806
Stevens, J., dissenting
Board would have denied the permit on other grounds. App. 91-92, 169. Accordingly, we must evaluate the State's rationale on its own terms. But in this case, the endorsement inquiry under the Establishment Clause follows from the State's power to exclude unattended private displays from public property. Just as the Constitution recognizes the State's interest in preventing its property from being used as a conduit for ideas it does not wish to give the appearance of ratifying, the Establishment Clause prohibits government from allowing, and thus endorsing, unattended displays that take a position on a religious issue. If the State allows such stationary displays in front of its seat of government, viewers will reasonably assume that it approves of them. As the picture appended to this opinion demonstrates, infra, at 816, a reasonable observer would likely infer endorsement from the location of the cross erected by the Klan in this case. Even if the disclaimer at the foot of the cross (which stated that the cross was placed there by a private organization) were legible, that inference would remain, because a property owner's decision to allow a third party to place a sign on her property conveys the same message of endorsement as if she had erected it herself.13
When the message is religious in character, it is a message the State can neither send nor reinforce without violating the Establishment Clause. Accordingly, I would hold that the Constitution generally forbids the placement of a
13 Indeed, I do not think any disclaimer could dispel the message of endorsement in this case. Capitol Square's location in downtown Columbus, Ohio, makes it inevitable that countless motorists and pedestrians would immediately perceive the proximity of the cross to the capitol without necessarily noticing any disclaimer of public sponsorship. The plurality thus correctly abjures inquiry into the possible adequacy or significance of a legend identifying the owner of the cross. See ante, at 769, n. 4. Justice Souter is of the view that an adequate disclaimer is constitutionally required, ante, at 793-794, but he does not suggest that the attachment to the Klan's cross in this case was adequate.
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