Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 26 (1995)

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778

CAPITOL SQUARE REVIEW AND ADVISORY BD. v. PINETTE

Opinion of O'Connor, J.

groups will dominate [the school's] open forum"). Other circumstances may produce the same effect—whether because of the fortuity of geography, the nature of the particular public space, or the character of the religious speech at issue, among others. Our Establishment Clause jurisprudence should remain flexible enough to handle such situations when they arise.

In the end, I would recognize that the Establishment Clause inquiry cannot be distilled into a fixed, per se rule. Thus, "[e]very government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion." Lynch, 465 U. S., at 694 (O'Connor, J., concurring). And this question cannot be answered in the abstract, but instead requires courts to examine the history and administration of a particular practice to determine whether it operates as such an endorsement. I continue to believe that government practices relating to speech on religious topics "must be subjected to careful judicial scrutiny," ibid., and that the endorsement test supplies an appropriate standard for that inquiry.

II

Conducting the review of government action required by the Establishment Clause is always a sensitive matter. Unfortunately, as I noted in Allegheny, "even the development of articulable standards and guidelines has not always resulted in agreement among the Members of this Court on the results in individual cases." 492 U. S., at 623. Today, Justice Stevens reaches a different conclusion regarding whether the Board's decision to allow respondents' display on Capitol Square constituted an impermissible endorsement of the cross' religious message. Yet I believe it is important to note that we have not simply arrived at divergent results after conducting the same analysis. Our fundamental point of departure, it appears, concerns the knowledge that is properly attributed to the test's "reasonable observer [who]

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