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to him is affirmed. Conversely, Elliott's jury did not receive any instruction on the prima facie provision, and the provision was not an issue in O'Mara's case because he pleaded guilty. The possibility that the provision is severable, and if so, whether Elliott and O'Mara could be retried under the statute, is left open. Also left open is the theoretical possibility that, on remand, the Virginia Supreme Court could interpret the prima facie provision in a manner that would avoid the constitutional objections described above. Pp. 363-368.
Justice Scalia agreed that this Court should vacate and remand the judgment of the Virginia Supreme Court with respect to respondents Elliott and O'Mara so that that court can have an opportunity authoritatively to construe the cross-burning statute's prima-facie-evidence provision. Pp. 368, 379.
Justice Souter, joined by Justice Kennedy and Justice Ginsburg, concluded that the Virginia statute is unconstitutional and cannot be saved by any exception under R. A. V. v. St. Paul, 505 U. S. 377, and therefore concurred in the Court's judgment insofar as it affirms the invalidation of respondent Black's conviction. Pp. 380-381, 387.
O'Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, in which Rehnquist, C. J., and Stevens, Scalia, and Breyer, JJ., joined, and an opinion with respect to Parts IV and V, in which Rehnquist, C. J., and Stevens and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 368. Scalia, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Thomas, J., joined as to Parts I and II, post, p. 368. Souter, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Kennedy and Ginsburg, JJ., joined, post, p. 380. Thomas, J., filed a dissenting opinion, post, p. 388.
William H. Hurd, State Solicitor of Virginia, argued the cause for petitioner. With him on the brief were Jerry W. Kilgore, Attorney General, Maureen Riley Matsen and William E. Thro, Deputy State Solicitors, and Alison P. Landry, Assistant Attorney General.
Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Boyd, Barbara McDowell, Jessica Dunsay Silver, and Linda F. Thome.
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