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

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No. 94-780

In The

Supreme Court of the United Rt oe

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October Term, 1994

CAPITOL SQUARE AND ADVISORY BOARD, RONALD T.

KELLER, DANIEL SHELLENBARGER and OHIO

SENATOR RICHARD T. FINAN,

Petitioners,

VS.

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

BRIEF AMICUS CURIAE OF THE TOWN OF TRUMBULL,

CONNECTICUT AND THE CONNECTICUT CIVIL

LIBERTIES UNION FOUNDATION

IN SUPPORT OF PETITIONERS

EMANUEL MARGOLIS ARTHUR A. HILLER*

WOFSEY, ROSEN, KWESKIN Town Attorney

& KURIANSKY Town of Trumbull, Connecticut

600 Summer Street 815 Main Street, Suite 202

Stamford, CT 06901 Bridgeport, CT 06604

(203) 327-2300 (203) 335-1183

MARTIN B. MARGULIES

Quinnipiac College School

of Law

303 University Avenue

Bridgeport, CT 06604-5769

(203) 576-4121

Counsel for Amicus Curiae

Connecticut Civil Liberties

Union Foundation

Counsel for Amicus Curiae

* Counsel of Record Town of Trumbull, Connecticut

6366

CAegeis' (800) 3 APPEAL + (800) 5 APPEAL + (800) BRIEF 21

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TABLE OF CONTENTS

Page

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I. The Sixth Circuit erred by categorically

subordinating the Establishment Clause to the

Speech Clause instead of striking a careful

contextual balance between thetwo. ........... 4

II. On balance, the Establishment Clause forbids the

display of solitary, unattended religious symbols

— even privately sponsored ones — in public

forums that abut core government buildings. .... 6

A. A Speaker Has No Expressive Interest In

Displaying an Unattended, As Opposed To an

PEP TT COCO eT TTT 7

B. The Endorsement Concerns Which This

Court Should Balance Against the Speaker’s

Minimal Expressive Interests Are Powerful

SI, dc dN 00 dhsuekies vadewens 11

EP TTT Corey er re ore rer rr ert 16

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Allegheny County v. Greater Pittsburgh ACLU, 492 U.S.

PUDERMEOD 664400666060 60kas bane 6, 10,11, 12,14

Burson v. Freeman, 503 U.S.__, 112 S. Ct. 1846 (1992) .. 5

Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383 (11th

ee SOD ok ra hcdkeengeeeenuene eee eee 12, 13

City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)

joneeeteatsusvds 6b0eesNkeen Renn 7,8

City of Ladue v. Gilleo, 514 U.S. __, 1148S. Ct. 2038 (1994) |

00sebeseuceceecénetenssaeeteekouwnnaenaenal 8

Clark v. Community For Creative Non-Violence, 468 U.S.

SPORE ocksnkacdevess cocks cueubadeseunnnes 7

Cohen v. California, 403 U.S.15(1971) ..........64.. 14

Cornelius v. NAACP Legal Defense and Educational Fund,

Rats, STS UB. FO CISEED ccvccccccescéccncesenes« 9

Doe v. Small, 964 F.2d 611 (7th Cir. 1992) ............. 12, 13

Employment Div., Ore. Dept. of Human Resources v. Smith,

SOOT SHR CRNOED occas cceuntsécacesusedeousam 5

Se es ee ees

=

iii

Contents

Page

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) ... 14

Flamer y. City of White Plains, 841 F. Supp. 1365

Secs cers cecscevcscesss.... 8

International Society For Krishna Consciousness v. Lee,

504U.S.__,112S.Ct.2701 ................... 5,9, 14, 15

Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir. 1989),

cert. denied, 496 U.S. 926 (1 Ce 8,12

Knights of Columbus No. 2961 et al. v. The Town of

Trumbull, Connecticut, et al., Civ. No. 3:94CV2143

(AHN) (D. Conn. Dec. 20, A ee 1,2, 10, 13

Lamb's Chapel v. Center Moriches Union Free School

District, 509U.S.__, 113 S.Ct. 2141 a 9,10

Lee v. Weisman, 504U.S.__, 112 S. Ct. 2649 (1992) .....

ee 5,12, 14, 15

Marsh v. Chambers, 463 U.S. 783 NS ee ss 14

McDonald v. Smith, 472 U.S. 479 a 3

Nebraska Press Association vy, Stuart, 427 U.S. 539 (1976)

Ee ee 5

Perry Education Assn. y, Perry Local Educators’ Assn.,

il rr 9

am ee ee, Sy ee

iv

Contents

Page

Pinette v. Capitol Square Review and Advisory Board, 30

PIRES CG ED cae ce kame deiesecdndinees 11

Pinette v. Capitol Square Review and Advisory Board, 844

FP. Supp. LIGZGS.D. CRO SGD) onc cccccccccceces 7,12, 13

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. __, 112 S. Ct. 2791 (1992) .......... _ 6

Prince v. Massachusetts, 321 U.S. 158 (1944) .......... 4

Regan v. Taxation With Representation of Washington, 461

ER Re ey ee ee ere err eee 10

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .......... 5

Rosenberger v. Rector and Visitors of the University of

Virginia, 18 F.3d 269 (4th Cir. 1994), cert. granted, 115

Bee ESN 4A SAK whe eeekds baceesbeesns 10, 13,14

School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985)

PNP PTET Try ee PTT Te Tee ECE TTT eT eye Tree 6

Simon and Schuster, Inc. v. New York State Crime Victims’

Board, 502 U.S. __, 112 S. Ct.501 (1991) ........... 5

Smith v. Albemarle County, 895 F.2d 953 (4th Cir.), cert.

GE, TE1 Bes POE fo bo wie ibceericcererces 12,13

PE, I, GIS OO oes kee cccccincecnsess 4

ee eee

Vv

Contents

Page

Widmar v. Vincent, 454 U.S.263(1981) .............. 13,14

United States Constitution Cited:

First iiailiesen Tee TT SL CTET TT ORE eT Cr 1,2, 4,5,9, 10, 13

Rule Cited:

Supreme Court Rule 37.5 ............cccccccccccees 1

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INTEREST OF AMICI

The Town of Trumbull, Connecticut (“the Town”), a political

subdivision of the State of Connecticut, is presently a defendant-

respondent in a closely similar lawsuit in which the plaintiffs —

having lost at the district and circuit court levels — have

petitioned this Court for certiorari. Knights of Columbus No.

2961 et al. v. The Town of Trumbull, Connecticut, et al., No. 94-

1241. The issue in Knights of Columbus is essentially the same as

the one at bar: namely, whether the First Amendment’s Speech

Clause requires, and the Amendment’s Establishment Clause

permits, a government agency to let a private entity display a

solitary, unattended religious symbol in a traditional public

forum that abuts a core government building, when the forum is

open to privately-sponsored unattended non-religious symbols.”

Thus, the outcome in the present case could have a significant

impact upon — and indeed could control — the outcome in

Knights of Columbus.

The Connecticut Civil Liberties Union Foundation

(“CCLUF”) is the litigative arm of the Connecticut Civil

Liberties Union, a state affiliate of the American Civil Liberties

1. Under Rule 37.5, it is not necessary for the parties to consent to the

filing of this Brief by the Town of Trumbull, as the Town is a subdivision of the

State of Connecticut and the Brief is submitted by its authorized law officer. As

to the Connecticut Civil Liberties Union Foundation, the Respondents’ blanket

consent to all amicus filings has been lodged with the Clerk’s office, and

Petitioners’ Counsel Andrew I. Sutter has represented to the amici that the

Petitioners’ consent will be lodged forthwith.

2. Indeed, Knights of Columbus presents this issue in even more pristine

form, because the Trumbull Town Hall Green — the situs of the controversy —

is not open to the display of any solitary unattended religious symbol; the

symbol that the plaintiffs wish to display (a creche) is a seasonal one; and the

plaintiffs do not allege that the Town denied permission to display the symbol

out of hostility to the sponsor’s political views. Given these factua!

differences, this Court could actually decide the present appeal without

reaching the certified issue.

2

Union, which is a national non-partisan organization of

approximately 250,000 members committed to protecting the

civil rights and liberties — and in particular the First Amendment

rights and liberties — of all persons. CCLUF has participated, as

direct counsel or amicus, in the litigation of numerous cases

involving speech and religion clause rights in Connecticut’s

federal and state courts, and appeared as amicus curiae in Knights

of Columbus, before the district court, in support of the Town.

CCLUr believes that, because public parks and streets are

traditionally and universally known to be public forums,

ordinarily there is no Establishment Clause violation when they

are used for activities or speech with a religious content.

However, CCLUF also believes that the placement of a solitary,

unattended religious symbol in a park adjacent to a core

government building is not an ordinary use, but rather suggests

official endorsement of the religious message, and that the Sixth

Circuit, by holding otherwise, gave insufficient weight to the

Establishment Clause values in the case. Accordingly, CCLUF

joins the Town of Trumbull in supporting the Petitioners and in

urging that the judgment be reversed.

STATEMENT OF THE CASE

The amici adopt the Statement of the Case in the Petitioners’

Petition For a Writ of Certiorari, pages 4 through 9.

SUMMARY OF ARGUMENT

The Sixth Circuit erred at the outset by applying a

categorical rule which elevates speech rights above non-

establishment rights. Since these rights stand — like all First

Amendment rights — on an equal footing with one another, the

court should have undertaken, instead, to strike a balance

between the two, giving close attention to context.

Had the Sixth Circuit applied such a balancing test, as it

ought to have done, the balance would have tilted, in this casc, in

ahaa terete

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3

the Petitioners’ favor. The Respondents’ expressive interests are

at best minimal, because the ability to leave a symbol unattended

merely “facilitates” the expression; it does not enhance the

symbol’s expressive content. Their expressive interests are

further diminished by the fact that there is no inherent right to

place an unattended symbol in any forum, even a traditional

public forum. Indeed, a speaker has no more right to display such

a symbol than to demand that the government subsidize his

expression with cash.

On the Establishment Clause side, the endorsement test,

which a majority of this Court has adopted in the past and which

the Court should use in this case, requires only that a reasonable

person be capable of inferring endorsement or disapproval from

the government’s actions; not that all reasonable persons would

necessarily do so. The very split among the Circuits, on the

question of whether accommodating unattended and solitary

religious displays in front of core government buildings violates

the Establishment Clause, suggests that the perception of

endorsement or disapproval is not unreasonable. The

endorsement concerns are exacerbated by the fact that most

unattended displays are likely to be (and indeed have been)

religious, and by the further fact that governmental

accommodation of unattended displays operates very much like a

cash subsidy. It is no answer to say that the unwilling viewer can

simply turn away, for the Establishment Clause’s unique

prohibition on religious speech lifts this burden from the viewer’s

shoulders. Finally, it is incorrect to argue that unattended displays

are less likely to convey endorsement than are time-honored

practices such as legislative prayer and presidential

proclamations of prayer; on the contrary, such displays are far

likelier to do so.

CEE

4

ARGUMENT

I.

THE SIXTH CIRCUIT ERRED BY CATEGORICALLY

SUBORDINATING THE ESTABLISHMENT CLAUSE TO

THE SPEECH CLAUSE INSTEAD OF STRIKING A

CAREFUL CONTEXTUAL BALANCE BETWEEN THE

TWO.

The Sixth Circuit’s error originates in its adoption of a

categorical rule which assumes, in essence, that speech values

trump non-establishment ones on all public forum property. This

assumption is incorrect. Though First Amendment rights as a

whole occupy a “preferred position” in relation to other

constitutional rights, no single First Amendment right is

“preferred” to any or all of the rest.

[It] may be doubted that any of the great

liberties insured by the First Amendment can

be given higher place than the others. All have

preferred position in our basic scheme.

Schneider v. State, 308 U.S. 147; Cantwell v.

Connecticut, 310 U.S. 296. All are

interwoven there together. Differences there

are, in them and in the modes appropriate for

their exercise. But they have unity in the

charter’s prime place because they have unity

in their human sources and functionings.

Wallace v. Jaffree, 472 U.S. 38, 50 n.35, quoting Prince v.

Massachusetts, 321 U.S. 158, 164 (1944) (quotation marks

omitted). On the same page, Wallace explains the “unity” as

follows: “the individual’s freedom of conscience [is] the central

liberty that unifies the various Clauses in the First Amendment.”

i iain

2

Id. In other words, the Establishment Clause, no less than the

speech clause, serves to protect society’s “marginal voices.”

International Society For Krishna Consciousness v. Lee, 504

U.S.__, 112 S. Ct. 2701, 2720 (Kennedy, J., concurring).’

Once it is understood that all First Amendment rights stand

on the same footing, it follows that the proper course, when they

collide, is not to subordinate one to the other. Rather, courts

should strike careful balances, with close attention to context.

Indeed, this Court has called for fact-sensitive balancing even

when First Amendment speech rights clash with non-First

Amendment rights. See, Roberts v. U.S. Jaycees, 468 U.S. 609,

623 (1984); Nebraska Press Association v. Stuart, 427 U.S. 539,

561, 570 (1976); Simon and Schuster, Inc. v. New York State

Crime Victims’ Board, 502 U.S. ___, 112 S. Ct. 501, 514 (1991)

(Kennedy, J., concurring). Such balancing is all the more

imperative, therefore, when First Amendment rights clash with

one another. Burson v. Freeman, 503 U.S. __, 112 S. Ct. 1846,

1859 (1992) (Kennedy, J., concurring) (speech versus voting

rights).‘

The Sixth Circuit’s categorical approach is thus in error. In

the remainder of this Brief, the amici will show that if the court

had balanced speech and non-establishment rights, as it ought to

have done, it would have ruled in the Petitioners’ favor.

3. For other decisions harmonizing, and thereby equating, the First

Amendment’s various clauses, see Employment Div., Ore. Dept. of Human

Resources v. Smith, 494 U.S. 872, 886 n.3 (1990) (Speech and Free Exercise

Clauses); McDonald v. Smith, 472 U.S. 479, 482 (1985) (Speech and Petition

Clauses).

4. As a general matter, moreover, Establishment Clause jurisprudence

“is necessarily one of line-drawing,” Lee v. Weisman, 504U.S.___, 112 S. Ct.

2649, 2661 (1992) — a process which is the direct antithesis of the categorical

technique which the Sixth Circuit embraced.

6

II.

ON BALANCE, THE ESTABLISHMENT CLAUSE

FORBIDS THE DISPLAY OF SOLITARY,

UNATTENDED RELIGIOUS SYMBOLS — EVEN

PRIVATELY SPONSORED ONES — IN PUBLIC

FORUMS THAT ABUT CORE GOVERNMENT

BUILDINGS.

This section of the Brief will apply the balancing process

which the case requires against the backdrop of the endorsement

test which a majority of this Court used in School Dist. of Grand

Rapids v. Ball, 473 U.S. 373, 389-92 (1985), and again in

Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573,

592-94 (1989). For the most part the amici will leave to the

Petitioners and other amici — e.g. Americans United For

Separation of Church and State — the task of explaining the

reasons (including but not limited to stare decisis) why that test is

the proper one, especially in cases involving the public display of

religious symbols.°

In Part 1 of the Section, the amici will show that a speaker’s

expressive interest in displaying an unattended, as opposed to an

attended, symbol is minimal to non-existent. In Part 2, they will

show that the countervailing endorsement concerns, on the

Establishment Clause side of the equation, are powerful and

overriding.

5. “As a general rule, the principle of stare decisis directs us to adhere

not only to the holdings of our prior cases, but also to their explications of the

governing rules of law.” Allegheny County, 492 U.S. at 668 (Kennedy, J.,

concurring). Accord, Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S.___, 112 S. Ct. 2791, 2808-09 (1992).

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7

A. A Speaker Has No Expressive Interest In Displaying an

Unattended, As Opposed To an Attended, Symbol.

A speaker simply has no expressive interest in displaying an

unattended, as opposed to an attended, symbol. Rather, the only

interest is “facilitative.” Clark v. Community For Creative Non-

Violence, 468 U.S. 288, 296 (1984). Leaving the symbol

unattended makes it easier, more convenient, and more

comfortable to display the symbol, especially overnight or in

inclement weather. But it does not enhance the symbol’s

expressive content, any more than sleeping overnight at the site of

the demonstration enhanced the expressive content in Clark. As

Clark squarely holds, this Court attaches little or no weight to a

merely “facilitative” interest in a particular manner of

expression.

Indeed, the absence of a live speaker, in the present case,

could actually detract from the message that the symbol’s

sponsors seek to convey, which is that they themselves — not

government officials — are “expressing respect for the holiday

season and [asserting] the right of all religious views to be heard.”

Pinette v. Capitol Square Review and Advisory Board, 844 F.

Supp. 1182, 1183-84 (S.D. Ohio 1993) (Finding of Fact no. 11).

By suggesting government sponsorship, an unattended religious

symbol next to a core government building obscures and distorts

that message.

Because the expressive benefits of unattended symbolic

speech are so marginal, there is no inherent right to display such

symbols even in traditional public fora. That is the clear import of

City Council v. Taxpayers For Vincent, 466 U.S. 789 (1984),

where this Court upheld an ordinance that banned the posting of

Signs on public property. Though the opinion observed that utility

poles (where the speakers wished to display their signs) were

non-fora, id. at 814, it is quite evident that the ban would have

survived time, place and manner analysis even if the Court had

8

characterized the forum as consisting of the municipal streets and

sidewalks where the poles stood. Jd. at 813-15.° The absence of

any inherent right to display unattended exhibits, even in

traditional public fora, has three distinct consequences that are

germane to this lawsuit.

First: it is further evidence that the speaker’s interests are of

little or no weight.

Second: because one may erect unattended displays only

when the government voluntarily allows such displays, the

appropriate analysis in this case is really that of the non-forum or

possibly the designated forum, even though the situs is a

traditional forum for purposes of live speech.’ The non-forum

methodology is probably more appropriate, for while the

opinions below mention some instances in which the situs

6. The speaker’s interests in Vincent were actually much stronger than in

the case at bar. For one thing, the signs in that case comprised pure speech, not

symbolic; for another, the City, by banning such signs, at least arguably closed

down a “discrete medium of expression.” 466 U.S. at 815 n.32 In City of Ladue

v. Gilleo, 514U.S.___, 114 S. Ct. 2038, 2045 (1994), this Court only last term

held such closures suspect.

7. Interestingly, a United States district judge, in Flamer v. City of White

Plains, 841 F. Supp. 1365, 1374 (S.D.N.Y. 1993), criticized the Second Circuit

for having “conflate(d]” so-called limited forums with traditional forums in

Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir. 1989), cert. denied, 496

U.S. 926 (1990) — the decision which committed that Circuit to the view that

unattended solitary religious displays which stand next to core government

buildings invariably violate the Establishment Clause. The “confla(tion]”

occurred, according to Flamer, because Kaplan, though it did not use limited

forum vocabulary, nevertheless focused on whether the municipal defendant

had opened its Town Hall park to the display of unattended symbols. Indeed

Kaplan “conflate[d]” the two forums — but the “confla[tion]” does not reflect

error, ambiguity or confusion on Kaplan’s part. Rather, it recognizes that a

traditional forum, which is open by right only to live speakers, may be further

opened, by voluntary government action, to additional speech uses.

9

accommodated unattended exhibits, 844 F. Supp. at 1184,

Finding of Fact no. 13, those instances seem too few and too

isolated to show that the Petitioners have intentionally

“designated” the property for such uses. See, Cornelius v. NAACP

Legal Defense and Educational Fund, Inc., 473 U.S. 790, 802

(1985); Perry Education Assn. v. Perry Local Educators’ Assn.,

460 U.S. 37, 47-8 (1983).* It is ultimately unnecessary, however,

for the amici to assign one label or the other, or to answer the

unresolved question of whether the government may “limit” a

designation to as few or as many topics as the government wishes.

See, Lamb’s Chapel v. Center Moriches Union Free School

District, 509 U.S. __, 113 S. Ct. 2141, 2146 (1993). What

matters for present purposes is that, under either analysis, this

Court’s cases accord considerable deference to governmental

decisions as to what voluntary expressive uses the government is

willing to countenance, provided that the decisions are rational

and viewpoint neutral. Lamb’s Chapel, 113 S. Ct. at 2147;

International Society For Krishna Consciousness v. Lee, 112 S.

Ct. at 2705-06. That deference, in combination with the low

incremental value of unattended symbolic speech and the

endorsement concerns which the amici will discuss below,

8. In fact, the only arguably unattended “expressive” symbols to appear

on the property, other than religious symbols, were a United Way campaign

thermometer and a Christmas tree (assuming the latter to have been privately

rather than government-sponsored). 844 F. Supp. at 1184, Finding of Fact no.

13. As for the “craftsmen’s booths and displays” which the Finding describes,

these necessarily would have been attended much of the time, and in any event

do not appear to have been “expressive” in the First Amendment sense of the

term. This sparse history no only militates against any suggestion that the

Petitioners have opened the property to general use by sponsors of unattended

symbols but — because the few such symbols that have appeared have been

predominantly religious — raises endorsement concerns which the amici will

discuss in Part 2 of this Section.

10

should support the Petitioners’ refusal to allow the Respondents’

cross.’

Third: since the government is under no constitutional duty

to countenance unattended expressive symbols on its property, if

it does make property available for the display of such symbols,

its decision to do so is really in the nature of a subsidy. This Court,

of course, is considering right now the Speech and Establishment

Clause ramifications of the government’s refusal to extend

generally available subsidies to religious speech. Rosenberger v.

Rector and Visitors of the University of Virginia, 18 F.3d 269 (4th

Cir. 1994), cert. granted, 115 S. Ct. 417 (1994). In the next

subsection of this Brief, the amici will discuss the Establishment

Clause implications of that issue in more detail. On the speech

side, suffice it to say that because the First Amendment creates no

entitlement to government subsidies, see, Regan v. Taxation With

Representation of Washington, 461 U.S. 540 (1983), the

Respondents’ speech interests, once again, are constitutionally

insignificant.

For all of these reasons, this Court should attach little if any

weight to Respondents’ desire to facilitate their symbolic

religious expression (which the First Amendment assuredly

9. The display of a menorah on the same property is at first glance

troubling, since it suggests viewpoint discrimination within a genre of

permitted speech. See, Lamb’s Chapel, 113 S. Ct. at 2147-48. Conjoined as it

was with a Christmas tree, however, 30 F.3d at 676, the menorah may well have

conformed to the requirements in Allegheny County. That would differentiate

it, in genre, from the cross. If, on the other hand, it did not conform to

Allegheny, then it, no less than the cross, violated the Establishment Clause, in

which case this Court should not remedy a past constitutional wrong by

countenancing another. This problem, incidentally, does not exist in the Town

of Trumbull’s Knights of Columbus case, for there the property is closed to all

unattended religious symbols. Knights of Columbus Council No. 2961 v. The

Town of Trumbull, Connecticut et al., Civ. No. 3:94CV2143(AHN) (D. Conn.

Dec. 20, 1994), Memorandum of Decision at 5, Finding of Fact no. 16.

Sen Rt ARNE EA Dnt Me) akin sated J SAB BrP

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11

would protect, and which the Petitioners presumably would

accommodate, if a live sponsor were present) by leaving the

symbol unattended. The amici will now show that this desire,

besides carrying little or no weight, creates Establishment Clause

(i.e., endorsement) concerns of the highest order.

B. The Endorsement Concerns Which This Court Should

Balance Against the Speaker’s Minimal Expressive

Interests Are Powerful and Overriding.

The Sixth Circuit, and apparently the Respondents, take the

position that a privately-sponsored religious symbol in a public

forum can never convey a message of official endorsement of

religion. This is because, in their view, a reasonable person who

sees the display will understand that the government maintains an

open-forum policy and that the display therefore represents only

the opinions of the private sponsor. Pinette v. Capitol Square

Review and Advisory Board, 30 F.3d 675, 679 (6th Cir. 1994).

This facile dismissal of endorsement concerns misperceives what

endorsement means.

According to the endorsement test, the Establishment Clause

does not merely prohibit government from taking “a position on

questions of religious belief,” Allegheny County, 492 U.S. at 593-

94; it prohibits government from even “appearing” to do so. Id.

(emphasis added, citation omitted). Moreover, the key

determinant of whether the appearance arises is whether “the

challenged governmental action is sufficiently likely to be

perceived by adherents of the controlling denominations as an

endorsement, and by the nonadherents as a disapproval, of their

individual religious choices,” and not whether the perception is

inevitable or indisputable. /d. at 597 (citation and internal quotes

omitted, emphasis added). Thus, it is not necessary that a

reasonable observer would perceive the governmental aciion as

connoting endorsement or disapproval, for reasonable people

will often differ; rather, the government has erred whenever a

12

reasonable person could perceive its action as connoting

endorsement or disapproval. /d. at 642-43 (concurring opinion of

Justices Brennan, Marshall and Stevens). Cf., Lee v. Weisman,

112 S. Ct. at 2658, which agrees that — whether the test be

endorsement or coercion — the controlling issue is what a

reasonable person could perceive and not what she necessarily

would perceive.

The Fourth and Second Circuits have squarely held, and the

Seventh has intimated, that solitary, unattended, privately-

sponsored religious symbols in front of core government

buildings — with or without accompanying disclaimers —

appear (or at least could reasonably be seen to appear) to carry

government approval. Smith v. Albemarle County, 895 F.2d 953

(4th Cir.), cert. denied, 111 S. Ct. 74 (1990); Kaplan v. City of

Burlington, 891 F.2d 1024 (2d Cir. 1989), cert. denied, 496 U.S.

926 (1990); Doe v. Small, 964 F.2d 611, 619 (7th Cir. 1992) (en

banc). To be sure, two Circuits have found no endorsement: the

Sixth, in its opinion below, and Eleventh, in Chabad-Lubavitch of

Georgia v. Miller, 5 F.3d 1383 (11th Cir. 1993) (en banc). But this

very division among the Circuits suggests that reasonable people

could indeed perceive endorsement. Otherwise, one must ascribe

to three federal circuits, as well as to the successful litigants, not

merely misperception, but utter unreason.

The endorsement concerns in this case are magnified by two

factors. One is the likelihood that the great majority of unattended

expressive symbols in public fora will, in fact, be religious: a

likelihood that the record below confirms. The district court

mentions just two privately-sponsored unattended displays

besides the menorah and the creche: a United Way thermometer

and craft booths at an art festival. Pinette v. Capitol Square

Review and Advisory Bd., 844 F. Supp. 1182, 1184 (S.D. Ohio

1993), Finding of Fact no. 13. Of these, only the thermometer is

even arguably expressive. Pinette is not unique in this regard;

13

cases from other circuits reveal similar patterns.'° In Widmar v.

Vincent, 454 U.S. 263, 277 (1981), the Court qualified its holding

by intimating that the outcome would have been different had

there been “empirical evidence that religious groups will

dominate ... [the] open forum” — and Widmar involved live

speakers, whose presence mitigated endorsement concerns at

least to some extent. The case histories in the Sixth Circuit and

elsewhere contain ample “empirical evidence” of religious

domination to satisfy the Widmar exception.

The endorsement dangers are exacerbated, in Pinette, by a

second factor: namely, that (as the amici have demonstrated

above) governmental accommodation of semi-permanent

unattended exhibits operates very much like a cash subsidy. The

issue in this case, therefore, begins to resemble the one in

Rosenberger, supra: that is, when the government voluntarily

subsidizes non-religious activity, does the Speech Clause require

it, or does the Establishment Clause forbid it, to subsidize

religious activity as well? But the Establishment Clause

concerns, in Pinette, are far greater than in Rosenberger. For one

thing, there are manifest differences between a journal and a

purely religious symbol, because a journal is likelier to convey

diffuse messages. For another, the journal’s readers may not even

be aware of the subsidy, whereas when unattended and solitary

religious symbols appear on government property in close

10. In the amici’s own case, Knights of Columbus, Civ. No. 3:94-

CV2143 (AHN), no unattended symbols had ever been displayed on the

property, as far as the record reveals. Memorandum of Decision at 11, Finding

of Fact no. 11. The same was true in Doe v. Small, 964 F.2d at 614. In Smith v.

Albemarle County, the only unattended display, besides the religious one, had

been a United Way thermometer. 895 F.2d at 955. In Chabad-Lubavitch of

Georgia v. Miller, 5 F.3d at 1383, the court mentions just three other unattended

exhibits: an Indian hut during Indian Heritage Week, a 35-flag display during

International Week, and a 41-poster exhibit by the Atlanta Jewish Federation;

of these, only the latter appears to have been “expressive” in the First

Amendment sense.

14

proximity to core government buildings, the church-state

relationship is apparent for all to see. And of course, there were

many more non-religious uses in Rosenberger than there are, or

are ever likely to be, in the case at bar. 18 F.3d at 271; see, Widmar,

454 U.S. at 274.

It is no answer to say, as some Justices have argued, that

those who do not want to see religious display can simply turn

away from it. Allegheny County, 492 U.S. at 664 (dissenting

opinion of Justice Kennedy, joined by the Chief Justice and

Justices White and Scalia). That, to be sure, is the proper answer

to those who take umbrage at non-religious expressive displays

on government property. Erznoznik v. City of Jacksonville, 422

U.S. 205, 210-11 (1975); Cohen v. California, 403 U.S. 15, 21

(1971). But the balance between speech rights and unwilling

audience rights is unaffected, in those cases, by the Establishment

Clause’s unique prohibition on any religious speech that can

reasonably be imputed to the government. This unique

prohibition, and its underlying solicitude for impacts on

“marginal voices,” International Society For Krishna

Consciousness v. Lee, 112 S. Ct. at 2720 (Kennedy, J.,

concurring), alters the balance, for once the non-adherent

receives the endorsement message, that message is not soon

forgotten.

Some Justices have also questioned the endorsement test

itself, on the ground that the test, if honestly applied, would

require the Court to invalidate long-accepted practices such as

legislative prayer, Marsh v. Chambers, 463 U.S. 783 (1983), and

presidential prayer proclamations. Allegheny County, 492 U.S. at

670-74 (dissenting opinion of Justice Kennedy, joined by the

Chief Justice and Justices White and Scalia); Lee v. Weisman, 112

S. Ct. at 2679-80 (dissenting opinion of Justice Scalia, joined by

the Chief Justice and Justices White and Thomas). But in truth the

prayers and proclamations are far more innocuous, for they

15

involve live speakers, are easily avoidable, and in any event are

short-lived; they are, on these accounts, de minimis. Lee vy.

Weisman, 112 S. Ct. at 2670 n.3, 2678 (concurring opinion of

Justice Souter, joined by Justices Stevens and O’Connor).

In contrast, religious symbols on government property are

powerful, unavoidable, and semi-permanent. When such

symbols are unattended, and stand in close proximity to

government buildings, they have a particular propensity to

Suggest a “ ‘symbolic union of church and state,’” Lee vy,

Weisman, 112 S. Ct. at 2672 (concurring opinion of Justice

Souter, joined by Justices Stevens and O’Connor), and thereby to

alienate and _ intimidate society’s “marginal voices.”

International Society For Krishna Consciousness v. Lee, 112 S.

Ct. at 2720 (Kennedy, J., concurring). If the private exhibitors of

these symbols truly do not wish to convey such a message — if

they desire, instead, that their religious expression be perceived

as their own — then the absence of a live sponsor in no way

enhances that expression and indeed can obscure and distort it.

See, Section IV-B-1, supra. And if the exhibitors do wish to

convey such a message, the short answer is that this is not the sort

of message which the Establishment Clause tolerates. Lee vy.

Weisman, 112 S. Ct. at 2678 (concurring opinion of Justice

Souter, joined by Justices Stevens and O’Connor).

In sum, the speech rights which the speaker asserts in this

Case are marginal to nil, and there is Significant potential for

creating the appearance that the government is endorsing

religion. In the circumstances, therefore, the speech values must

yield to the non-establishment ones and the display should be

disallowed.

16 adit

CONCLUSION

For all the above-stated reasons, the judgment of the Sixth

Circuit should be reversed, and the case should be remanded with

instructions to dismiss the Respondents’ Complaint.

Respectfully submitted,

ARTHUR A. HILLER*

Town Attorney

Town of Trumbull, Connecticut

815 Main Street, Suite 202

Bridgeport, Connecticut 06604

(203) 335-1183

MARTIN B. MARGULIES

Quinnipiac College School of Law

303 University Avenue

Bridgeport, Connecticut 06604-5769

(203) 576-4121

Counsel for Amicus Curiae

Town of Trumbull, Connecticut

EMANUEL MARGOLIS

WOFSEY, ROSEN, KWESKIN

& KURIANSKY

600 Summer Street

Stamford, Connecticut 06901

(203) 327-2300

Counsel for Amicus Curiae

Connecticut Civil Liberties

Union Foundation

* Counsel of Record