Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 23 (1995)

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Cite as: 515 U. S. 753 (1995)

Opinion of O'Connor, J.

endorse or support student speech that it merely permits on a nondiscriminatory basis." Ibid. Thus, as I read the decisions Justice Souter carefully surveys, our prior cases do not imply that the endorsement test has no place where private religious speech in a public forum is at issue. Moreover, numerous lower courts (including the Court of Appeals in this case) have applied the endorsement test in precisely the context before us today. See, e. g., Chabad-Lubavitch of Georgia v. Miller, 5 F. 3d 1383 (CA11 1993) (en banc); Kreisner v. San Diego, 1 F. 3d 775, 782-787 (CA9 1993), cert. denied, 510 U. S. 1044 (1994); Americans United for Separation of Church and State v. Grand Rapids, 980 F. 2d 1538 (CA6 1992) (en banc); Doe v. Small, 964 F. 2d 611 (CA7 1992) (en banc); cf. Smith v. County of Albemarle, 895 F. 2d 953 (CA4), cert. denied, 498 U. S. 823 (1990); Kaplan v. Burlington, 891 F. 2d 1024 (CA2 1989), cert. denied, 496 U. S. 926 (1990). Given this background, I see no necessity to draw new lines where "[r]eligious expression . . . (1) is purely private and (2) occurs in a traditional or designated public forum," ante, at 770.

None of this is to suggest that I would be likely to come to a different result from the plurality where truly private speech is allowed on equal terms in a vigorous public forum that the government has administered properly. That the religious display at issue here was erected by a private group in a public square available "for use by the public . . . for free discussion of public questions, or for activities of a broad public purpose," Ohio Admin. Code Ann. § 128-4- 02(A) (1994), certainly informs the Establishment Clause inquiry under the endorsement test. Indeed, many of the factors the plurality identifies are some of those I would consider important in deciding cases like this one where religious speakers seek access to public spaces: "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

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