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

fh

\J

No. 94-780 _

In The

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

United States Court Of Appeals

For The Sixth Circuit

7

BRIEF AMICUS CURIAE OF

CHRISTIAN LEGAL SOCIETY

IN SUPPORT OF RESPONDENTS

+

Steven T. McFartanp* THomas C. BERG

Samuet B. Casey 800 Lakeshore Drive

Grecory S. BAYLOR Birmingham, AL 35229-7021

Kimpertee Woop Corey (205) 870-2774

Center for Law and — irr

Religious Freedom 1a ang

Christian Legal Society ee Street

' 8 Austin, TX 78705-3299

4208 Evergreen Lane

(512) 471-3275

Suite 222

Annandale, VA 22003

(703) 642-1070

“Counsel of Record

COCKLE LAW @RIEF PRINTING CO,, (800) 225-6964

m® CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

ER I PA SE So hig cece sea vetecetaeens ii

STATEMENT! GP Tite CASE... occas escccceneses 1

SUPERCAR CP APS UEIWE 6 oon cece cece cinccenees 1

po) 3 5 i i erent er rer er eee eee eT Tee 4

I. Petitioners’ Exclusion of Respondents from a Tra-

ditional Public Forum Constitutes a Prima Facie

Violation of the Free Speech Clause............ 4

Il. The Establishment Clause Does Not Justify Peti-

tioners’ Violation of Respondents’ First Amend-

gf eee herr rer ry err rere Tee rere 6

A. A Government's Refusal to Censor Protected

Private Speech Does Not Even Implicate the

Establishment Clause...............ecees<- 6

B. This Court’s Equal Access Cases Control the

eo i ae ere Tree ere 8

O

A Private Display in a Public Park Does Not

Violate Any Articulation of the Establish-

ee rT er Pre rer ery ee 11

D. Petitioners’ Novel “Subjective Observer”

Theory Would Seriously Damage Both Reli-

%

i

gious Liberty and the Institutional Integrity

sf ., Peererer err rrrr errr Te rcr ey 21

CREE sce edsac kee dineasun tee tesaeens <8 ae

Py | SN nee aris ent ar ert ar re hen en App. 1

4

a

“4

|

gon ele,

Tie ae

TABLE OF AUTHORITIES

Page

Cases

Americans United for Separation of Church & State v.

Grand Rapids, 980 F.2d 1538 (6th Cir. 1992) (en

banc), 844 F. Supp. 1182 (S.D. Ohio 1993)..7, 17, 18, 26

Board of Education v. Mergens, 496 U.S. 226 (1990) . . . passim

Butler v. Michigan, 352 U.S. 380 (1957)............... 14

Cantwell v. Connecticut, 310 U.S. 296 (1940).......... 24

Carey v. Brown, 447 U.S. 455 (1980)..............0..... 5

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

+e Bee, 2 FS Aes 22, 26

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

55D 3 GR. BERS Clee xen oie ae eee eae 24

Coates v. Cincinnati, 402 U.S. 611 (1971) ........... eae

Congregation Lubavitch v. City of Cincinnati, 997

FOG 1560 Gs Cie. FOR sx cn dcccsineevvacesicases 25

County of Allegheny v. ACLU, 492 U.S. 573 (1989) ... passim

Doe v. Small, 964 F.2d 611 (7th Cir. 1992) (en banc) .... 16

Edwards v. Aguillard, 482 U.S. 578 (1987) ......... 10, 20

Edwards v. South Carolina, 372 U.S. 229 (1963) ....... 10

Fowler v. Rhode Island, 345 U.S. 67 (1953)...... 5, 23, 24

Hague v. Committee for Indus. Orgs., 307 U.S. 496

CE Sak. credo nsdadeeaukenumekebaae dusts 4,5, 14

Hedges v. Wauconda Community School Dist., 9 F.3d

ge, Be S| er errr rer oer 25, 26

SPQ MORE ert

iil

TABLE OF AUTHORITIES - Continued

Page

International Soc’y for Krishna Consciousness v. Lee,

Ee GS) a 6

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

ee ne GVA nA ws oad bo eee 4 Os 22

Lamb's Chapel v. Center Moriches School Dist., 113 S.

Re 2 8 SG ear passim

Larson ©. Valente, 456 U.S. 226 (1962)................ 24

Lee v. Weisman, 112 S. Ct. 2649 (1992)................ 7

Lynch v. Donnelly, 465 U.S. 668 (1984) ............... 15

Micisanie! v. Paty, 495 US. 618 (1978).............. ae

Murdock v. Pennsylvania, 319 U.S. 105 (1943).......... 1

Niemotko v. Maryland, 340 U.S. 268 (1951) ..... S; 23, 24

Perry Educ. Ass'n v. Perry Local Educators’ Ass‘n,

SE ee dn a ne ase ed wm en wrens 2, 6, 10

Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972) ..... 5

Pruneyard Shopping Center v. Robins, 447 U.S. 74

eR odio es cu cas chai eae ware tinned 16

R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992) ...... 3

Schneider v. State, 308 U.S. 147 (1939) ............... 20

Travis v. Owego-Apalachin School Dist., 927 F.2d 688

CoG ie ta es bee ee Ae sek eve ese 25

Wallace v. Jaffree, 472 U.S. 38 (1985) .......... 12, 20, 22

West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624

eo rer oa ee EN SERA s be abe Ra TNE hoe ees 24

TABLE OF AUTHORITIES - Continued

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

Widmar v. Vincent, 454 U.S. 264 (1981)...........

Law Review ArTICLES

Amar, Akhil, The Bill of Rights and the Fourteenth

Amendment, 101 Yale L.J. 1193 (1992)............

Laycock, Douglas, Equal Access and Moments of

Silence: The Equal Status of Religious Speech by

Private Speakers, 81 Nw. U.L. Rev. 1 (1986)......

Laycock, Douglas, Formal, Substantive, and Disag-

gregated Neutrality Toward Religion, 39 DePaul L.

Rev. 993 (1990) ....... 0. cece leccucececeseseceees

STATEMENT OF THE CASE

Amicus adopts the statement of the case set forth in

the opinion of the court of appeals (Pet. App. A2-A4).

?

SUMMARY OF ARGUMENT

Cases involving the interaction of religion and gov-

ernment often present difficult First Amendment issues

that divide this Court. But two principles are clear from

the Court’s decisions. On one hand, under the Establish-

ment Clause, government may not specially promote reli-

gion. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573

(1989). On the other hand, individual citizens and private

groups have the constitutional right to promote religion

themselves — to express and advocate their religious

views — on the same terms as citizens of other views. The

right to express religious views in public discussion and

debate is central to both the Free Speech and Free Exer-

cise Clauses, as this Court has long recognized. See, e.g.,

Murdock v. Pennsylvania, 319 U.S. 105 (1943) (both

clauses); Widmar v. Vincent, 454 U.S. 263 (1981) (Free

Speech); McDaniel v. Paty, 435 U.S. 618 (1978) (Free Exer-

cise).!

' Indeed, many of this Court’s seminal decisions protecting

freedom of speech involved religious speech, particularly by

Jehovah's Witnesses. Moreover, the framers and proponents of

the Fourteenth Amendment were deeply concerned with pro-

tecting religious speech, such as abolitionists had engaged in,

against state action. Amar, Akhil, The Bill of Rights and the Four-

teenth Amendment, 101 Yale L. J. 1193, 1278-80 (1992).

In order for the various provisions of the First

Amendment to coexist — to respect freedoms of religious

speech and exercise while avoiding government estab-

lishments — courts must draw a sharp distinction between

speech by government and by private citizens. “There is a

crucial difference between government speech endorsing

religion, which the Establishment Clause forbids, and

private speech endorsing religion, which the Free Speech

and Free Exercise Clauses protect.” Board of Education v.

Mergens, 496 U.S. 226, 250 (1990) (plurality opinion).

Under the First Amendment, citizens’ speech may

not be censored on the ground that its content is reli-

gious; when government permits speech reflecting other

viewpoints,_it is constitutionally forbidden to exclude

religious speech. Widmar, supra; Lamb’s Chapel v. Center

Moriches School Dist., 113 S. Ct. 2141 (1993). This case calls

on the Court to reaffirm the protection of citizens’ reli-

gious speech against content-based discrimination in a

public forum. Respondents were prohibited from display-

ing a cross in Capitol Square (concededly a public forum

where numerous groups have spoken) solely because the

cross is a religious symbol. Any restrictions on access to a

traditional public forum are subject to the strictest scru-

tiny. Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460

U.S. 37, 45 (1983).

Petitioners, the state officials, justify their suppres-

sion of this religious expression on the ground that some

observers might think the state was endorsing the reli-

gious message represented by a cross. This is yet another

refrain of a tune this Court has heard countless times

before, and has rejected each time. When a forum for

expression is open to a wide variety of organizations, the

fact that the government holds the forum in trust for the

people “does not confer any imprimatur of State approval

on religious sects or practices.” Widmar, 454 U.S. at 274;

see also Lamb's Chapel, 113 S. Ct. at 2148; Mergens, 496 U.S.

at 248-49.

The equal access principle fully controls this case.

There is no basis for distinguishing an expressive display

from the meetings that this Court held are protected in

Widmar, Lamb's Chapel, and Mergens. Petitioners argue

that some observers who see an unattended religious

symbol close to government buildings will conclude that

government sponsors or endorses the religious message.

But such misperceptions are not reasonable and cannot

serve as the basis for content-based suppression of reli-

gious speech. Avoiding unreasonable misperceptions

does not justify the very real silencing of religious speech.

The remedy for misinformed observers is more informa-

tion, not censorship.

The fear that some observers would perceive a state

endorsement of religion is the only ground on which -

Petitioners defend their exclusion of the cross. That

ground applies to any group erecting a religious display.

Therefore, it is legally irrelevant to this case that the

group displaying the cross is the Ku Klux Klan. The state

officials do not claim power here to regulate speech that

inflicts harms through racial, gender, or religious bigotry.

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

over, state officials “do not contend that the erection of

the cross poses a security risk of any kind” that would

justify regulation. Pet. App. A16.

Petitioners’ argument for unique disabilities on pri-

vate religious speech suggests that, ironically, the cross is

more problematic to the state of Ohio than is the Klan.

Under Petitioners’ argument, a racially offensive display

by the Klan would be constitutionally protected while the

‘cross would be forbidden. This Court should put an end

to such anomalous, discriminatory treatment of religious

speech.

ARGUMENT

I. PETITIONERS’ EXCLUSION OF RESPONDENTS

FROM A TRADITIONAL PUBLIC FORUM CON-

STITUTES A PRIMA FACIE VIOLATION OF THE

FREE SPEECH CLAUSE.

Petitioners and their supporting amici understanda-

bly de-emphasize the central fact of this case: that the

government excluded protected private speech from a

traditional public forum based upon its content. By pro-

ceeding directly to the supposed justification therefor,

they minimize the constitutional gravity of this act of

censorship.

Despite this tactic, it simply cannot be avoided that

the government in this case barred a message from a

space that has “immemorially been held in trust for the

use of the public and, time out of mind, ha[s] been used

for purposes of assembly, communicating thoughts

between citizens, and discussing public questions.” Hague

v. Committee for Indus. Orgs., 307 U.S. 496, 515 (1939)

(Roberts, J., concurring). There is no dispute that Capitol

Square is such a public forum: as the court of appeals

found, “[o]ver the years, groups as divergent as the Ku

Klux Klan and the United Way have held rallies and

sponsored speeches in the square.” Pet. App. A6. Access

to such arenas to engage in speech is a fundamental right

rather than a privilege bestowed by government.?

Several of this Court’s seminal decisions protecting

freedom of speech involved viewpoint discrimination

against religious speech in public parks. See Fowler v.

Rhode Island, 345 U.S. 67, 69-70 (1953) (striking down

state’s refusal to allow Jehovah's Witnesses to preach in

public parks when other groups had been allowed to

meet); Niemotko v. Maryland, 340 U.S. 268, 272-73 (1951)

(same, where other groups including Order of Elks had

been permitted to meet). These and other of the Court's

precedents do not countenance the glaring imposition

upon free speech rights involved in this case. See, e.g.,

Hague, supra; Carey v. Brown, 447 U.S. 455 (1980) (striking

down ordinance barring picketing in public forum); Police

Dep't of Chicago v. Mosley, 408 U.S. 92 (1972) (invalidating

city’s selective prohibition of certain picketing in public

forum). When civil rights demonstrators engaged in

political and religious speech and singing at the South

Carolina State House, this Court recognized that such

* A more extreme version of Petitioners’ devaluation of the

right to speak in a public forum is found in the brief amicus

curiae of the Town of Trumbull, Connecticut and the Connecticut

Civil Liberties Union Foundation. This brief (at p. 3) declares

that government respect for this right is tantamount to a “cash

subsidy.” It is indeed a sad day when an affiiiate of the Ameri-

can Civil Liberties Union sees no difference between exercising

fundamental First Amendment freedoms and receiving govern-

ment largesse.

peaceful expression “at the site of the State Government”

was “an exercise of these basic constitutional rights in

their most classic and pristine form.”

This Court’s decisions have recognized the signifi-

cance of the Free Speech interests at stake in this case by

applying a very stringent standard to content-based

restrictions upon private speech in a traditional forum.

See, e.g., International Soc’y for Krishna Consciousness v. Lee,

112 S. Ct. 2701, 2705 (1992); Perry Educ. Ass'n v. Perry

Local Educators’ Ass'n, 460 U.S. 37, 45 (1983). These cases

impose a heavy burden upon Petitioners to justify their

very real abrogation of First Amendment rights. As dis-

cussed below, Petitioners’ invocation of attenuated Estab-

lishment Clause concerns plainly does not justify the

content-based total exclusion of religious symbols they

propose.

Il. THE ESTABLISHMENT CLAUSE DOES NOT JUS-

TIFY PETITIONERS’ VIOLATION OF RESPON-

DENTS’ FIRST AMENDMENT RIGHTS.

A. A Government’s Refusal to Censor Protected

Private Speech Does Not Even Implicate the

Establishment Clause.

The rule adopted by the court of appeals in this case

is both simple and correct. Private religious speech in a

public forum is just that: private speech. It is protected by

the Free Speech and Free Exercise Clauses and should

never give rise to a reasonable inference of government

sponsorship that would require prohibiting it under the

Establishment Clause.*

Given that this case undeniably involves private

speech, it does not require the Court to determine what

sorts of government aid to religion violate the Establish-

ment Clause (is “non-coercive” aid permissible, or is any

“endorsement” or approval of religion forbidden).* The

central point in this case is not what kind of religious

speech or action by government is prohibited. It is the

3 Petitioners and their amici erroneously characterize the

lower courts’ reliance upon these principles as a per se rule. In

reality, the court of appeals, for instance, declared that the facts

that the “ ‘display is privately sponsored, and it stands in a

traditional public forum are not automatically determinative, but

recent precedent indicates that they should carry much more

weight than the details of the display emphasized by the [peti-

tioners].’ ” 30 F.3d 675, 679, quoting Americans United for Separa-

tion of Church & State v. Grand Rapids, 980 F.2d 1538, 1545 (6th

Cir. 1992) (en banc) (emphasis added); 844 F. Supp. 1182, 1186-87

(S.D. Ohio 1993).

Instead, it is Petitioners and their amici that advocate a per se

rule, contending that the Establishment Clause forbids “any

isolated, unattended display of a purely religious symbol at the

seat of government.” (Pet. Br. at 12).

4 To be sure, if the clause prohibits only government “coer-

cion” to practice religion, see, e.g., Lee v. Weisman, 112 S. Ct. 2649,

2655 (1992) (“at a minimum, the Constitution guarantees that

government may not coerce anyone to support or participate in

religion”), County of Allegheny v. ACLU, 492 U.S. 573, 659-660

(1989) (Kennedy, J., concurring), then government does not vio-

late it by permitting a private group to erect a display ina forum

where numerous other groups are free to speak. See, e.g.,

Mergens, 496 U.S. at 261-262 (Kennedy, J., concurring in the

judgment) (voluntary student religious club is not coercive).

fact that there is no religious speech or action by govern-

ment in the first place: Petitioners’ Establishment Clause

concerns arise when government merely fails to censor

private religious speech.

Thus, the result is no different under the rule that the

Establishment Clause requires government to avoid non-

coercive “endorsements” of religion (that is, to remain

strictly “neutral” toward religion): the display still cannot

be suppressed. Under the endorsement analysis, “there is

a crucial difference between government speech endorsing

religion, which the Establishment Clause forbids, and

private speech endorsing religion, which the Free Speech

and Free Exercise Clauses protect.” Mergens, 496 US. at

250 (plurality opinion).

B. This Court’s Equal Access Cases Control the

Outcome of This Case.

This Court has repeatedly held that the Free Speech

Clause guarantees religious groups the right to equal

access to expressive fora open to other groups, and that

to give such access conveys no message of government

endorsement of religion. In Widmar v. Vincent, supra, the

Court held that a public university could not exclude a

student group from meeting in school facilities on the

basis of the religious content of the group’s discussions,

when such facilities were open to other student groups.

Widmar, 454 U.S. at 267-270, 277. In Lamb's Chapel v. Center

Moriches School Dist., supra, the Court unanimously held

that a religious group could not be denied use of a public

school auditorium after school hours when that property

had been opened to a “wide variety of private organiza-

tions” to speak on “social or civic” subjects. Lamb’s Chap-

el, 113 S. Ct. at 2148. And in Mergens, the Court upheld

the Equal Access Act, which prohibits public high schools

that receive federal funds and have an “open forum” for

student clubs to discriminate against any student club on

the basis of the religious, political, or other content of its

speech. Mergens, 496 U.S. 226.

In each of those cases, opponents of equal access

trotted out the same arguments they do today: some

student or member of the community might see the reli-

gious speech on public property and infer that the gov-

ernment promotes or endorses that speech. In each case

the Court soundly rejected the argument. In Widmar, the

Court pointed out that “[u]niversity students are

... young adults... and should be able to appreciate that

the University’s policy [in maintaining an open forum] is

one of neutrality toward religion.” 454 U.S. at 274 n.14. In

Mergens, the Court found that the “proposition that

schools do not endorse everything they fail to censor is

not complicated,” and that “secondary school students

are mature enough and are likely to understand that a

school does not endorse or support student speech that it

merely permits on a nondiscrimir.atory basis.” 496 U.S. at

250; id. at 261 (Kennedy, !, concurring). And in Lamb's

Chapel, the Court unanimously held that nondiscrimina-

tory access for religious groups would create “no realistic

danger that the community would think that the District

was endorsing religion or any particular creed.” 113 S. Ct.

at 2148.

Indeed, the Court has recognized that to single out

displays reflecting religious views for censorship — to

10

“refuse[ ] to let religious groups use facilities open to

others” —- “would demonstrate not neutrality but hostility

toward religion.” Mergens, 496 U.S. at 250; cf. id. at 261

(Kennedy, J., concurring) (arguing that eliminating reli-

gious views “may result in neutrality in name but hostil-

ity in fact”).

Remarkably, Petitioners themselves seem to concede

this important point. They argue that putting a sign ona

religious display to disclaim government endorsement

(as was done here) is an inadequate compromise because

“[t]here is a fine line between nonapproval and disap-

proval in the minds of many people” and therefore “[a]

sign that communicates the government’s complete non-

involvement could be interpreted as being hostile to reli-

gion.” Pet. Br. 48. Common sense would suggest that if

people might perceive hostility or disapproval from such

a disclaimer, they will almost certainly perceive hostility

and disapproval if the government refuses to permit the

display altogether.

It is important to note that these broad principles of

equal access have been declared in the context of public

schools, where “the Court has been particularly vigilant

in monitoring compliance with the Establishment Clause”

(Edwards v. Aguillard, 482 U.S. 578, 583-584 (1987)). If

nondiscriminatory access for religious speech creates no

reasonable perception of endorsement in the schools,

then it even more clearly creates no such endorsement in

the context of a public square or park, the “quintessential

public forum” (Perry Educ. Ass’n v. Perry Local Educators’

Ass'n, 460 U.S. 37, 45 (1983)). The same is true, in particu-

lar, for the grounds of a state capitol. See Edwards v. South

Niece eneanestaiataaaeiaaeeiaiaeneeiaiaimneniianaiainel

11

Carolina, 372 U.S. 229, 235 (1963) (reversing demonstra-

tors’ convictions for breaching the peace by protesting on

grounds of state capitol).

C. A Private Display in a Public Park Does Not

Violate Any Articulation of the Establishment

Clause.

Even if the Establishment Clause applies at all to

protected private speech and if this Court’s equal access

decisions are not deemed controlling, the Establishment

Clause nonetheless does not justify Petitioners’ suppres-

sion of speech. This conclusion is inevitable under any

conception of the Establishment Clause.

As amicus Christian Legal Society has stated in prior

briefs, the primary value underlying the Establishment

Clause is government neutrality toward religion.’ Gov-

ernment action does not violate the Establishment Clause

unless it accords religious institutions or activities prefer-

ential treatment over nonreligious activities in a way that

induces religious exercise. The religion clause “require[s]

government to minimize the extent to which it either

encourages or discourages religious belief or disbelief,

practice or nonpractice, observance or nonobservancee. . . .

[R]eligion should be left as wholly to private choice as

anything can be.” Douglas Laycock, Formal, Substantive,

° For a fuller discussion of amicus Christian Legal Society’s

proposed refinement of the Establishment Clause analysis, see

its amicus curiae briefs in Rosenberger v. The Rector and Visitors of

the University of Virginia, No. 94-329, pp. 7-8; Board of Education

of the Kiryas Joel Village School District, No. 93-517, p. 3; and

Zobrest v. Catalina Foothills School District, No. 92-94, p. 20.

12

and Disaggregated Neutrality Toward Religion, 39 DePaul L.

Rev. 993, 1001-02 (1990).

Putting aside for the moment the Free Speech

Clause’s prohibition on excluding Respondents from a

traditional public forum, the relevant question is whether

that exclusion is the more neutral course of action. To ask

such a question is to answer it: singling out religious

symbols for exclusion clearly is not government neu-

trality towards religion. Treating a religious message like

all other messages plainly does not constitute a prefer-

ence that induces observers to engage in religious activ-

ity. To the extent that displaying a cross in a public park

recruits adherents to the Christian faith, such effect is

attributable to private speech; the government's failure to

suppress that private speech cannot reasonably be

deemed the cause of such conversions.

Petitioners and their amici implicitly suggest that the

“endorsement” test requires a court to ask a different set

of questions than those indicated by the neutrality

approach. Despite the questionable merit of that sugges-

tion, it remains clear that the Establishment Clause is not

violated under Petitioners’ conception of the proper test.

The endorsement analysis requires a determination

whether a “reasonable” or “objective” observer would

view the display as endorsing religion. See, e.g., County of

Allegheny, 492 U.S. at 620 (Blackmun, J.); Wallace v. Jaffree,

472 U.S. 38, 70 (1985) (O’Connor, J., concurring). Just as

this “objective observer” must be “acquainted with the

Free Exercise Clause and the values it promotes” (Jaffree,

472 U.S. at 83 (O’Connor, J., concurring)), so any “objec-

tive” or “reasonable” observer must be held to be familiar

13

with the values underlying the Free Speech Clause. Rea-

sonable observers should realize that the very purpose of

a public square or park is for communication and assem-

bly by citizens. In addition, reasonable observers should

know the principle that the religious speech of private

citizens is protected, and that governments “do not

endorse everything they fail to censor.” Mergens, 496 U.S.

at 250. Given this knowledge, a reasonable observer

should conclude that religious expression among other

forms of expression in a public park or square is not the

government speaking, but is simply citizens engaging in

the time-honored practice of speaking themselves.

Like opponents of equal access in previous decisions,

Petitioners and their supporting amici try to justify cen-

sorship by arguing that this situation is different from all

the previous ones. They focus on two features: the unat-

tended nature of the display and its location in front of

the state capitol. See, e.g., Pet. Br. 9.

Petitioners offer scant evidentiary support for their

implausible claim about what observers will perceive, in

large part simply speculating that “everyone” will con-

clude that government endorsed the religious display.®

Such misperceptions, even if they would actually occur,

© The only evidentiary support cited in Petitioner’s brief is

the testimony of a single witness who suggested that one might

infer that government supported a United Way display. The

witness also testified that “if I had heard that the state did not

allow it, that that would indicate a disapproval.” (Joint Appen-

dix at 161). Other than one person’s speculation about the effect

of a different display, Petitioners cite no factual evidence for

their naked assumption that “everyone” would perceive a reli-

gious display to be publicly sponsored.

14

are just not “reasonable” and certainly should not justify

suppressing speech in a public forum. Petitioners assume

that observers will be unaware of many of the facts

crucial to determining endorsement. For example, the

“observer” that Petitioners posit does not know who has

erected and paid for an unattended display, and simply

assumes that such a display was erected by the land-

owner. Pet. Br. 9, 15.7

The observer also does not know about the message

on the sign attached to the display in this case, which

stated that the cross was erected by a private group and

was not endorsed by the state. See Pet. Br. 46-47 (arguing

that disclaimer sign could not be seen from a distance

and could not be “understood by children, the non-

English speaking, or the illiterate”). This Court long ago

held that government cannot “reduce the adult popula-

tion of Michigan to reading only what is fit for children.”

Butler v. Michigan, 352 U.S. 380, 383 (1957). Neither can

Ohio reduce speech at the state capitol to only what will

not confuse children and illiterates.

Moreover, the kind of ignorance that Petitioners

assume is inconsistent with this Court’s decisions, which

indicate that the reasonable observer should be held to be

7 Comparing a public park to a private citizen’s land

(which Petitioners do to support their implausible contentions

about what a spectator would observe) is totally inappropriate.

There is surely a difference between public land that has “imme-

morially been held in trust for the use of the public,” Hague, 307

U.S. at 515, and private property. That a third party might infer

that a private landowner endorses a message displayed on his

property says absolutely nothing about what a third party

might infer from a display in a traditional public forum.

hac caniatiatatancenimeeanereaeeael

15

familiar with all the facts of the case. If, as Justice O’Con-

nor has said, “the endorsement test depends on a sensi-

tivity to the unique circumstances and context of a

particular challenged practice” (County of Allegheny, 492

U.S. at 629 (O’Connor, J., concurring)),® then the “reason-

able observer” must know all those circumstances. Thus in

Widmar, for example, the Court assumed that university

students would be aware not only that a large number of

student organizations met on campus, but also the less

obvious fact that the university had a policy, reflected in

its student handbook, that its name “not ‘be identified in

any way with the aims, policies, programs, products or

opinions of any organization or its members.’ ” Widmar,

454 U.S. at 274 n.14 (quoting university handbook). And in

Lamb's Chapel, the Court assumed that “the community”

would know that the church group’s meeting “would have

been open to the public, not just to church members,” as

well as that “[t]he District property had repeatedly been

used by a wide variety of private organizations.” Lamb's

Chapel, 113 S. Ct. at 2148.

It is ironic, therefore, that Petitioners attack the Sixth

Circuit’s so-called “per se” approach for “fail[ing] to

engage in an evaluation of ‘all the relevant facts.’ ” Pet.

Br. 21. It is Petitioners who make selective assumptions

about what an observer will and will not know - assump-

tions all designed to lead to the conclusion that observers

will misperceive private speech as government speech.

8 Accord Lynch v. Donnelly, 465 U.S. 668, 694 (1984) (O’Con-

nor, J., concurring).

16

Many of the misperceptions Petitioners suggest can

easily be dispelled if the reasonable observer makes simple

inquiries before assuming that government sponsors a

religious display in the public park. The observer can see |

that there are other, possibly conflicting, symbols else-

where in the forum (for example, in this case, the menorah

that stood near the cross in Capitol Square). The observer

can also read any sign (such as the one here) that makes it

clear that a display is erected and funded by a private

group rather than by the government. Finally, the observer

can find out whether a private group erected or paid for

the display, whether many other forms of expression have

been permitted on the property, and so forth. The remedy

for arguably misleading speech is more speech, not censor-

ship; the remedy for misinformed observers is more and

better information, not censorship.? Otherwise, as Judge

Easterbrook has put it, to focus on such misimpressions

“create[s] an obtuse observer’s veto [over religious

speech], parallel to a heckler’s veto over unwelcome politi-

cal speech.” Doe v. Small, 964 F.2d 611, 630 (7th Cir. 1992)

(en banc) (Easterbrook, J., concurring).

If the kind of misperceptions suggested by Peti- |

tioners are legitimate, then there is no basis for the dis-

tinction Petitioners try to draw between “live” meetings |

9° “If there be time to expose through discussion the false-

hood and fallacies, to avert the evil by the process of education,

the remedy to be applied is more speech, not enforced silence.”

Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J.,

concurring). See, e.g., Pruneyard Shopping Center v. Robins, 447

U.S. 74, 87 (1980) (mistaken identification of particular

speaker’s views with those of property owner remedied by

owner’s public disclaimer).

17

and an unattended display. The misimpressions of an

“obtuse” observer could also have justified suppressing

the live religious meetings that were protected in Widmar,

Mergens, and Lamb’s Chapel. One can imagine that some

visitor to the school buildings in Lamb’s Chapel, or to the

university campus in Widmar, might happen upon a reli-

gious group using the facilities and, seeing only that

meeting, wrongly jump to the conclusion that it was

officially endorsed by the school. Or some uninformed

observer passing Capitol Square might see a speaker

holding up a Bible at a podium in front of the capitol and

wrongly jump to the conclusion that it was the governor

delivering a sermon, rather than a local minister.!°

Petitioners are also highly selective in suggesting

facts as to which the “reasonable” observer will be igno-

rant. The en banc Sixth Circuit, in a case where plaintiffs

challenged a private group’s display of a menorah, has

cataloged the methods by which opponents of equal

access manipulate the “objective observer” test - methods

that Petitioners here also use. See Americans United for

Separation of Church and State v. City of Grand Rapids, 980

F.2d 1538, 1550 (6th Cir. 1992) (en banc). For example,

10 Indeed, as the en banc Sixth Circuit has noted in another

case, opponents of displays might argue that a display accom-

panied by an actual service or ritual conveys more endorsement

than a display standing alone. Americans United for Separation of

Church and State v. City of Grand Rapids, 980 F.2d 1538, 1549 (6th

Cir. 1992) (en banc) (holding that unattended private display of

menorah in public square need not be suppressed to avoid

Establishment Clause violation). The Sixth Circuit opinion in

the current case relies heavily on the en banc decision in Ameri-

cans United. Pet. A8-A9.

18

“(t]he plaintiffs’ observer does not follow local politics or

controversies, or read the newspapers where this issue

has been discussed,” or else he might read that the gov-

ernment has specifically disclaimed any endorsement of

the display; “however, the plaintiffs’ observer does go

downtown where the menorah can be seen.” Id. “Further,

the plaintiffs’ observer must come close enough to realize

that there are no persons associated with the menorah” -

since (under Petitioners’ argument) it is only when the

display is unattended that the observer assumes it has

been erected by the state. “However, the plaintiffs’

observer must not come close enough to read the sign” on

the display disclaiming state endorsement, for the sign

would dispel any misperceptions. Id.'!! As the Sixth Cir-

cuit aptly recognized, such manipulation shows why

the reasonable observer used in the resolution of

these cases must be an observer in possession of

all the relevant facts. Once it is admitted that the

observer is ignorant in some areas, there is no

objective means of deciding who gets to make

up the components of the observer’s knowl-

edge.

Americans United, 980 F.2d at 1550 n.7.

It is not just an abstract exercise to require that the

“reasonable” observer be held to inquire about and know

‘1 Amicus does not mean to suggest that a disclaimer sign is

indispensable to dispel all reasonable perceptions of endorse-

ment. In most cases, there are additional sources (the well-

known history of the forum’s use, media, other citizens) that

provide information such as the private funding of the display

and the open nature of the forum. However, a disclaimer on the

display should remove even the slightest bit of doubt.

19

such facts. Incorporating such facts into the analysis is

crucial to ensuring that the goal of preventing establish-

ment does not unjustifiably silence religious speech.

Pointing to the ignorance of some observers, Petitioners

and other opponents of equal access demand a rule to

ensure that no one could possibly perceive, even through

ignorance or stubbornness, a state endorsement of reli-

gion. But such a prophylactic rule guards against per-

ceived support for religion by engaging in actual

suppression of religion. It “demonstrate[s] not neutrality

but hostility toward religion” (Mergens, 496 U.S. at 248

(O’Connor, J.)). As one scholar has noted:

[A] solution in which one side bears all of

the risk of [citizen] misunderstanding while the

other side bears none is not a neutral solution.

The risk of misunderstanding must be shared. It

is best shared by facially neutral rules in which

the government takes no position on religion in

its own speech and treats private religious

speech exactly like private secular speech.

Whatever the risk that some [citizens] will per-

ceive an open forum as an endorsement of

groups that participate, that risk is far out-

weighed by the actual and apparent hostility in

a rule that allows [citizens] to talk about any-

thing except religion.

Laycock, Douglas, Equal Access and Moments of Silence: The

Equal Status of Religious Speech by Private Speakers, 81 Nw.

U. L. Rev. 1, 20 (1986).

Indeed, Petitioners and their supporting amici explic-

itly minimize the interests in free religious speech and

exercise here. Some amici suggest, for example, that

“there is no need to place sacred symbols of any faith in

20

public areas” because “{t]here is abundant private prop-

erty available for [such public display[s],” such as

churches and private homes. Brief of Americans United et

al. at 2. But it is completely inconsistent with the First

Amendment to suggest that a viewpoint may be excluded

from a public forum because it could be expressed else-

where. Like the streets that were the subject of Schneider

v. State, 308 U.S. 147 (1939), the public parks and squares

are “natural and proper places for the dissemination of

information and opinion; and one is not to have the

exercise of his liberty of expression in appropriate places

abridged on the plea that it may be exercised in some

other piace.” Id. at 163; see also Edwards v. South Carolina,

372 U.S. 229, 235 (1963). Contrary to the assertions of

amici (Brief of Americans United et al. at 2), the reason

religious citizens go to the state capitol grounds to speak

is not necessarily to receive “official endorsement.” Like

many other speakers, they simply want to express their

views at a place with a large audience, and to affirm that

their views are relevant to and should be considered in

public life.!?

12 In any event, the reason why a private speaker chooses

the place to speak or to speak at all is irrelevant. Under the

endorsement test, the issue is the government's intent or effect in

acting. See County of Allegheny, 492 U.S. at 593 (Establishment

Clause “ ‘precludes government from conveying or attempting to

convey a message’ ” of favoritism) (emphasis added) (quoting

Jaffree, 472 U.S. at 70 (O’Connor, J., concurring)).

21

D. Petitioners’ Novel “Subjective Observer” The-

ory Would Seriously Damage Both Religious

Liberty and the Institutional Integrity of the

Judiciary.

Petitioners would impose upon the courts “the oblig-

ation .. . to determine the nature of the message being

sent and received” by Petitioners’ “reasonable” observer.

(Pet. Br. 9) (emphasis added). As one amici describes its

position: “[I]t is not necessary that a reasonable observer

would perceive the governmental action as connoting

endorsement or disapproval, for reasonable people will

often differ; rather, the government has erred whenever a

reasonable person could perceive its action as connoting

endorsement or disapproval.” (Br. Amici Curiae Trumbull,

Connecticut, et al., 11-12) (original emphasis). Nor does

Petitioners’ test envision one prototypical reasonable

observer; instead any reasonable observer’s mispercep-

tion will trigger censorship of private religious speech. In

the words of another of Petitioners’ amici, “it is sufficient,

as we will emphasize again, that a “reasonable observer”

might draw the inference, or, indeed, that some portion of

the reasonable observers in the community might so

infer.” (Br. Amici Curiae American Jewish Congress and

Anti-Defamation League 4) (emphasis added in part).

They would make this case turn on the most foolish and

unreasonable of “reasonable” observers.

This novel, untested version of the “reasonable

observer” that Petitioners and their amici press upon this

Court is a deeply troubling one for a number of reasons.

At bottom, Petitioners urge this Court to substitute a

highly subjective “reasonable observer” for the objective

factfinder used as the model reasonable observer by

22

members of this Court in the past. For Petitioners, a

subjective “reasonable” observer’s misperception, rather

than factual reality, defines the limits of other private

citizens’ exercise of fundamental rights.

Of course, the immediate question raised by such an

overtly relativistic approach to constitutional decision-

making is why the allegedly “reasonable” observer's sub-

jective feeling, 1.e., that the government is endorsing

religious speech when it is not, is any more valid than the

next “reasonable” observer's subjective feeling, i.e., that

the government is not endorsing religious speech. Merely

asking the question reaffirms the commonsense approach

in which the reasonable observer is the objective fact-

finder — a person presumed to know all of the facts in the

situation and to understand the basic constitutional prin-

ciples that all citizens should know in a pluralistic

democracy. See, e.g., County of Allegheny v. ACLU, 492 U.S.

573, 632 (1989) (O’Connor, J., concurring) (reasonable

observer is well informed and evaluates in light of the

relevant history and context); Wallace v. Jaffree, 472 U.S.

38, 76, 83 (1985) (“objective observer, acquainted with the

text, legislative history, and implementation of the stat-

objective observer . . . is acquainted with Free

Exercise Clause and the values it promotes”); see also,

Kreisner v. City of San Diego, 988 F.2d 883, 892 (9th Cir.

1993); Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383,

1390 n.11; id., at 1396 (Anderson, J., concurring).

” af

ute;

But Petitioners prefer a reasonable observer who is

presumed to be ignorant rather than informed. For exam-

pte, a touchstone of our constitutional liberties is the

basic understanding that the Constitution is a restraint on

the government, not on citizens, and that the First

23

Amendment protects individual expression and activity.

But, in order to prevail, Petitioners must collapse the vital

distinction between private speech and government

speech, a distinction at the heart of the Constitution and

numerous decisions of this Court. See, e.g., Mergens, 496

U.S. at 250; Widmar, 454 U.S. at 271 n.9; Lamb’s Chapel, 113

S. Ct. at 2148; McDaniel v. Paty, 435 U.S. 618 (1978); Fowler

v. Rhode Island, 345 U.S. 67 (1953); Niemotko v. Maryland,

340 U.S. 268 (1951).

Unpredictability is the hallmark of a subjective test.

When the reasonable observer is presumed to recognize

the distinction between private speech and governmental

speech, the religious speaker has a fairly good sense

whether his or her speech is permissible in a public

location. But the subjective test introduces a “roving cen-

sor” into the equation, in the form of the subjective

“reasonable” observer. The religious speaker can no

longer rely on the objective fact that his or her speech is

private but must worry whether any passerby might, out

of ignorance or malice, claim to misunderstand and

attribute his or her speech to the government. The reli-

gious speaker, not the uninformed censor, pays for the

censor’s mistake.

Furthermore, the subjective test greatly increases the

likelihood that the censor will not be an uninformed

private citizen at all but a government bureaucrat. If this

Court were to adopt Petitioners’ test, numerous public

officials across the country would immediately use the

new test to deny religious speakers access to traditional

public fora, as well as limited public fora and nonpublic

fora. Most of the decisions regarding access for religious

speakers to public property are not made by judges but

24

by local and state officials, some of whom are not predis-

posed to treat religious persons in a neutral manner. See,

e.g., Church of the Lukumi Babalu Aye v. City of Hialeah, 113

S. Ct. 2217, 2222 (1993) (“laws in question were enacted

by officials who did not understand, failed to perceive, or

chose to ignore the fact that their official actions violated

the Nation’s essential commitment to religious freedom”);

Larson v. Valente, 456 U.S. 228, 254 (1982) (law “drafted

with the explicit intention of including particular denom-

inations and excluding others”); Fowler, 345 U.S. at 527

(local officials denied religious group access to park

because of hostility toward their particular religious

beliefs); Niemotko, 340 U.S. at 272-273 (same). The subjec-

tive observer test gives any “village tyrants,” West Vir-

ginia Bd. of Educ. v. Barnette, 319 U.S. 624, 637-638 (1943), a

virtually unchallengable rationale tor denying permits to

religious speakers.

Indeed, in the final analysis, the subjective observer

test is not a test at all, for it gives no definable standards

for determining constitutionality — other than the presup-

positions of the government decisionmaker. Cf. Coates v.

Cincinnati, 402 U.S. 611, 614 (1971) (ordinance that pro-

hibited conduct that was “annoying to persons passing

by” unconstitutionally vague because it subjects First

Amendment right to “an unascertainable standard”). For

over fifty years, this Court has condemned as unconstitu-

tional a licensing system that places unbridled discretion

in the hands of government bureaucrats to determine

which religious speakers may or may not speak. See, e.g.,

Cantwell v. Connecticut, 310 U.S. 296, 305-307 (1940). Peti-

tioners’ subjective observer theory is a thinly veiled

25

means of giving government officials arbitrary discretion

to discriminate against religious persons.

Nor does such unbridled discretion require that gov-

ernment officials be malicious toward the religious appli-

cant. Many government officials are not intentionally

hostile to religion, or to particular religions, but simply

wish to avoid any controversy and take the “easy way

[by] suppress[ing] private speech.” Hedges v. Wauconda

Community School Dist., 9 F.3d 1295, 1299 (7th Cir. 1993)

(holding unconstitutional school officials’ suppression of

students’ religious speech); see also, e.g., Lamb's Chapel,

113 S. Ct. at 2148; Congregation Lubavitch v. City of Cincin-

nati, 997 F.2d 1160 (6th Cir. 1993). Many government

officials still mistakenly believe that all religious speech

on public property is unconstitutional and view it as their

duty to prohibit any religious speech. Unfortunately, pub-

lic officials are often subconsciously influenced by their

own personal religious (or anti-religious) biases. Offi-

cials’ responses to requests for access may depend on

their “comfort with mainstream religious views and dis-

comfort with and perhaps hostility towards non-main-

stream, non-traditional religious messages.” Travis v.

Owego-Apalachin School Dist., 927 F.2d 688, 693 (2d Cir.

1991) (holding unconstitutional local officials’ denial of

access to evangelical Christian speaker). A primary func-

tion of both the Establishment and Free Exercise Clauses

is to protect citizens from the religious (or anti-religious)

biases of public officials, regardless of whether the offi-

cials are acting from malice, aversion to controversy, or

unexamined personal predilections.

Both the unpredictability and the potential for abuse

of discretion created by Petitioners’ new test would have

|

26

a dramatic chilling effect on the religious speech of pri-

vate citizens. Religious citizens must anticipate that each

attempt to engage in religious speech in a traditional

public forum may result in lengthy, and unpredictable,

litigation to determine whether some unidentified

observer could possibly fail to understand that their

speech is their own rather than the government's. Nor

will the religious citizen be able to respond effectively to

the bureaucrat who denies his or her permit to speak in

the traditional public forum on the unchallengeable basis

that the bureaucrat “just knows” that some unknown

person will mistakenly attribute her speech to the gov-

ernment.

Such a chilling effect becomes the quintessential

“heckler’s veto” warned of by numerous lower courts in

recent religious speech cases. Analogizing to the “hecklers’

veto,” the Sixth Circuit noted below, “We believe that the

[defendants’] argument presents a new threat to religious

speech in the concept of the ‘Ignoramus’s Veto.’ ” 30 F.3d

at 679, quoting Americans United, 980 F.2d at 1553. Similarly,

the Seventh Circuit has seen the parallel between the

subjective observer and the forbidden “heckler’s veto.”

See, e.g., Hedges, 9 F.3d at 1299-1300. See also Chabad-

Lubavitch of Georgia v. Miller, 5 F.3d 1383, 1390 n.11 (11th

Cir. 1993).

Petitioners’ proposed test is not only a disaster for

the liberties of religious citizens; it also threatens the

efficiency and credibility of the judiciary. First, its inad-

ministrability is apparent. In court, the religious speaker

must prove a negative argument that is impossible to

prove, 1.e., that no person who ever witnesses her expres-

sion will mistakenly attribute it to the government. How

27

is a citizen to prove that proposition? Must the religious

speaker depose every member of the community? Does

the “reasonable” observer include “children, the non-

English speaking, or the illiterate,” as Petitioners sug-

gest? (Pet. Br. 46). Given that Petitioners are also con-

cerned about tourists to Capitol Square, the potential

field of observers broadens to include the entire world.

(Pet. Br. 48).

Similarly, if the burden of proof rests on the govern-

ment, will the government have proved its case if only

one witness can be found to testify that she would misper-

ceive the speaker’s identity? As already noted, one of

Petitioners’ amici would find an Establishment Clause

violation if a single “reasonable” observer would have

such a misperception. Or would the government be

required to prove that at least 51% of the population

(whether of Columbus, Ohio, or the entire world) would

misunderstand the source of the speech? What propor-

tion of misperceiving observers is necessary to prove

unconstitutionality? Such litigation would be exceedingly

lengthy and expensive.

More importantly, the Petitioners’ test would reflect

adversely upon the integrity of the judiciary itself. The

prime function of the courts is to determine and uphold

in all cases their best judgment of what the law and the

facts actually are. But under Petitioners’ obtuse Establish-

ment Clause jurisprudence, the courts would treat as an

Establishment Clause violation that which even Peti-

tioners admit would not constitute a true violation of the

Establishment Clause. The courts can ill-afford to squan-

der their institutional reputation for integrity by adopting

Petitioners’ theory. The judiciary comes under enough

28

attack for enforcing the Establishment Clause in cases in

which genuine violations have occurred, without enforc-

ing the Establishment Clause to censor private citizens’

religious speech in situations in which all knowledgeable

persons understand that a violation of the Establishment

Clause has not occurred.

As precedent proves, the only safe harbor for the

courts and religious liberty is true neutrality. The model

applied for the reasonable observer must be an objective,

knowledgeable, logical citizen, who understands the fun-

damental distinction between private speech and govern-

mental speech — that private religious speech is protected

by the First Amendment and governmental religious

speech is circumscribed by the First Amendment. The

objective observer knows the relevant circumstances of a

case and applies logic, rather than subjective feelings, to

evaluate those facts. This objective observer understands

that the government is treating religion in the neutral

manner commanded by the Constitution when it allows

private religious speech in a traditional public forum.

This reasonable observer understands that the remedy for

disagreeable speech is not suppression of the other per-

son’s speech but adding her own voice to the public

debate.

CONCLUSION

In this case, Petitioners seek this Court’s imprimatur

on its content-based suppression of private speech in a

traditional public forum. They propose that fundamental

rights turn on the feelings of hypothetical third party

29

observers — observers who are ignorant enough to make

false assumptions and so uninterested that they do not

pursue truth. Protecting this class of ignorant and apa-

thetic hypothetical observers does not justify the actual

discriminatory suppression of religious speech. The judg-

ment of the court of appeals should be affirmed.

Respectfully submitted,

Steven T. McCFARLAND* THOMAS C. BERG

SAMUEL B. Casey 800 Lakeshore Drive

Grecory S. BaAyYLor Birmingham, AL 35229-7021

KIMBERLEE Woop Corsy (205) 870-2774

Center for Law and

Religious Freedom

Christian Legal Society

4208 Evergreen Lane

Suite 222

Annandale, VA 22003

(703) 642-1070

DoucGLas LAYCOCK

727 East 26th Street

Austin, TX 78705-3299

(512) 471-3275

*Counsel of Record

March 23, 1995

App. 1

APPENDIX

INTEREST OF AMICUS CURIAE

Amicus’ participation in this case reflects its commit-

ment to freedom for all religious views, and not any

sympathy for the views espoused by the Ku Klux Klan.

Amicus, an organization of Christians in the legal profes-

sion, deplores the ways in which the Klan has historically

misused the symbols of Christianity to communicate mes-

sages of hate and to accompany both threatened and

actual violence. We agree with the district court’s senti-

ment (Pet. App. A26) that “[iJt is ironic and in the most

literal sense diabolical that [the Klan] would seek to

publicly display the symbol of Jesus of Nazareth,” whom

amicus’ members regard as the Prince of Peace.

For over a century, the Klan victimized our black

brothers and sisters. It would be doubly tragic if their

activities today were to cause those same victims, as well

as all religious citizens, to lose their right to communicate

religious messages in a public forum. As explained in the

Introduction to our arguments, supra, the issues in this

case have no reference to the particular beliefs of the Ku

Klux Klan. Petitioners’ arguments for censoring the dis-

play of the cross apply equally to any unattended reli-

gious symbol in a public forum, barring such symbols

based on unrealistic fears that the government might be

seen as endorsing the religious message because it per-

mits it. Because that argument undercuts the very foun-

dations of free religious speech, this Court must reject it.

The Christian Legal Society, founded in 1961, is a

nonprofit ecumenical professional association of 4,700

App. 2

Christian attorneys, judges, law students and law pro-

fessors with chapters in every state and at 85 law schools.

Since 1975, the Society’s legal advocacy and information

arm, the Center for Law and Religious Freedom, has

advocated the protection of religious speech and exercise

in this Court and in state and federal courts throughout

the nation.

Using a network of volunteer attorneys and law pro-

fessors, the Center provides accurate information to the

general public and the political branches regarding the

law pertaining to religious exercise. In addition, the CLS

Center has filed briefs amici curiae joined by many reli-

gious denominations and civil liberties groups in vir-

tually every case before the U.S. Supreme Court

involving church-state relations since 1980.

The Society is committed to religious liberty because

the founding instrument of this nation acknowledges as a

“self-evident truth” that all persons are divinely

endowed with rights that no government may abridge

nor any citizen waive. Declaration of Independence

(1776). Among such inalienable rights are those enumer-

ated in (but not conferred by) the First Amendment, the

first and foremost of which is religious liberty. The right

sought to be upheld here inheres in all persons by virtue

of its endowment by the Creator, Who is acknowledged

in the Declaration. It is also a “constitutional right,” but

only in the sense that it is recognized in and protected by

the U.S. Constitution. Because the source of religious

liberty, according to our nation’s charter, is the Creator,

not a constitutional amendment, statute or executive

order, it is not merely one of many policy interests to be

weighed against others by any of the several branches of

App. 3

state or federal government. Rather, it is foundational to

the framers’ notion of human freedom. The State has no

higher duty than to protect inviolate its full and free

exercise. Hence, the unequivocal and non-negotiable pro-

hibition attached to this, our First Freedom is “Congress

af

shall make no law... .

The CLS Center’s national membership, two decades

of experience, and professional resources enable it to

speak with authority upon religious expression.