754
Syllabus
see, e. g., Lamb's Chapel, 508 U. S., at 394-395, but the conclusion that that interest is not implicated in this case is strongly suggested by the presence here of the factors the Court considered determinative in striking down state restrictions on religious content in Lamb's Chapel, id., at 395, and Widmar v. Vincent, 454 U. S. 263, 274. As in those cases, the State did not sponsor respondents' expression, the expression was made on government property that had been opened to the public for speech, and permission was requested through the same application process and on the same terms required of other private groups. Pp. 761-763.
Justice Scalia, joined by The Chief Justice, Justice Kennedy, and Justice Thomas, concluded in Part IV that petitioners' attempt to distinguish this case from Lamb's Chapel and Widmar is unavailing. Petitioners' argument that, because the forum's proximity to the seat of government may cause the misperception that the cross bears the State's approval, their content-based restriction is constitutional under the so-called "endorsement test" of, e. g., County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, and Lynch v. Donnelly, 465 U. S. 668, is rejected. Their version of the test, which would attribute private religious expression to a neutrally behaving government, has no antecedent in this Court's Establishment Clause jurisprudence, which has consistently upheld neutral government policies that happen to benefit religion. Where the Court has tested for endorsement, the subject of the test was either expression by the government itself, Lynch, supra, or else government action alleged to discriminate in favor of private religious expression or activity, see, e. g., Allegheny, supra. The difference between forbidden government speech endorsing religion and protected private speech that does so is what distinguishes Allegheny and Lynch from Widmar and Lamb's Chapel. The distinction does not disappear when the private speech is conducted close to the symbols of government. Given a traditional or designated public forum, publicly announced and open to all on equal terms, as well as purely private sponsorship of religious expression, erroneous conclusions of state endorsement do not count. See Lamb's Chapel, supra, at 395, and Widmar, supra, at 274. Nothing prevents Ohio from requiring all private displays in the square to be identified as such, but it may not, on the claim of misperception of official endorsement, ban all private religious speech from the square, or discriminate against it by requiring religious speech alone to disclaim public sponsorship. Pp. 763-769.
Justice O'Connor, joined by Justice Souter and Justice Breyer, concluded that the State has not presented a compelling justification for denying respondents' permit. Pp. 772-783.
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