Cite as: 515 U. S. 753 (1995)
Stevens, J., dissenting
symbol of a religious character in, on, or before a seat of government.
III
The Court correctly acknowledges that the State's duty to avoid a violation of the Establishment Clause can justify a content-based restriction on speech or expression, even when that restriction would otherwise be prohibited by the Free Speech Clause. Ante, at 761-762; ante, at 783 (opinion of O'Connor, J.). The plurality asserts, however, that government cannot be perceived to be endorsing a religious display when it merely accords that display "the same access to a public forum that all other displays enjoy." Ante, at 764. I find this argument unpersuasive.
The existence of a "public forum" in itself cannot dispel the message of endorsement. A contrary argument would assume an "ultrareasonable observer" who understands the vagaries of this Court's First Amendment jurisprudence. I think it presumptuous to consider such knowledge a precondition of Establishment Clause protection. Many (probably most) reasonable people do not know the difference between a "public forum," a "limited public forum," and a "nonpublic forum." They do know the difference between a state capitol and a church. Reasonable people have differing degrees of knowledge; that does not make them " 'obtuse,' " see 30 F. 3d 675, 679 (CA6 1994) (quoting Doe v. Small, 964 F. 2d 611, 630 (CA7 1992) (Easterbrook, J., concurring)); nor does it make them unworthy of constitutional protection. It merely makes them human. For a religious display to violate the Establishment Clause, I think it is enough that some reasonable observers would attribute a religious message to the State.
The plurality appears to rely on the history of this particular public forum—specifically, it emphasizes that Ohio has in the past allowed three other private unattended displays. Even if the State could not reasonably have been understood to endorse the prior displays, I would not find this argument
807
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