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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0730%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 753

## Text

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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
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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

ER er ceo Leas Vie Ve SNe,

Vat UT ER Cd ah ote

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0730%3A19. Public record. Not legal advice.