other sectarian speech

violates the Klan’s freedom of religion.

ARGUMENT

SPEAKERS WITH A RELIGIOUS MESSAGE ARE

ENTITLED THE SAME ACCESS TO TRADITIONAL

PUBLIC FORA AS SPEAKERS WITH A SECULAR

MESSAGE.

A. Private Religious Speech In A Traditional Public

Forum Does Not Implicate The Establishment

Clause.

The First Amendment Free Speech Clause protects the free

flow of ideas in a democratic society. The right to free speech lies

"at the foundation of free government by free men.” Arlington

County Republican Committee v. Arlington County, 790 F. Supp.

618, 621 (E.D. Va. 1992) (quoting Schneider v. State, 308 U.S.

147 (1939)). “The constitutional right of free expression is . . .

intended to remove governmental restraints from the arena of public

discussion, putting the decision as to what views shall be voiced

largely into the hands of each of us . . . in the belief that no other

approach would comport with the premise of individual dignity and

choice upon which our political system rests." Simon & Schuswer

v. New York Crime Victims Board, 112 S. Ct. 501, 508 (1991).

"To ascertain what limits, if any, may be placed on

protected speech, [this Court has] often focused on the place of that

speech, considering the nature of the forum the speaker seeks to

employ.” Frisby v. Schultz, 487 U.S. 474, 479 (1988). See also

Heffron v. ISKCON, 452 U.S. 640 (1981) (hereinafter "Heffron" );

]

United States v. Kokinda, 497 U.S. 720 (1990). Indeed,

[p]ublic places are of necessity the locus for

discussion of public issues, as well as protest against

arbitrary government action. At the heart of our

jurisprudence lies the principle that in a free nation

citizens must have the right to gather and speak with

other persons in public places. The recognition that

certain government owned property is a public

forum provides open notice to citizens that their

freedoms may be exercised there without fear of a

censorial government, adding tangible reinforcement

to the idea that we are a free people.

ISKCON v. Lee, 112 S. Ct. 2711, 2716-2717 (1992) (Kennedy, J.,

concurring) (hereinafter "JSKCON").

Parks, public streets and sidewalks "have immemorially been

held in trust for the use of the public . . . and are properly

considered traditional public fora." Frisby, 487 U.S: at 480-481.

See also Perry Education Ass'n. v. Perry Local Educators’ Ass’n.,

460 U.S. 37, 45 (1983). "The purpose of the public forum doctrine

is to give effect to the broad command of the First Amendment to

protect speech from governmental interference." /SKCON, 112

S. Ct. at 2717 (Kennedy, J., concurring). This Court has stated:

In these quintessential public fora, the government

may not prohibit all communicative activity. For

the State to enforce a content-based exclusion it

must show that its regulation is necessary to serve a

compelling state interest and that it is narrowly

drawn to achieve thatend.... The State may also

enforce regulations of the time, place, and manner

of expression which are content-neutral, are

narrowly tailored to serve a significant government

interest, and leave open ample alternative channels

of communication.

Frisby, 487 U.S. at 481 (quoting Perry Education Ass’n., 460 U.S

at 37).

This Court has acknowledged the right of religious speakers

to use public forums on equal terms with others.-. See Widmar v.

Vincent, 454 U.S. 264, 272 n.12 (1981); Tilton v. Richardson, 403

U.S. 672 (1971); ISKCON, 452 U.S. at 640; Saia v. New York, 334

U.S. 558 (1948). Even though "public debate of religious ideas,

like any other, may arouse emotion, may incite, may foment

religious divisiveness and strife does not rob it of constitutional

protection.” McDaniel v. Paty, 435 U.S. 617, 640 (1978)(Brennan,

J., concurring); see also Terminiello v. Chicago, 337 U.S. 1, 4-5

(1949); Cantwell v. Connecticut, 310 U.S. 296, 309-310 (1940)

The mere fact that the government wishes to reduce or eliminate

religious strife and entanglement “does not place religious

discussion, association, or political participation in a stratus less

preferred than rights of discussion, association, and political

participation generally." McDaniel, 435 U.S. at 640 (Brennan, J.,

concurring). "Adherents of particular faiths and individual churches

frequently take strong positions on public issues including . . .

vigorous advocacy of legal or constitution: positions. Of course,

churches as much as secular bodies and private citizens have that

right." Walz v. Tax Comm'n, 397 U.S. 664, 670 (1970).

Capitol Square is a traditional public forum. See Petition for

Certiorari (hereinafter "P.C.") 4,5, A2, Al4, A28; Respondents’

Brief in Opposition to Petition for Certiorari (hereinafter "R.B.") 3

n.5, 4. Petitioners do not dispute this public forum designation.

P.C. 3, 18; Petitioners’ Reply Brief to Res. Opposition to Petition

* The Fourteenth Amendment is also implicated because the State's

action is content-based. See, e.g., Burson v. Freeman, 112 S. Ct. 1846

(1992); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Coates

v. City of Cincinnati, 402 U.S. 611 (1971).

for Cert. (hereinafter "P.R.B.") 1, 2.3. The State of Ohio owns

Capitol Square and erected the State’s capitol building (hereinafter

"Statehouse") on that property. P.C. 4,5, A2, Al4, A28. Capitol

Square is located in downtown Columbus, Ohio. P.C. 4, 5, A2,

A1l4, A28. For more than a century the Statehouse has housed both

chambers of the Ohio General Assembly as well as the offices of the

Governor and other statewide officeholders. P.C. 4, 5, A2, Al4,

A28. Capitol Square grounds are made available for speeches and

public gathering by groups advocating various causes, both secular

and religious. P.C. 4, 5, Al6, A30; P.R.B. 6.4 Capitol Square has

also been used for unattended displays. P.C. Al6, A30: P.R.B. 6.

These include a State-sponsored Christmas tree and a free standing

Menorah’ sponsored by the Lubavitch sect. P.C. 5, 30: R.B. 3.4.7.

Al3. The Menorah is a nine-armed candelabrum that serves as the

primary symbol of the Jewish holiday of Hanukkah. This Court in

Allegheny stated that “[t}he menorah . . . is a religious symbol."

Allegheny, 492 U.S. at 613.°

* "Capitol . . . grounds are available for use by the public . . . for free

discussion of public questions . . . ." Ohio Administrative Code § 128-04-

O2(A).

* During hearings, evidence revealed that political speeches, gay rights

demonstrations, anti-war demonstrations and other demonstrations

regarding various types of public issues were routinely permitted on

Capitol Square, as well as booths and other displays erected during art

festivals, a united campaign "thermometer," the State Christmas tree and

the Menorah. R.B. AI5S-A16.

> This free-standing Menorah had no disclaimer and was dedicated by

Ohio's Governor in 1993. See R.B. A23. (Governor dedicating menorah.

Plaintiffs’ Supplemental Exhibit No. 101).

* Cantor Jack Chomosky of Tifereth Israel Congregation in Columbus,

Ohio, testified as an expert that the Menorah permitted by the State of

Ohio, like other Chanukah Menorahs, "is a religious symbol. It is used in

conjunction with fulfilling the obligations incumbent upon a Jew for the

celebration of Chanukah." See R.B. 8. Further, Mr. Chomosky took

“exception” to the State's contention that the Menorah was a seasonal

Petitioners argue that excluding religious speech in the form

of displays is necessary in order to abide by the Establishment

Clause. P.C. 3, 9, 11, 24, AlS; P.R.B. 6, 8. However, nothing

could be further from the truth. The "State’s goal of preventing

sectarian bickering and strife may not be accomplished by regulating

religious speech and political association." McDaniel, 435 U.S. at

640 (Brennan, J., concurring); see also, P.R.B. 5. The fact that the

Klan’s "public debate of religious ideas, like any other, may arouse

emotion, may incite, may foment religious divisiveness and strife

does not rob it of constitutional protection." McDaniel, 435 U.S.

at 640 (Brennan, J., concurring); see also Cantwell, 310 U.S. at

309-310; cf. Terminiello, 337 U.S. at 4-5; R.B. 5.

Petitioners fear that the “public forum doctrine would

swallow up the Establishment Clause." P.C. 3; P.R.B. 8. This

argument has already been addressed and disposed of in Widmar.

In that case, eleven students of the University of Missouri at Kansas

City brought suit to challenge a University regulation prohibiting a

religious group from meeting in University facilities on equal terms

with other students’ organizations. /d. at 265-66. Unlike the case

at hand, the University was not a traditional public forum. /d. at

267-268; P.C. 3, 18; P.R.B. 1, 2. Nonetheless, this Court

announced that "[t]he Constitution forbids a State to enforce certain

exclusions from a forum generally open to the public, even if it was

not required to create the forum in the first place." Widmar, 454

U.S. at 267-268. This Court noted that religious worship and

discussion “are forms of speech and association protected by the

First Amendment," /d. at 269, and "[iJn order to justify

discriminatory exclusion from a public forum based on the reiigious

content of a group’s intended speech, the University . . . must show

that its regulation is necessary to serve a compelling state interest

and that it is narrowly drawn to achieve that end." /d. at 269-70.

The University in Widmar, like the Petitioners in this case,

claimed that the discriminatory exclusion of religion was based on

display and “not a religious symbol.” See R.B. 8.

the University’s compelling interest in abiding by the Establishment

Clause. P.C. 9, 11, 24, A15; P.R.B. 6; see also Widmar, 454 U.S.

at 271-72. This Court dismissed the argument by explaining that on

an open-forum policy, ensuring nondiscrimination against religious

speech is a secular purpose and avoids entanglement with religion.

Widmar, 454 U.S. at 271-72.

This Court has prescribed the "reasonable observer’s"

standard to determine whether a display gives the appearance of

government endorsement. See Allegheny, 492 U.S. at 620; Witters

v. Washington Dept. of Services for the Blind, 474 U.S. 481, 493

(1986) (O’Connor J., concurring in part and concurring in

judgement). This endorsement test

is not based on perceptions of the ill-informed, first-time

visitor who simply views a religious symbol in a

government building without regard to public forum issues

. "This hypothetical observer is informed as well as

reasonable; we assume that he or she is familiar with the

history of the government practice at issue, as well as with

the general contours of the Free Speech Clause and the

public forum doctrine. .. . Our observer realizes that [the

public fora at issue] host an eclectic range of uses

throughout the year."

Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383, 1391 n.11

(11th Cir. 1993) (en banc) (quoting Kreisner v. City of San Diego,

988 F.2d 883, 892 (9th Cir. 1993)). A reasonable observer viewing

a private, religious, unattended display in a public forum would not

perceive such display as an “endorsement” or "disapproval" of their

individual religious choices. See Allegheny, 492 U.S. at 620:

Witters, 474 U.S. at 493 (O’Connor J., concurring in part and

concurring in judgement). For purposes of the Establishment

Clause, allowing the Klan’s religious display conveys a message of

openness and plurality to all observers.’ See Allegheney, 492 U.S.

at 620; Witters, 474 U.S. at 493 (O’Connor J., concurring in part

and concurring in judgement).

Furthermore, this Court stated that the primary effect of an

open forum does not advance religion because “an open forum in a

public university does not confer any imprimatur of state approval

on religious sects and practices." Widmar, 454 U.S. at 274. Private

religious speech in a traditional public forum cannot violate the

Establishment Clause because it does not even implicate the Clause.

See Widmar, 454 U.S. at 273-74; see also McDaniel, 435 U.S. at

640 (Brennan, J.. concurring). If anything, an open forum policy

prevents violations of the Establishment Clause by insulating the

government from the necessity of scrutinizing the content of the

citizenry’s speech. See Widmar, 454 U.S. at 277-78; Chabad-

Lubavitch of Georgia, 5 F.3d at 1391. Petitioners do not have a

compelling state interest. As such, Petitioners’ content-based

discrimination against the Klan’s cross is a violation of the Free

Speech Clause.

B. Selective Exclusion Of A Privately Sponsored

Cross In A Traditional Public Forum Is An

Unconstitutional Content And Viewpoint-Based

Restriction.

1. Allowing secular speech but prohibiting

religious speech is a content-based restriction.

In R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992), this

” Lower courts have cautioned against the “Ignoramus’s Veto.” “The

Ignoramus’s Veto lies in the hands of those determined to see an

endorsement of religion, even though a reasonable person, and any

minimally informed person, knows that no endorsement is intended, or

conveyed, by adherence to the traditional public forum doctrine.”

Americans United for Separation of Church and State v. City of Grand

Rapids, 980 F.2d 1538, 1553 (6th Cir.1992) (en banc); see also Chabad-

Lubavitch of Georgia, 5 F.3d at 1391 n.11.

Court noted that "[t}he First Amendment generally prevents

government from proscribing speech, or even expressive conduct

because of disapproval of the ideas expressed. Content-based

regulations are presumptively invalid.” /d. at 2542. “The First

Amendment does not permit [government] to impose special

prohibitions on those speakers who express views on disfavored

subjects." /d. at 2547.

"If there is a bedrock principle underlying the First

Amendment, it is that Government may not prohibit the expression

of an idea simply because society finds the idea itself offensive or

disagreeable." Simon & Schuster, 112 S. Ct. at 509; see also

Cohen v. California, 403 U.S. 15 (1971).*" — Selective exclusion

from a public forum may not be based on content alone, and may

not be justified by reference to content alone. See Carey v. Brown,

447 U.S. 455, 462-463; Police Dept. of the City of Chicago v.

Mosley, 408 U.S. 92, 96 (1972); Texas v. Johnson, 491 U.S. 397,

414 (1989). “Regulations which permit the government to

discriminate on the basis of the content of the message cannot be

tolerated under the First Amendment." Simon & Schuster, 112

S. Ct. at 508. Content-based regulations of speech constitute

"censorship in a most odious form" and violates the First

Amendment. Cox v. Louisiana, 379 U.S. 536, 581 (1965) (Black,

J. concurring). Education is the proper and preferable alternative

* Cohen involved the wearing of a shirt in a public forum with the

words "Fuck the Draft." In overturning a criminal conviction based upon

a breach of the peace for the wearing of the shirt, this Court noted that the

State acted as it did in order to protect the sensitive from otherwise

unavoidable exposure to a crude form of protest. “Of course, the mere

presumed presence of unwitting listeners or viewers does not serve

automatically to justify curtailing all speech capable of giving offense.

While this Court has recognized that government may properly act in many

Situations to prohibit intrusion into the privacy of the home of unwelcome

views and ideas which cannot be totally banned from the public dialogue,

we have at the same time consistently stressed that we are often captives

outside the sanctuary of the home and subject to objectionable speech."

Cohen, 403 U.S. at 21.

to censorship. Whitney v. California, 274 U.S. 357 (1927).

But, above all else, the First Amendment means that the

government has no power to restrict expression because of

its message, its ideas, its subject matter or its content. The

essence of this forbidden censorship is content control. Any

restriction On expressive activity because of its content

would compietely undercut the “profound _ national

commitment to the principles that debate on public issues

should be uninhibited, robust and wide open.”

Mosley, 408 U.S. at 95-96 (citations omitted).”

Petitioners agree that Capitol Square is a public forum.

P.C. 3, 18; P.R.B. 1, 2. As such, speech within Capitol Square

must be afforded the protections of the First Amendment.

Nonetheless, Petitioners wish to differentiate displays from the

speeches and gatherings the State has traditionally allowed at this

public forum. P.C. 5, 10, 11, 15, 16, 21; P.R.B. 3. Nowhere do

Petitioners’ argue that religious speech in the form of religious

worship, celebrations, speeches, or ceremonies must be excluded

from Capitol Square. In fact, Petitioners have allowed such an

exercise of religious speech by the Lubavitch sect in celebration of

Hanukkah in Capitol Square during previous years. R.B. Al4. On

those occasions the State did not claim that there had been a

violation of the Establishment Clause by allowing an unattended

Menorah (P.C. 5, 14, Al6, A30; P.R.B. 3, 6.) or the religious

celebration of Hanukkah on Capitol Square even though the

Governor dedicated the Menorah in 1993 in an open ceremony.

R.B. A23. Nonetheless, Petitioners make the fictitious

differentiation among displays and religious worship or celebration.

* “Regulations which permit the government to discriminate on the

basis of the content of the message cannot be tolerated under the First

Amendment.” Simon & Schuster, 112 S. Ct. at 508.

en RR

P.C. 5, 14, Al6, A30; P.R.B. 3, 6."

Display of the Klan’s cross and its disclaimer constitute

religious/political speech protected under the First Amendment.

Assuming, arguendo, that Respondents’ display is somehow

different from religious worship or celebration it does not follow

that the cross deserves less protection. Though the government

generally has a freer hand in restricting expressive conduct, it may

not proscribe particular conduct because it has expressive elements.

See, e.g., Johnson, 491 U.S. at 406; United S.ates v. O’Brien, 391

U.S. 367, 376-377 (1968). This Court has acknowledged that

conduct may be "sufficiently imbued with elements of

communication to fall within the scope of the First and Fourteenth

Amendment." Spence v. Washington, 418 U.S. 405, 409 (1974).

Conduct is protected under the First Amendment if it conveys a

particularized message. See id.; Tinker v. Des Moines Independent

Community School District, 393 U.S. 503, 505 (1969) (Court

recognized the expressive nature of students wearing black arm

bands to protest American military involvement in Viet Nam):

Brown v. Louisiana, 383 U.S. 131, 141-142 (1966) (Court

recognized expressive conduct of a sit-in by blacks in a "white only"

section to protest segregation).

Like the flag in Texas v. Johnson, the cross is a form of

utterance. See Johnson, 491 U.S. at 405. "Symbolism is a

primitive but effective way of communicating ideas. The use of an

emblem or flag to symbolize some system, idea, institution, or

personality, is a short cut from mind to mind. Causes and nations,

political parties, lodges and ecclesiastical groups seek to knit the

loyalty of their followings to a flag or banner, a color or design."

West Virginia Board of Education v. Barnette, 319 U.S. 624, 632

(1943) (Forced salute of the flag was forced expression). The cross

'° Petitioners state “[t]hat distinction, though perhaps obvious enough

in the context of particular visible speakers, lacks the same clarity when

one considers an unattended display that does not itself articulate the nature

of its connection to the government except by its contents and its location,

especially when it is located at the very seat of government.” P.B. 16.

in this case is pregnant with expressive content. The cross not only

embodies significance to religious belief but it also embodies a

political message due to the accompanying sign which read (1)

"cross was erected by private individuals,” (2) "without government

support,” (3) "for the purpose of expressing respect for the holiday

season,” (4) “to assert the right of all religious views to be

expressed on an equal basis un public property." P.C. Al5; P.R.B.

5; R.B. 8, Al5, Al6. Therefore, the expressive and overtly

political and religious nature of this display was both intentional and

overwhelmingly apparent. See Spence, 418 U.S. at 409; Tinker,

393 U.S. at 505; Brown, 383 U.S. at 141-142.

A ban on religious expression in a public forum, even if

limited to a ban on expression through signs and symbols, would

lead to impossible difficulties as indicated by various lower court

decisions. See, e.g., Americans United for Separation of Church

and State, 980 F.2d at 1552. Such a ban would have to extend to

anti-religious expression as well.'' See id. at 1552-1553; see also

Wallace v. Jaffree, 472 U.S. 38, 52-54 (1985). Petitioners cite

Gonzales v. North Township, for the proposition that the cross "does

not bear secular trappings sufficient to neutralize its religious

message." P.B 22 (quoting Gonzales, 4 F.3d 1412 (7th Cir. 1993)

(Crucifix had been donated to the city, and thus had become city

property)). Petitioners fail to recognize that private religious speech

in a traditional public forum cannot violate the Establishment Clause

because it does not even implicate the Clause. See Widmar, 454

U.S. at 271-72.

'' For example, under Petitioners’ arguments, a cross, and specifically

a Latin cross by itself, could be banned, but a cross with a Red Ribbon,

which is the symbol of AIDS awareness, may not be banned. Also, as

stated in Americans United for Separation of Church and State, "a banner

reading ‘Cure AIDS, smash the Catholic Church’ would be banned, while

one reading ‘Cure AIDS, support research’ could not be banned.” 980

F.2d at 1552-1553. The Klan’s cross would be banned, but a burning

cross would not be banned because of its overtly political message similar

to burning the flag in Texas v. Johnson, 491 U.S. at 406.

Petitioners’ proposition, if nothing else, demonstrates that

the state’s action was content-based. The State would prohibit

religious symbolic speech because it cannot "neutralize its religious

message." P.C. 22 (emphasis added). The State desires to prohibit

only one class of speech -- religious speech. P.C. 22; see also,

P.C. 3, 5 nl, 6, 9, 14, 16, 17, A30. Petitioners’ argument

requires “sanitation” of religious speech, which is an euphemism for

censorship. P.C. 22. The Establishment Clause cannot place such

a heavy burden on free speech.

2. Allowing one brand of religious speech but

prohibiting another brand of religious speech is

a viewpoint-based restriction.

"{T]he government violates the First Amendment when it

denies access to a speaker solely to suppress the point of view he

espouses on an otherwise includable subject." Cornelius v. NAACP

Legal Defense and Ed. Fund, Inc. , 473 U.S. 788, 806 (1985). The

principle that has emerged from this Court’s decisions is "that the

First Amendment forbids the government to regulate speech in ways

that favor some viewpoints or ideas at the expense of others." City

Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804

(1984) (emphasis added); Lamb’s Chapel v. Center Moriches School

Dist., 113 S. Ct. 2141, 2147-2148 (1993) (Permitting discussions

on family issues, but prohibiting religious discussions of family

issues 1S viewpoint restriction). Like Lamb’s Chapel, the State

engaged in view point discrimination when it allowed Capitol

Square to be used as a public forum for the presentation of all views

about politics and religion except the Klan’s views. See P.C. 4, 5,

14, A2, Al4, A30; see also, Lamb’s Chapel, 113 S. Ct. at 2147-

2148.

The State engaged in viewpoint discrimination when it

allowed the religious speech of a minority religious group, the

Lubavitch sect, but excluded the religious/political speech of the

Klan. P.C. 14, A30; P.R.B. 10; R.B. 4, 8. The State contends that

the Klan’s cross would give the impression of government

sponsorship. P.C. 14, 19, 24; P.R.B. 10, 8. The cross had a

disclaimer (P.C. A15; P.R.B. 5; R.B. Al5, A16), and was never

alone in Capitol Square (P.C. 5, A15, A30, A31; R.B. 5, 15, A23,

A24, A25, A31, A32). The State made a point in disclaiming its

support of the cross (R.B. Al2, Al4, A1I5), and had previously

condemned the Klan’s cross. R.B. Al2, Al4, Al5. At the same

time, the State allowed an unattended Menorah without a disclaimer

(P.C. A30; R.B. A23) which Menorah had been dedicated by the

Governor in 1993 as part of a Hanukkah celebration. R.B. 15,

A23. These facts indicate that the motive behind the State’s ban of

the cross was to exclude the religious/political and highly

controversial views of the Klan. R.B. All (Senator Finan on a

broadcast by Ohio Public Radio stated that "[wJe would love to have

a basis for denying the Klan the right to come here"), Al7. The

State was aware of the Klan’s previous attempts in Cincinnati to

erect a cross after a menorah had been displayed. R.B. 5, Al2,

Al3, Al7, A22."* In fact, a closer look into the original banning

of all seasonal displays reveals the State’s intent was to prevent the

Klan from erecting the cross. R.B. 5, Al2, Al3, Al7, A22."

After the public's disapproval of the total ban of seasonal displays,

the State gave in and allowed those displays which had popular

approval. R.B. 5, Al4, A20.

Petitioners contend that Respondents’ openly acknowledged

purpose -- to erect “a symbol for our Lord, Jesus Christ” in

furtherance of their more general purpose to “establish a Christian

'* "Senator Finan said he wanted to avoid having Columbus go through

what Cincinnati went through last year and may go through again this year.

Last holiday season, after a tree and menorah were put up in a public

square in the queen city, the Klan went to court for a ruling to allow them

to erect a 15-foot tall cross . . . Senator Finan stated this year no holiday

symbols will be allowed at the Statehouse, and, that way, the Klan won't

get its symbol in the door either.” R.B. Al2 (emphasis added).

'* State Senator Richard Finan stated: “We could keep the Ku Klux

Klan off the Statehouse grounds, all we have to do is bar everybody else.

We are not prepared to do that. It’s a little easier to bar a holiday tree

than it 1s to bar everybody from the Statehouse.” R.B. A13.

government in America" -- is somehow evidence of why the Klan’s

display must not be allowed. P.C. 4; P.R.B. 5. If anything, the

State’s hostility toward the Klan’s purpose demonstrates that the

prohibition of the Klan’s brand of religious/political speech was a

viewpoint-based restriction. The State’s actions are a paramount

example of unconstitutional restrictions on speech and expressive

conduct because of disapproval of the ideas expressed. See Lamb’s

Chapel, 113 S. Ct. at 2147-2148; Taxpayers for Vincent, 466 U.S.

at 804.

II.

SELECTIVE EXCLUSION OF RELIGIOUS SPEECH

FROM <A_ TRADITIONAL PUBLIC FORUM

VIOLATES THE ESTABLISHMENT CLAUSE.

A. Allowing The Private Display Of A Jewish

Menorah While Flatly Banning The Private

Display Of A Klan Cross Violates The

Establishment Clause.

Through an extensive line of cases, this Court has

interpreted the Establishment Clause to mean that "government may

not promote or affiliate itself with any religious doctrine or

organization.” Edwards v. Aguillard, 482 U.S. 578 (1987) (Public

school’s curriculum may not be based on a desire to promote

religious beliefs); Stone v. Graham, 449 U.S. 39 (1980): Abington

School District v. Schempp, 374 U.S. 203 (1963): see also Engel v.

Vitale, 370 U.S. 421; 82 S. Ct. 1261 (1962). The government may

not discriminate among persons on the basis of their religious beliefs

and practices. Torcaso v. Watkins, 367 U.S. 488 (1961) (Statute

that conditions the holding of public office on a belief in the

existence of God is unconstitutional); Estate of Thornton v. Caldor,

Inc., 472 U.S. 703, 709-710, and n.9 (1985) (Statute granting an

employee a right not to work on his Sabbath unconstitutional):

Larson v. Valente, 456 U.S. 228 (1982) (Statute that imposed

registration and reporting requirements upon only those religious

Organizations that solicit more than 50% of their funds from

nonmembers is unconstitutional). Moreover, the government may

not delegate governmental power to a religious institution, and may

not involve itself too deeply in such an institution’s affairs. See,

e.2., Board of Education of Kirvas Joel v. Grumet, 114 S. Ct.

2481, 2488, 2494 (1994); Aguilar v. Felton, 473 U.S. 402, 409

(1985); Wolman v. Walter, 433 U.S. 229, 254 (1977); Meek v.

Pittenger, 421 U.S. 349, 370 (1975); Lemon v. Kurtzman, 403 U.S.

602, 619-622 (1971).

Government cannot pick and choose among religious beliefs.

Preference for particular religious beliefs constitutes an endorsement

of religion, and thus a violation of the Establishment Clause. See

County of Allegheny v. American Civil Liberties Union, 492 U.S.

573, 593 (1989); Edwards, 482 U.S. at 593; Corporation of

Presiding Bishop of Church of Jesus Christ of Latter-day Saints v.

Amos, 483 U.S. 327, 334 (1987). "The fullest realization of true

religious liberty requires that government . . . effect no favoritism

among sects or between religion and nonreligion.” Abington School

District, 374 U.S. at 305 (Goldberg, J., concurring).

Here, like Kirvas Joel, 114S. Ct. at 2492, the benefits flow

to one single sect, Lubavitch. See R.B. 4. Aijding this "single,

small religious group causes no less constitutional problem than

would follow from aiding a sect with more members or religion as

a whole." Kiryas Joel, 114 S. Ct. at 2492; see Larson, 456 U.S.

at 244-246. The State’s ban of the Klan’s cross because it is “a

strictly religious, indeed sectarian, symbol,” (P.C. 3, 5 n.1, 6, 9,

16, 17) but allowing a Jewish Menorah with no disclaimer, by the

Lubavitch sect, gives preferential treatment to one religion over

another in violation of the Establishment Clause. See County of

Allegheny, 109 S. Ct. at 3101; Edwards, 482 U.S. at 593. The

State’s actions give the improper appearance of endorsement to the

Jewish Faith and nonendorsement, even hostility, toward Klan

Christianity. See Lynch v. Donnelly, 465 U.S. 668, 688 (1984)

(O’Connor, J., concurring); Lemon, 403 U.S. at 612. The State's

ban on the Klan’s cross conveys a message to Klan Christians that

they are not full members of the political community; that they can

display their crosses in their property and inside their temples, but

Tete ninneemnnemnneeniidieiaenenmneicnaiitiateaiiniaiiel

not in a public forum like other sects do. Petitioners’

accommodation to the Lubavitch sect singles out a particular

religious sect for special treatment. However, "whatever the limits

of permissible legislative accommodations may be, . . . it is clear

that neutrality as among religions must be honored." Kiryas Joel,

114 S. Ct. at 2493 (citations ommitted); Larson, 456 U.S. at 244-

246. The State’s actions send the message that anyone will be

allowed to erect displays in Capitol Square, except Klan Christians

trying to display “religious symbols."

B. Allowing Secular Speech In A Traditional Public

Forum While Selectively Excluding Religious

Speech Violates The Establishment Clause.

‘If there is any fixed star in our constitutional constellation,

it is that no official, high or petty, can prescribe what shall be

orthodox in politics, nationalism, religion, or other matters of

opinion or for citizens who confess by word or act or faith herein.”

West Virginia Board of Education v. Barnette, 319 U.S. 624. 642

(1943) (emphasis added). "The Establishment Clause. properly

understood, is a shield against any attempt by the government to

inhibit religion" as it has done here by allowing secular but not

religious speech. P.C. 3, 4, 5, 18, Al6, A30; see McDaniel, 435

at 641 (Brennan, J., concurring); Abington School Dist., 74 U.S. at

222. The Establishment Clause may not be used as a sword to

justify repression of religion or its adherents from any aspect of

public life, including the free exercise of their religious belief in

public. See McDaniel, 435 U.S. at 641 (Brennan, J.. concurring).

This Court in Lemon v. Kurtzman prescribed the following

three-prong test in determining whether a policy violates the

Establishment Clause: (1) it must have a secular purpose; (2) its

principal or primary effect would be neither to advance nor inhibit

religion; and (3) it must not foster excessive governmental

entanglement with religion. 403 U.S. at 612-613; see also Widmar.

454 U.S. at 271. In Widmar this Court found that an “equal

access" policy meets the first and third parts of the test, and that any

advancement of religion would not be the forum’s "primary effect"

under the second prong. 454 U.S. at 271-275. Private religious

speech in a traditional public forum does not implicate the

Establishment Clause. See id. To exclude religious speech from a

public forum offends the Lemon test. See Widmar, 454 U.S. at

271.

This Court has never before held that "the Government may

ensure that a symbol be used to express only one view of that

symbol or its referents." Texas v. Johnson, 491 U.S. at 417

Indeed, in Schacht v. United States, this Court invalidated a federal

Statute that permitted a member of one of the armed forces to wear

the uniform of that armed force so long as the portrayal does not

discredit that armed force. 398 U.S. 60, 65 (1970). Like the

government in Schacht, Capitol Square cannot adopt a "preference

for the dissemination of religious ideas." Texas Monthly, Inc. v.

Bullock, 489 U.S. 1, 17 (1989).'* The same analysis applies to the

cross. Courts cannot engage in speculation as to when a cross

exclusively embodies a religious message, especially when the

speech is private speech. This case, like Widmar, demonstrates the

need for the courts and the State not to enforce laws or decisions

which purpose is to exclude “religious worship" and “religious

speech.” In order to implement such exclusion the courts would

have to engage in minuscule analysis as to the trendiness and

meaning of symbols used by various religious or nonreligious

organizations, thus risking greater “entanglement.” See Widmar,

454 U.S. at 277-78. Like the University in Widmar, courts would

first need to determine which words, symbols and activities fall

within religious speech or worship. This in fact will prove to be

"an impossible task in an age where many and various beliefs meet

the constitutional definition of religion.” Widmar, 454 U.S. at 275

n.11; (quoting O’Hair v. Andrus, 613 F.2d 931, 936 (D.C. Cir.

1979)).

"A statutory preference for the dissemination of religious ideas

offends our most basic understanding of what the Establishment Clause 1s

all about and hence is constitutionally intolerable.” Texas Monthly, 489

U.S. at 28. (Blackmum, J., concurring).

The cross embodies religious, political and cultural

significance. R.B. 8; see also Appendix A. For example, the cross

was once a mechanism to punish crime in the form of a death

sentence.'” If individuals today decided to wear an electric chair

around their neck instead of a cross because their sectarian leader

was sentenced to death, would that then make the electric chair a

religious symbol? Petitioners claim that the Latin cross is known as

a predominantly religious symbol. P.C. 3, 5n.1, 6, 9, 16, 17. If

the test is whether a symbol is known for being predominantly

religious, the religions which are popular and well known and use

the Latin cross as their symbol would suffer discrimination as

opposed to those which use the Greek cross'® or the swastika,

which are not well known for their religious significance. See

Appendix Al3, Al4, Al6.

Moreover, the problem with isolating symbols and

conveying on them a particularized message is that the message

changes according to the beholder. Most individuals would not be

able to distinguish among the four hundred forms of the cross.

* The earliest mode of crucifixion seems to have been by impalation,

the transfixion of the body lengthwise and crosswise by sharpened stakes,

a mode of punishment still well known among the Mongol race. “The

usual mode of crucifixion was familiar to the Greeks, the Romans, the

Egyptians, Persians and Babylonians... . Alexander the Great executed

two thousand Tyrian captives in this way, after the fall of the city.”

Aaron-Golan, The Illustrated Bible Dictionary 342-344 (1981) (hereinafter

“Illustrated Bible Dictionary"). “Crucifixion was practiced by the

Phoenicians and Carthaginians and later used extensively by the Romans.

Only slaves, provincials and the lowest types of criminals were crucified,

but rarely Roman citizens." The International Standard Encyclopedia 76}

(1939).

The Greek Cross has four arms of equal length. The Red Cross

organization makes abundant use of this form of the cross which has been

used for centuries in Christian art. “When five Greek crosses appear on

the top of an altar, under the fair linen, reference is made to the five

wounds of our Lord's crucifixion." Friedrich Rest, Our Christian Symbols

19 (1954); see Appendix Al6.

F.R. Webber, Church Symbolism 99-132 (1971). Most viewers

would not know that only fifty of those four hundred variations have

been used in Christian symbolism. /d. In fact, most people would

not be able to distinguish a Latin Cross'’ from a Passion Cross,"

or a Cruz Ansata.'” /d. In fact, many viewers may not recognize

a cross if they saw it.’ or know whether it is a Christian or non-

Christian symboi?*'! To label the cross as an exclusive Christian

symbol fails to take into account the non-Christian usage of the

cross and the definition of the cross. The cross is a sign formed by

'’ "This form of the cross is appropriate the world over, and may be

used by any religious body whose doctrines include the confession of the

Lord Jesus Christ and His atoning death.” Church Symbolism at 99-132:

Appendix Al.

"This 1s a cross whose ends are cut to points. It is also known as

the Cross Urdee, and the Cross Champain, sometimes as the Cross

Pointed. It represents the sufferings of our Lord, and has been called by

some authorities the Cross of Suffering.” Church Symbolism 109;

Appendix A2.

* "A cross, supposedly of ancient Egyptian origin. It may be either

a Tau cross with a loop above it, or a Latin cross similarly looped. A

symbol of life." Church Symbolism 111; Appendix A2.

There are about four hundred forms of the cross. Some include the

Anchored Cross. This type of cross originated in primitive days in the

catacombs, formed by combining an anchor and a cross. This is a symbol

of Christian hope. It is also an heraldic cross whose ends are curved

outward like the flukes of an anchor. This type of cross resembles more

an anchor than a Latin cross; nonetheless, it is sll a cross pregnant with

religious symbolism. See Church Symbolism 99, 110-111; Appendix AS,

A8.

*' The Crux Ansata is also what is known as an Ankh. The origins of

this cross precede the crucifixion of Christ. It is customarily placed in a

god's or goddess’s hand, and is found in temples, tombs, and in old

Egyptian inscriptions. See Adams, The Encyclopedia of Religion 155

(1987) (hereinafter "The Encyclopedia of Religion"); Appendix A5, A8.

the meeting of two lines in the center with four directions apart.

“The cruciform sign is used in artistic and scientific expression --

in mathematics, architecture, geography and cosmology. It also

occupies an important position in culture in a more general sense

and, specially, in religion." The Encyclopedia of Religion 155-165.

"The sign of the cross was well known in the symbolics of various

ancient nations. It represents a combination of opposites. The

positive (or vertical) with the negative (or horizontal), life with

death, the spiritual (vertical) with the worldly (horizontal)."

Gertrude Grace Sill, A Handbook of Symbols and Christian Art 30-

33 (1975) (hereinafter "Handbook of Symbols").

For example, among the Egyptians the cross is said to have

been a symbol of divinity and eternal life, and to have been found

in the temple of Serapis. The Encyclopedia of Religion 155-165.

Another example is the gammadion. The gammadion is a Greek

cross with its ends bent at right angles; four gammas attached to a

common base, all pointing either clockwise, to the right, or

counterclockwise, to the left. In India it is an ancient solar symbol

and is the emblem of the god, Visnu, representing the cosmic wheel

spinning on an axis. /d. The cross has also been found in the

ancient civilizations of Peru. These civilizations have left valuable

information on the role of the cross in solar cults. /d. "At the time

of the conquest of Mexico, the Spaniards discovered many

figurations of the cross in temples and manuscripts. For the ancient

Mexicans, the world was built on the cross -- the crossroads joining

east to west and south to north. Thus, the cross becomes a symbol

of world unity." /d.

The meaning of the cross and the symbolism it embodies

changes according to the observer. For example, among the occult

and witchcraft, crosses are seen as the “oldest AMULETS in the

world, predating Christianity by many centuries." Rosemary Ellen

Guiley, The Encyclopedia of Witches and Witchcraft 74-75 (1989).

In the commonest form of a cross, all four arms are

of equal length rather than a T shape. Crosses have

been associated with some deities and heavens, and

in ancient times they may have represented divine

protection and prosperity. . Even before the

crucifixion of Christ, the cross was a weapon

against the dark forces. According to legend, when

Lucifer declared war upon God in an attempt to

assert his power, his armies scattered God's angels

twice. God sent to His angels a Cross of Light on

which were inscribed the names of the Trinity

Upon seeing this cross, Lucifer’s forces lost strength

and were driven into hell

Using Petitioners’ reasoning, the meaning of symbolism

depends on who wishes to erect a display. See P.C. 16, 17. Ifa

group of fans of the pop singer Madonna wished to erect a cross in

Capitol Square in order to celebrate her concert in the area, would

that cross be a religious or a secular symbol?’ Would the

symbolism depend on history and trends? Some courts have upheld

the phrase "In God We Trust” on the basis that it has lost its secular

meaning, and has become a type of civil religion. Abington School

Dist., 374 U.S. at 303 (Brennan, J., concurring) (quoting McGowan

As evidenced by magazines and newspapers, Madonna has

influenced not only the music industry, but our culture. In an article from

Tikkun dated September, 1994, the writer explains how Madonna managed

to turn the cross into a symbol of sexy rebelliousness and suburban chic

As a result of Madonna's "like a virgin” phase, millions

of American girls began to buy and wear large crosses as

part of a wannabe ensemble. Stores specializing in punk

gear started selling vast numbers of large crosses on

chains. The cross may still be a powerful symbol of

religious belief--as well as a sometimes signifier of

oppression--but its categorical authority as a sign of

holiness has been challenged by the irreligious,

irresponsible force of the mass market. Smith, Buying

Power: Thoughts on the “Crisis” of Commodification.

Tikkun 63 (Sept. 1994).

v. Maryland, 366 U.S. 420, 442 (1961)); ACLU v. St. Charles, 794

F.2d 271 (7th Cir. 1986) ("In God We Trust" and Christmas trees

are secular and have lost their original religious meaning).

Constitutional law should be based on neutral principles and not on

the tides of history, fashion, or theological precepts. The

Establishment Clause should not be based upon non-neutral

principles changing with time in accordance with popular

perception. Using the theory that "In God We Trust" is now

constitutional because it has lost its religious meaning means that the

same phrase would have at one time been unconstitutional, but is

now constitutional. It is intellectually dishonest to state that "In

God We Trust" is constitutional because it has lost its religious

significance. If we move the words around a little bit and stated

“We Trust In God," would that then be unconstitutional if placed

above the courthouse steps? Accordingly, if the cross becomes. as

it has, a secular icon used by rock stars and fashion designers

alike,“’ would that then render the cross a civil religion enabling

the government to make use of it? This Court stated that "[t}he

suggestion that government may establish an official or civic

religion as a means of avoiding the establishment of a religion with

' “Along with this blast from the past comes an interesting trend

toward religion as fashion. Crucifixes, crosses, ankhs and other icons have

become an irreverent fashion. . And let's not forget the fashion

influence of rock star Madonna whose recent videos have boosted sales of

rosary bead necklaces, faux gem-encrusted crosses and ideological

pendants. . . . New Age or Old Testament, Religion Has Become a

Fashion Accessory.” Edelstein, “Fashion Look of the ‘90s: Simple

Comfortable," Jewelers Circular Keystone 128 (August 1989) (hereinafter

“Fashion Look of the ‘90s"). "Sacred imagery is pervading the runways.

Does this mean we're losing our religion or desperately trying to find it?

Ann Demeulemeestei's fall collection was heaven. Literally. Everything

came up rosaries and crosses, and high, detachable collars." Szabo.

"Fashion's New Crusade: Sacred Images in Fashion,” Harper's Bazaar 99

(September 1993). "The cross is the jewelry accessory of choice, strung

six across (Donna Karan), draped front and back (Richard Tyler) or worn

as a simple necklace (Louis Dell’Olio for Anne Klein)." Schupak, “Fall

Fashion Forecast: What's Old is Very New,” 164 Jewelers Circular

Keystone 88 (August 1993)

more specific creeds strikes us as a contradiction that cannot be

accepted.” Lee v. Weisman, 112 S. Ct. 2649, 2657 (1992).

Under Petitioners’ theory, the State is forced to determine

whether (1) the symbol is religious, and if so, (2) has the symbol

become secularized to the point of acceptability. Individuals

wishing to use symbols of anti-religious significance would also be

banned, creating the same entanglement this Court warned against

in Widmar. 454 U.S. at 277-278; see also Kiryas Joel, 114 S. Ct.

248, 2491 (1994): Wallace v. Jaffree, 472 U.S. 38, 52-54 (1985).

In Kiryas Joel, this Court stated that an important principle of the

Establishment Clause is "that government should not prefer one

religion to another, or religion to irreligion.” See Kiryas Joel, 114

S. Ct. at 2491.°* A banner representing an atheist organization

would also be excluded. In Widmar, this Court warned that to draw

distinctions between what religious worship is or is not would

require the University -- and the courts -- to inquire into the

significance of words and practices to different religious faiths, and

in various circumstances by the same faith. 454 U.S. at 269-70.~

** The State’s actions have the primary effect of inhibiting religion

because they selectively excluded religious speech. Petitioner's arguments

would allow a swastika to be displayed even though the swastika embodies

religious significance. See Appendix Al3-14. Christians, unlike any other

religious group, would have to resort to the same tactics early Christians

engaged in desguising their crosses. For example, they would have to

display an Anchored Cross (see Appendix AS, A8) which is sometimes

called a Crux Dissimulata. These crosses, like the fish symbol, (see

Appendix Al7, Al9) were intended to conceal their true significance from

spies and informers who persecuted the early Christians. See Stafford,

Christian Symbolism 68 (1942).

*> The dissent in Widmar argued that "religious worship" was not

speech generally protected by the “free speech" guarantee of the First

Amendment and "equal protection” clause of the Fourteenth Amendment.

The dissent argued that if "religious worship" was protected speech, then

the Establishment Clause would be emptied of its meaning. The Court in

Widmar responded: “Merely to draw the distinction would require the

university -- and ultimately the courts -- to inquire into the significance of

Such inquiries entangle the State with religion in a forbidden manner

and will have the primary effect of inhibiting religion. See, e.g.,

Walz v. Tax Comm'n. of New York City, 397 U.S. 664, 668 (1970);

see also Widmar, 454 U.S. at 269-70 n.6.

To adopt Petitioners’ arguments would offend the principles

embodied in the Establishment Clause. See Lemon, 403 U.S. at 612-

613; Widmar, 454 U.S. at 271; P.C. 3, 16, 18. 24. First,

Petitioners fail to provide a secular legislative purpose compatible

with the First Amendment. See Lemon, 403 U.S. at 612-613:

Widmar, 454 U.S. at 271. Second, Petitioners’ arguments, if

followed, would have the primary effect of inhibiting religion.

Finally, Petitioners’ arguments would foster "an excessive

government entanglement with religion." The best way to resolve

the issue before this Court is to adopt the reasoning of the lower

court: In an open forum religious expression does not implicate the

Establishment Clause.

III.

TARGETING THE KLAN CROSS FOR SELECTIVE

EXCLUSION FROM A _ TRADITIONAL PUBLIC

FORUM VIOLATES THE FREE EXERCISE CLAUSE.

The free exercise of religion means, first and foremost, the

right to believe and profess whatever religious doctrine one desires.

Employment Division, Dept. of Human Res. v. Smith, 494 U.S. 872.

878 (1990).-° “The First Amendment Religion Clauses mean that

words and practices to different religious faiths, and in varying

circumstances by the same faith. Such inquiries would tend inevitably to

entangle the State with religion in a manner forbidden by our cases." 454

U.S. at 269-70.

°° The government may not compel religious belief; see Torcaso v.

Watkins, 367 U.S. 488 (1961), punish the expression of religious doctrines

believed to be false; United States v. Ballard, 322 U.S. 78. 86-88 (1944),

impose special disabilities on the basis of religious views or religious

religious beliefs and religious expression are too precious to be

either proscribed or prescribed by the state. The design of the

Constitution is that preservation and transmission of religious beliefs

and worship is a responsibility and choice committed to the private

sphere, which itself is promised freedom to pursue that mission. It

must not be forgotten then, while concern must be given to define \

the protection granted to an objector or a dissenting nonbeliever,

these same Clauses exist to protect religion from government

interference.” Lee v. Weisman, 112 8. Ct. 2649, 2656-2657 (1992).

“At a minimum, the protections of the Free Exercise Clause pertain

if the law at issue discriminates against some or all religious belief

or regulates or prohibits conduct because it is undertaken for

religious reasons." Church of the Lukumi Babalu Aye v. City of

Hialeah, 113 S. Ct. 2217, 2226 (1993) (emphasis added).*” "The

Free Exercise Clause protects against governmental hostility which

is masked as well as overt." /d. at 2227. This Court must survey

the circumstances of governmental categories to eliminate, as it

were, religious gerrymanders. /d. at 2227; see also, Walz v. Tax

Comm'n of New York City, 397 U.S. 664, 696 (1970) (Harlan, J.,

concurring). Governmental actions that substantially burden a

religious practice must be justified by a compelling governmental

interest. See Sherbert v. Verner, 374 U.S. 398 (1963); Religious

Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (hereinafter

"RFRA").

There are, of course, many ways of demonstrating that the

object or purpose of the law is the suppression of religious conduct.

One must begin by examining the text of the law. Church of the

Lukumi, 113 S. Ct. at 2227. However, the record of the case must

also be examined to disclose masked governmental hostility. See id. |

status: see McDaniel v. Paty, 435 U.S. 618 (1978), or lend its power to

one or the other side !n controversies over religious authority or dogma;

see Presbyterian Church in U.S. v. Mary Elizabeth Bluehull Memorial

Presbyterian Church, 398 U.S. 440, 445-452 (1969).

” See., e.g., Brounfeld v. Brown, 366 U.S. 599, 607 (1961); Fowler

v. Rhode Island, 345 U.S. 67, 68-70 (1953).

Like Church of the Lukumi, the facts of this case disclose an object

remote from legitimate concerns. /d. at 2227-2228: see also R.B.

Al4, Al7, A20, A22.

The display of the cross is for the Klan a sincerely-held

religious (and political) belief. "What principle of lower logic can

be brought to bear to contradict a believer’s assertion that a

particular act is central to his personal faith? Judying the centrality

of different religious practices is akin to the unacceptable ‘business

of evaluating the relative merits of different religions’ claims.’"

Smith, 494 U.S. at 887 (quoting United States v. Lee, 455 U-S.

252, 263 (1982) (Stevens, J.. concurring)). "It is not within the

judicial ken to question the centrality of particular beliefs or

practices to a faith or the validity of particular litigants

interpretations of those creeds." Hernandez v. C.1.R., 490 U.S.

680, 699 (1989). Courts must not presume to determine the places

or particular belief in a religion or the possibility of a religious

claim. See, e.g., Thomas v. Review Bd. of Indiana Employment

Security Div., 450 U.S. 707, 716 (1981); Presbyterian Church, 393

U.S. at 450; Jones v. Wolf, 443 U.S. 595, 602-606 (1979): United

States v. Ballard, 322 U.S. 78, 85-87 (1944).

The Klan’s purpose in placing a cross with the display was

to erect “a symbol for our Lord, Jesus Christ" in furtherance of

their more general purpose to “establish a Christian government in

America.” P.C. 4. The record indicates that the State’s purpose in

its first ban on all seasonal displays was to exclude the Klan, and

the Klan alone, from displaying the cross. R.B. Al2, Al7, A22.

After the ban took place, the government changed its position due

to pressure by the community in favor of the menorah and the

Christmas tree. R.B. Al4, A20. As evidenced by the record, the

State’s actions were directed at the Klan’s free exercise of what it

believes to be an essential keystone to its religious belief which it

manifests in religious and political speech.

Petitioners are excluding a particular cross which is one of

the central symbols of the Klan because it is a religious symbol. In

doing so, the State is trying to limit, if not prohibit, the Klan from

freely exercising its religious beliefs in a public forum. One of the

Klan’s central purposes is to promote Christianity across the United

States. P.C. 4. In order for the Klan to accomplish this goal, it has

displayed different crosses in different cities across the nation. P.C.

4. Any attempt by the State to deny the Klan’s efforts to erect the

cross, which is essential to its religious/political beliefs, denies the

Klan its Free Exercise protections.

"[B]elief and action cannot be neatly confined in logic tight

compartments.” Wisconsin v. Yoder, 406 U.S. 205, 220 (1972).

"Because the First Amendment does not distinguish between

religious belief and religious conduct, conduct motivated by sincere

religious belief, like the belief itself, must be at least presumptively

protected by the Free Exercise Clause." Smuth, 494 U.S. at 893

(O’Connor, J., concurring). In the case at hand, because such

distinctions cannot be made, there must be at least a presumption

that the actions of the Klan in trying to display a cross with a

disclaimer which indicated the political and religious purpose of its

display must be protected by the Free Exercise Clause. See Yoder,

406 U.S. at 220; Smith, 494 U.S. at 893 (O’Connor, J.,

concurring). The First Amendment and RFRA express a mandate

requiring the government to justify any substantial burden on

religiously motivated conduct by a compelling state interest and by

means narrowly tailored to achieve that interest. See Hernandez,

490 U.S. at 699; Smith, 494 U.S. at 894-895; RFRA 42 U.S.C. §

2000bb. "[OJnly an especially important governmental interest

pursued by narrowly-tailored means can justify exacting a sacrifice

of First Amendment freedoms as the prize for an equal share of the

rights, benefits, privileges enjoyed by other citizens." Bowen vy.

Roy, 476 U.S. 693, 728 (1986) (O’Connor, J., dissenting).

The State's actions in prohibiting the Klan from freely

exercising its religious beliefs** shows the State’s preference of a

*S In Smith, this Court suggested that this favoring of minority religions

is an "unavoidable consequence” under our system of government and that

accommodating of such religions must be left to the political process. In

response to such an argument, Justice O'Conner stated that the First

religious minority (Jewish) over the religious majority (Christians),

or possibly even one minority (Jewish) over another minority (Klan

Christianity).”” The State’s actions disavow its own duty to guard

and respect that sphere of inviolable conscience and belief which is

the mark of a free people. For this Court to allow such

compromise would be to deny our own tradition and forfeit our

standing to urge others to secure the protections of that tradition for

themselves. See Lee, 112 S. Ct. at 2658.

Minorities as well as majorities have the right to freely

exercise their First Amendment rights in a public forum. The

"[gJovernment may not interfere with efforts to proselyte or worship

in public places." McDaniel, 435 U.S. at 640 (Brennan, J..

concurring); see also Kunz v. New York, 340 U.S. 290, 311-313

(1951). The State’s actions discriminate against a majority,

Christians, and against the Klan who constitute a minority sect

within the majority. Many disagree with the Klan’s use of religion

and Christianity. The Klan is a prime example of those minorities

whose views and beliefs must be protected.

The very purpose of the Bill of Rights was to

withdraw certain subjects from the vicissitudes of

political controversy, to place them beyond the

reach of majorities and officials and to establish

them as legal principles to be applied by the courts.

One's right to life, liberty and property to free

Amendment was enacted precisely to protect the rights of those whose

religious practices are not shared by the majority and may be viewed with

hosulity. 494 U.S. at 903. At any rate, the Petitioners’ actions are far

from neutral or general in application.

If any lesson in history has taught us with regard to the

Establishment Clause it is that "in the hands of government what might

begin as a tolerant expression of religious views may end in a policy to

endoctrinate us. A state-created orthodoxy puts at risk that freedom of

belief and conscience which are the sole assurances that religious faith is

real, not imposed." Lee, 112 S. Ct. at 2658.

speech, and free press, freedom of worship and

assembly, and other fundamental rights may not be

substituted to vote; they depend on the outcome of

no elections.

Barnette, 319 U.S. at 638.

Bowing to public pressure because of disagreement with the

Klan’s message is to regulate religious belief and practice to

majority vote. The majoritarian approach which the State took in

this case is a blatant violation of the First Amendment.

CONCLUSION

For the foregoing reasons, the decision of the Court of

Appeals for the Sixth Circuit should be affirmed.

Respectfully submitted,

Mathew D. Staver

Frederick H. Nelson

Nicole Arfaras Kerr

Gina R. Perez Toro

LIBERTY COUNSEL

1900 Summit Tower Blvd.

Suite 540

Orlando, Florida 32810

(407) 875-2100

APPENDIX A

VARIATIONS OF THE CROSS

— TF

' The Graded Cross: “This is a Latin cross, the vertical member eight

to ten squares high and the horizontal member five to seven squares long.

It stands up on a base composed of three steps, hence its name. The

lowest step represents Charity, the broadest and greatest of the three

Thec'ogical Virtues, the second step denotes Hope, without which Charity

avails little. The highest step is Faith, and is placed next to the cross to

express the fact that Faith is the gift of the Crucified Lord, and not a thing

of men’s own creating. This graded cross, somewhat more slender than

the proportions indicated above, is often used upon the altar." Webber,

Church Symbolism 103 (1971).

* Saint Peter's Cross: “According to legend, Saint Peter died on an

inverted cross. By his request, he was crucified head downward, not

considering himself worthy to be crucified in the same position as his

Lord." See Roch, Book of Signs 14 (1955); see also Stafford, Christian

Symbolism 96 (1942).

* The Latin Cross: “This form of this cross is appropriate the world

over, and may be used by any religious body whose doctrines include a

confession of the Lord Jesus Christ and His atoning death. It is the actual

form of the cross upon which the Savior died, and it is safe to use it

almost anywhere. It is not as the Crux Immissa. A cross of satisfactory

proportions may be made by cutting twelve perfect squares out of

cardboard." The squares will be arranged as follows: "Eight squares high

and five squares wide." Anything thicker than that is clumsy. Church

Symbolism 100-101.

* Passion Cross: “This is a cross whose ends are cut to points. It is

also know as the Cross Urdée, and the Cross Champain, sometimes has the

Cross Pointed. It represents the suffering of our Lord, and has been called

by some authorities the Cross of Suffering. It is pictured as rising out of

a chalice, it represents our Lord’s agony in the Garden Gethsemane. It

may be used as a symbol of Good Friday. Church Symbolism 108.

> Latin Cross Fimbriated: Another decorated form of the Latin cross.

Id. at 130.

* Latin Cross Fleurée: “Latin cross which all ends terminate in leaf-

like ornaments suggesting the fleur-de-lys.". Church Symbolism 130.

’ Crux Ansata or the Cross Ankh: “A cross, supposedly of ancient

Egyptian origin. It might be either a Tau cross with a loop above it, or a

Latin cross similarly looped. A symbol of life." /d. at 110-111.

Tr RZ

* The Tau Cross: “This is sometimes called the Old Testament Cross.

the Anticipatory Cross, the Cross Commissée, the Egyptian Cross, the

Advent Cross, or Saint Anthony’s Cross. It is said to be the true form of

the cross raised up by Moses in the wilderness. In Roman times it was

called the Crux Commissa. It is merely a Latin cross minus its upper arm.

In Christian painting, the two thieves are shown hanging up on this type

of cross. Saint Anthony and Saint Matthew are both said to have died

upon such a cross and it is used as symbols of these two martyrs. In

paintings of the Crucifixion, Dismas is shown upon our Lord’s right and

Gesmas upon his left, both hanging up on Tau crosses. The Tau Cross is

the cross of prophecy, and the uplifting of the serpent of Moses is a type

of our Lord Jesus Christ. Hence this cross is used upon the violet ultra

and pulpit hanging for the Advent season and upon printed matter

announcing the special Advent services of the church. It is one of the very

oldest ones of the cross.” /d. at 101, 104.

‘ Cross Patée: “One of the most beautiful and most widely used forms

of the decorative cross. Its four arms curve outward, and its outer edges

are straight. Many variations of this cross exist. If each outer edge is

pointed, it is a Cross Patée Fitched. If the outer edges curved outward, it

is Cross Patée Convex. If they curved inward, it is called the Cross Patée

Concave. If scalloped, it is the Cross Patée Invected. If the sign is within

a circle, it is a Cross Alisée Patée. If the design is large, the Cross Patée

Out to be shown in outline only.” /d. at 122-123.

Cross Recercelée: “Similar to the Cross Moline except that the

curved ends are rounded instead of pointed." The Cross Moline is "[al

decorative form of the cross, with arms ending in two petals." See Church

Symbolism 126.

‘' Saint Julian’s Cross: “The Cross Crosslet Saltire is a cross shaped

like the letter X. Each arm ends on a Latin Cross. Church Symbolism

126-127; see also note 30.

'2 Saint Chad’s Cross: "The Cross Potent Quadrate.". Church

Symbolism 103; see also note 40.

'? Quarterly Pierced: "A cross with a square held the full width of the

arms, at the intersection of its arms.” Church Symbolism 124.

'* Cross Barbée: “A Cross whose ends resemble the barbs of fish

hooks or fish spears. Symbolical of ICHTHUS symbol of our Lord. Also

suggestive of the idea of ‘fisher of men.’" Church Symbolism 103.

* Anchored Cross: "A form of the cross, originating in primitive days

in the catacombs, formed by combining an anchor and a cross. The

symbol of Christian hope. Also an Heraldic Cross whose ends are curved

outward like the flukes of an anchor." Church Symbolism supra note 1.

decoration. Its arms are of a slight undulating character, like

conventionalized waves of the sea.” /d. at 128-129.

'’ Cross Vair: “A cross composed of four figures, each one roughly

resembling a bell. It derives its name from the Heraldic Fur called Vair."

Id. at 128-129.

= =

* Cross Quadrate: “A cross with a square at the intersection of its

arms.” Jd. at 124-125.

Cross Ragulée: “A cross wiih protrusions on its four arms, said to

suggest knots and looped-off branches of a tree. A Knotted Cross.” /d.

at 124, 126.

°° The Cross Fleury (also spelled Fleurie): “A form having four arms

of equal or unequal lengths, with pointed petal-like ends." Rest, Our

Christian Symbols 22 (1959).

Cross Voided: “Includes any cross, shown in outline only, so that

the color of the field or background shows through it, it is called a Cross

Voided.” Church Symbolism 128-129.

** Greek Cross Fimbriated: “Another decorative variation of the Greek

Cross in which a Greek Cross is superimposed over a bigger voided Greek

Cross." See Church Symbolism 128; see also supra note 6.

* Symbol for Obscure Species: Incorrect citation; dagger; death. See

Dreyfuss, Symbol Sourcebook: An Authoritative Guide to International

Graphic Symbols 221 (1972).

“ Treparted Flurée: “A cross of three parallel vertical members and

three parallel horizontal ones, and with all ends terminating in leaf-like

ornaments suggesting the fleur-de-lys." Church Symbolism 128-129.

** Cross Chapiteau - The Cross Capital: "A cross, derived from

heraldry, and now used decoratively, whose limbs terminate in

architectural form suggesting the capitals of columns.” /d. at 111, 113.

TuJvd

Latin Cross superimposed over a Greek Cross. See Symbol Sourcebook

7 |

*’ Symbol for Injections or Vaccinations. Id.

** Symbol for Pharmacy. Id.

*? A, B, C, D, Four Variations of the Ancient Anchor Cross: “When

the top part of an anchor is in the shape of a cross, it is called an Anchor

Cross, a symbol of Jesus Christ, our sure Anchor. This cross is carried

over from the days of persecution before Constantine, when Christians

were able to see Christian hope in the Anchor, while non-Christians saw

nothing but an anchor. An anchor is a symbol of hope ‘sure and steadfast’

(Hebrews 6:19)" Rest, Our Christian Symbols 20 (1954).

)

ml 4

Os a

" St. Andrew's Cross; or Saltiere: Saint Andrew is said to have been

crucified upon such a cross. Also known as the Crusata, Saint Patrick’s

Cross and Saint Alban’s Cross. Numerous variations of the Cross Saltire

exist, such as the Cross Saltire wavy, Cross Saltire Patée, Cross Saltire

Invected, Cross Saltire embattled, Cross Potent Saltire, etc. "Upon which

St. Andrew suffered a martyr’s death. Also called the Crux Decussata.

The boundary cross of the Romans, derived from the cross used by them

as a barrier. See Church Symbolism 104-105, 126-127.

' The Cross of lona: The Celtic, or Irish Cross. Which combined the

Latin Cross with the circle, the symbol of eternity. This type of cross was

first made in Ireland in about the fifth century, by men converted by St.

Patrick. They carved great blocks of stone into the bold design of the

cross and circle. Fine examples are found on the island of Iona. See

Fritz, The Use of Symbolism in Christian Education. "Some years ago

when Protestant bodies were afraid to use a true Latin Cross, due to some

fancied association with Rome, many crudely designed Celtic Crosses

might have been seen on a church spire. Such crosses were described

most aptly by a wag as ‘disguised crosses.’" Church Symbolism 105-107.

or Greek Cross. See Hangen, Symbols . . . Our Universal Language 12

(1962).

Al0

* Cross Botonnée or TreFlée: Also known as the Cross Bourdonee.

"A very beautiful form, either Greek or Latin in design whose ends

terminate in trefoils. Once commonly stamped on the covers of hymnals,

it is now used widely where a decorative form of the cross is desired. It

is often used in cornerstones." See Church Symbolism 111-112.

* Easter Orthodox Cross: “Within recent years, many churches have

been erected with a cross on their spires composed of a vertical and two

horizontal arms, and a third arm placed in slanting position. Such a cross

may be used only by the Eastern Church, and its presence upon a spire or

a dome signifies that the congregation is a member of the Eastern

Orthodox Church.” /d. at 10S.

* Patriarchal Cross: “In many paintings, and often in stained glass

windows, certain patriarchs are shown carrying a cross with two horizontal

arms, the upper one slightly shorter than the lower one. This is known as

the Patriarchal Cross. The upper arm represents the head of the Savior

when He was crucified." /d. at 105, 107.

All

a church with twin spires, each which is crowned with a cross having three

horizontal arms, each a little longer than the other. This is a curious

blunder, for such a cross is known as the Papal Cross. It is the cross

carried before the Roman pontiff, and may be used by none other, for it

is a distinctive mark of his office." Church Symbolism 107.

” Cross Lorraine: “Similar to the Patriarchal Cross, except that the

longer bar is near the base. The cross of the Holy League." /d. at 121.

“ This cross, either attached or detached, is found hewn in the stone

or painted on the walls of Roman Catholic churches, denotes that they have

been consecrated. See The Book of Signs 24-27.

** Sixteen Pointed Cross: A cross whose four ends each terminate in

four points, resembling the teeth of a saw." Church Symbolism 128.

a \. f

- ~/. Wily tk.

o2%9 LU Sy AF

cS LX

*” The Canterbury Cross: “A cross with four hammer-like arms which

spring from a square." Church Symbolism 112.

*! Maltese Cross: "A cross resembling four spear heads with the

points touching. The eight outer points of this cross must all be equidistant

from one another. It is a well known symbol of the Eight Beatitudes, and

is called the Regeneration Cross. Also the symbol of St. John’s Day. It

was worn by the Knights Hospitallers, ac Knights of St. John of Jerusalem.

It must not be confused with the Cross Patée." /d. at 121-122.

*. This cross is closely related to the cross voided, or gamadia. It is

"the beautiful badge of the German gymnastic clubs: composed of four

"F’s" standing for, Frisch, Fromm, Frohlich, Frei." (Hardy, godfearing,

cheerful and free) Book of Signs 19.

*} Cross Voided in Center: Latin or Greek cross in which its center is

shown in outline only. Church Symbolism 128.

Al3

ae HE ae

* Cross Potent: “Also known as the Jerusalem Cross. Four Tau

crosses whose lower ends meet. Called Cross Potent because of its

resemblance to an ancient crutch. A very fine form, and symbolical of the

Savior’s power to heal the diseases of men’s bodies and souls." /d. at 125.

** Symbol for "vinegar," "Cross Joint,” and "Threaded." Symbol

Sourcebook 221.

*° Cross Cramponée: “A Cross Potent with a part of each termination

missing. Similar to the swastika, except that the return arms are shorter.”

Church Symbolism 115.

*’ Swastika Cross, Rebated Cross: The FylFot, or Swastika. A cross

of extremely ancient origin, each arm of which is bent at right or left

angles. "It is believed by some to have symbolized the four cardinal points

of the compass. This form of cross was known to many non-Christian

races." Church Symbolism 126; see also, Symbols . . . Our Universal

Language 12.

Al4

** Elaborated form of the Swastika. The Book of Signs 18.

** Derived from the sun wheel by breaking the circumference of the

circle. Amongst the early Christians, this, as well as many other symbols,

including the Swastika Cross, "was used as a disguised cross during the

persecution of the Christians. Hence its name Crux dissimulata. It was

also called Crux gammata, from the fact of its being made up of four

Greek gammas." The Book of Signs 18.

” Roman Sacred Cross. Id. at 19.

*! Cross Moline: "A decorative form of the cross, with arms ending

in two petals." Church Symbolism 122.

°° The Cross Millrine: "A cross whose ends resemble somewhat the

clamp on the upper millstone.” /d.

Ok ermal

* Cross Cercellée. "Somewhat like the Anchored cross, except that

its curved ends resemble a ram’s horn." /d. at 113.

“ Cross Pommée: "A cross whose arms end in single knobs." /d. at

124-125.

* Cross Cantonnée: “Any large cross closely surrounded by four

smaller ones of similar design, is called a Cross Cantonnée.” /d. at 113.

fourth lower arm is drawn out to a sharp point, it is said to be fitched, or

pointed. "This form is said to be originated at the time of the Crusaders,

when the Crusaders carried small crosses with pointed lower arms, capable

of being thrust into the ground at the time of daily devotions." /d. at 117-

118.

Al6

>’ Coptic Cross with the Four Nails. The Book of Signs 20

*’ Greek Cross; Cross-Channel Fair-way; Left Bank; Red Cross:

Symbol Sourcebook 221: Church Symbolism 101, 103

Al7

RELIGIOUS SYMBOLS

fii

eH AA =

4 Ny Wp IXOYC

i) 61

y {

' “The third member of the Godhead, the Holy Spirit, has been most

often represented by the descending dove mentioned in the Baptism of

Jesus (Matthew 3:16-17).” Fritz, The Use of Symbolism in Christian

Education 26 (1952).

”

"The Fleur-De-Lys has been used to represent the Trinity." /d. at

*' "Among the earliest symbols . . . were those of identification; marks

by which, without danger, Christians might recognize their brothers in the

faith. The most familiar of these is ICHTHUS - the fish. In the Greek the

first letters of the phrase ‘Jesus Christ, Son of God, Savior’ formed the

word ‘fish.” The fish was often in the form of a dolphin.” /d. at 16.

* "The equilateral triangle often appeared in the catacombs as a

symbol of this triune God - Father, Son, and Holy Spirit, three in one,

equal, eternal.” /d. at 25.

” The trefoil was also used to symbolize the trinity. /d.

Al8

"A cross divides a section into four parts, and in each part are

placed two letters. In the upper left corner are the letters IC, which

abbreviate the name Jesus. In the upper right corner are the letters XC,

which stand for the name of Christ. In the left corner below the horizontal

bar of the cross the letters NI, and in the lower right corner, KA. The

letters IC XC NIKA stand for ‘Jesus Christ conquers.’ Since they are

around the cross one may add, ‘by the cross.’" Our Christian Symbols 7.

® Symbol for Hinduism, or Mandala. Symbol Sourcebook 221.

*’ Symbol of Christianity. Anchor; St. Clement. /d. at 138.

** The Chi Rho Symbol: An ancient monogram of Christ. Our

Christian Symbols 6.

icceenieicitaietenetitieanianiel

Al9

yt?

es).

py"

eae

-_~

tha

C (( Si

” Christian Symbol, "Triquetra:" "|A] design consisting of three equal

arcs, 1S also used as a symbol for the Holy Trinity. Its beauty as an

architectural design may be seen on some church buildings. Its richness

may be noted in that half the length of each pair of arcs forms a vesica

piscis (bladder of a fish).” /d. at 16-17.

” Symbol representing the "Wheel of Law" in Buddhism. Symbol

Sourcebook 138.

' Christian Symbol of the Holy Grail inn reference to eternal life. See

The Use of Symbolism in Christian Education 17.

” Christian symbol: Jesus the Lamb of God (John 1:29). Id.

Christian Symbol of Identification (supra note 61) used to mark a

house in which the Lord’s Supper was to be secretly celebrated. /d. at 16.

A20

* Christian Symbol in reference to John 8:12, “Again Jesus spoke to

them, saying, ‘I am the light of the world; he who follows me will not

walk in darkness, but will have the light of life." /d. at 18. Also

representing the Bible. Our Christian Symbols 28.

° Tibetan Buddhist symbol representing “The Path of Universality."

Symbol Sourcebook 138.

Symbol of Christianity monogram representing Christ. Our

Christian Symbols 5-6. Also represents the Son of Righteousness. See

Stafford, Christian Symbolism 37 (1942).

” Christian Symbol representing the Gethsemane. /d. at 62.

* "The eagle denotes the evangelist John. The spirit of the gospel of

John, formerly thought to have been written by John the apostle, is like an

eagle soaring to the throne of grace." Our Christian Symbols 35-36.

A22

Crosses in Government Decoration”

United States Distinguished Service Cross of the Army

(square cross circled with the sign of eternity

and carrying at its center an eagle); see supra

note 58, 78.

Navy Cross

(resembles the Canterbury or consecration

cross, squared with rounded ends, and having

bundles of light rays, signifying immortality,

shooting from the intersection of its arms)”

Distinguished Flying Cross

(reminiscent of the Bethlehem cross, is a cross

pattee with squared-off bundles of light,

carrying on its upper surface a square cross

formed by the propellers of an airplane)*!

Germany German Iron Cross

Hitler's Mothers’ Cross

England The cross of the British Champlains’ Corps

(embodies three crosses, including a Maltese

and a round-ended square cross surrounded by

the words, "In This Sign Conquer")™

Miller, A Treasury of the Cross 17-18 (1956).

” See supra note 40 and accompanying text.

“! See supra note 9 and accompanying text.

*° See supra note 41 and accompanying text.

A23

British civilian Orders of Knighthood, such as

“The Most Noble Order of the Garter" (usually

incorporates a cross on their badges)

United States

Great Britain

Norway

Greece

Finland

Sweden

A24

Crosses in Flags”

The Confederate flag

(carried the X-shaped St. Andrew’s cross)™

Union Jack of Great Britain

(carries the X-shaped St. Andrew’s cross, with

the X-shaped St. Patrick’s cross-re on white-,

as well as a square cross intersecting it)”

Unequal-armed blue cross on a red field.

Square Greek cross in white against a blue

field.”

Square white cross, reverse of the Red Cross

symbol .*’

Incorporates crosses on its merchant flag.

Incorporates crosses on its man-of-war flag.

* Book of Signs 18-19.

See supra note 30 and accompanying text.

85 See supra note 30 and accompanying text.

14 pany ing

*” See supra note 58 and accompanying text.

errs

A25

Crosses in the Philately* of Nations‘

Italy

Latvia

Lithuania

Rumania

Portugal

Spain

New Caledonia

1926 & 1929 (crosses are seen among

Romulus, Remus, and the wolf of Rome)

1932 (crosses appear one in conjunction with

the dome of St. Peter’s, and one circled cross

embodying angel wings)”

1926 & 1929 (Eastern crosses are seen on their

stamps)”

1926 & 1929 (Eastern crosses are seen on their

stamps)”

1935-36 (Rumania included a Christian cross in

her stamp designs)

1935-36 (Portugal included a Christian cross in

her stamp designs. )

1930 (Spain issued a dramatic stamp showing a

huge-sailed galleon protected by the cross)

(From time to time issued cross-bearing stamps)

New South Wales (From time to time issued cross-bearing stamps)

™ Philately: “The collection and study of postage stamps and related

materials." The American Heritage Dictionary 515 (2d ed. 1983).

” Book of Signs 19-20.

” See supra note 38 and accompanying text.

*' See supra note 34 and accompanying text.

* See supra note 34 and accompanying text.

Nicaragua

Peru

Czechoslovakia

Greece

Germany

French

Equatorial

Africa

Belgium

A26

(From time to time issued cross-bearing stamps)

1929 (Issued a stamp on which a cross bears

witness to the Christian faith of that country)

1913 & 1922 (During the years of occupation

Greece placed crosses on stamps)

1934 (Germany printed a stamp emblazoned

with the swastika, the hooked cross used by

Nazism as its symbol)”

1938 (Placed a form of the Christian cross on

a stamp)

(A valuable Belgium stamp carries a double-

barred Lorraine cross on the shield of a horse-

mounted Crusader to commemorate the leader

of the First crusade, Godfrey de Bouillon, who

sold his castle in the valley of the Semolis and

left his possessions to follow Christ.)”

See supra note 46-49 and accompanying text.

“ See supra note 37 and accompanying text.

APPENDIX B

STATEMENTS OF INTEREST OF AMICI CURIAE

Liberty Counsel is a nonprofit civil liberties education and legal

defense organization. Liberty Counsel concentrates on providing

education and legal defense involving freedom of speech, freedom

of religion, and church-state relations.

The issue before this Court has far-reaching ramifications for

free speech, free exercise of religion, and the Establishment Clause.

Liberty Counsel is concerned that a ruling prohibiting the Klan from

displaying their cross in an open forum would have a devastating

effect on religious speech. Though not in agreement with the tenets

promoted by the KKK, Liberty Counsel believes that the Klan has

the right to express its ideas, no matter how abhorrent, as any other

group society may deem acceptable.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.