Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 34 (1995)

Page:   Index   Previous  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  Next

786

CAPITOL SQUARE REVIEW AND ADVISORY BD. v. PINETTE

Opinion of Souter, J.

years (a menorah, a United Way "thermometer," and some artisans' booths left overnight during an arts festival), ante, at 758, cf. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 600, n. 50 (1989) ("Even if the Grand Staircase occasionally was used for displays other than the crèche . . . , it remains true that any display located there fairly may be understood to express views that receive the support and endorsement of the government"), and even though the square meets the legal definition of a public forum and has been used "[f]or over a century" as the site of "speeches, gatherings, and festivals," ante, at 757. When an individual speaks in a public forum, it is reasonable for an observer to attribute the speech, first and foremost, to the speaker, while an unattended display (and any message it conveys) can naturally be viewed as belonging to the owner of the land on which it stands.

In sum, I do not understand that I am at odds with the plurality when I assume that in some circumstances an intelligent observer would reasonably perceive private religious expression in a public forum to imply the government's endorsement of religion. My disagreement with the plurality is simply that I would attribute these perceptions of the intelligent observer to the reasonable observer of Establishment Clause analysis under our precedents, where I believe that such reasonable perceptions matter.

II

In Allegheny, the Court alluded to two elements of the analytical framework supplied by Lemon v. Kurtzman, 403 U. S. 602 (1971), by asking "whether the challenged governmental practice either has the purpose or effect of 'endorsing' religion." 492 U. S., at 592. We said that "the prohibition against governmental endorsement of religion 'preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred,' " id., at 593, quoting Wallace v. Jaf-

Page:   Index   Previous  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  Next

Last modified: October 4, 2007