800
Stevens, J., dissenting
quately protect nonadherents from a well-grounded perception that their sovereign supports a faith to which they do not subscribe.5
In determining whether the State's maintenance of the Klan's cross in front of the statehouse conveyed a forbidden message of endorsement, we should be mindful of the power of a symbol standing alone and unexplained. Even on private property, signs and symbols are generally understood to express the owner's views. The location of the sign is a significant component of the message it conveys.
"Displaying a sign from one's own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means. Precisely because of their location, such signs provide information about the identity of the 'speaker.' As an early and eminent student of rhetoric observed, the identity of the speaker is an important component of many attempts to persuade. A sign advo-5 Justice O'Connor agrees that an "endorsement test" is appropriate and that we should judge endorsement from the standpoint of a reasonable observer. Ante, at 779. But her reasonable observer is a legal fiction, " 'a personification of a community ideal of reasonable behavior, determined by the [collective] social judgment.' " Ante, at 780. The ideal human Justice O'Connor describes knows and understands much more than meets the eye. Her "reasonable person" comes off as a well-schooled jurist, a being finer than the tort-law model. With respect, I think this enhanced tort-law standard is singularly out of place in the Establishment Clause context. It strips of constitutional protection every reasonable person whose knowledge happens to fall below some " 'ideal' " standard. Instead of protecting only the " 'ideal' " observer, then, I would extend protection to the universe of reasonable persons and ask whether some viewers of the religious display would be likely to perceive a government endorsement.
Justice O'Connor's argument that "[t]here is always someone" who will feel excluded by any particular governmental action, ibid., ignores the requirement that such an apprehension be objectively reasonable. A person who views an exotic cow at the zoo as a symbol of the government's approval of the Hindu religion cannot survive this test.
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