Place Reasonable Controls On “Public Forum” Doctrine by Robert R. Tiernan (March 1995)

The U.S. Supreme Court has agreed to hear an appeal from the state of Ohio, seeking to bar the Ku Klux Klan from erecting a 10-foot cross as a Christmas display in December, 1993.

The Ohio Capitol Square Review Board argued that the Klan cross is a violation of the establishment clause, which does not permit a private group to display a religious symbol even in a “public forum.” The Klan won the right to plant a cross near the state capitol in Columbus, in a 1993 ruling by Reagan appointee, U.S. Federal District Judge James L. Graham, which was upheld by the Sixth Circuit last July.

Unbelievably, the Ku Klux Klan is being represented by the American Civil Liberties Union, Ohio chapter. The American Jewish Congress joined the state agency in its appeal, Capitol Square Review Board v. Pinette, No. 94-780.

To date, there have been no resolved court cases permitting crosses on public property. Last fall, the U.S. Supreme Court let stand a decision to remove a cross from public property in San Diego. Alarmed at the implications of this case, which deal with the so-called “public forum” rationale for permitting overnight or long-time religious displays on public property, the Foundation’s Denver attorney, Robert F. Tiernan, has filed this amicus brief for the national Freedom From Religion Foundation on behalf of the Ohio agency.

By Robert Tiernan

The Freedom From Religion Foundation, Inc. hereby submits this amicus curiae brief in support of the Petitioner and suggests reversal of the decision below.

Interest of Amicus Curiae

The Freedom From Religion Foundation, Inc. (hereinafter “Foundation”) is a nonprofit corporation organized and existing under the laws of the State of Wisconsin whose mission is to promote the constitutional principle of separation of church and state. The Foundation has approximately 3,500 members nationwide.

The Foundation believes that the religious should be free to practice the religion of their choice and that the nonreligious have a right to be free from religion. The Foundation supports the principle of government neutrality on religious matters. It is concerned that the trend to accommodate religion is undercutting this neutrality and that the instant case is, in part, the result of too liberal a policy of accommodation.

Summary Of Argument

The erection of religious monuments on public property, even a public forum, contravenes the Establishment Clause because it forces government to promote religion. When faced with the necessity of choosing between the Establishment Clause, on the one hand, and the Free Speech, Free Exercise Clauses, on the other, the Establishment Clause must prevail. The application of this principle means that public property should not be used for exhibiting religious displays.

If, however the Court is unwilling to accept this position, it should, at a minimum, restrict the public forum doctrine to live demonstrations. The Court should not require that public property be used for unattended displays whether such displays be religious or otherwise. That is a decision that should rest with local government.

Argument

In recent years, the Court has significantly expanded the “equal access” doctrine. This principle, long applicable to speech, has been broadened to include religious speech and activity. In effect, the Court has equated the “free exercise” clause with “free speech.”

The Foundation submits that the two clauses should have separate and distinct application. The “free speech” clause should not be interpreted to embrace religious speech because, to do so, forces the state to promote religion. There is a fundamental difference between religious freedom and freedom of speech. Religious speech is tempered by the Establishment Clause which is absolute in its command that the state shall not promote or endorse religion. The Speech Clause is not subject to this condition. Allowing the speech clause to apply to religious and nonreligious speech alike not only renders the religion clause moot, it places the Court in the present dilemma of having to deal with speech, generally, when only religious speech is at issue.

Application of the equal access doctrine to religious speech is exacerbated by the conflict between the religious and the nonreligious. This conflict is so intense that it brings into question the viability of equal access whenever the speech is that of the nonreligious minority. This concern is based on real life situations experienced by the Foundation.

In early December of 1992, Christian displays were set up in a public forum in Ottawa, Illinois. The Foundation decided to put up a counter-display in the form of a canvas banner which stated “Jesus Christ is a Myth.” The banner was torn down on the first night by a Sunday school teacher. The banner was again put up the next day and was found burned the following morning. A new banner was made, sprayed with fire retardant, and erected with cables which held it twenty or so feet above the ground. Whereupon, an enterprising Christian sprayed the banner with paint so as to obliterate its message.

The next year, Christmas season of 1993, the Foundation erected a new banner. It was cut down overnight, rehung, and cut down again a day later. The Foundation decided to abandon its effort. As a result, the only messages in the park were those advancing and promoting religion. In fact, members of the Foundation have heard the park referred to by the public as “Christian Park.” This experience suggests that the “public forum” doctrine applies in name only and has no real life value to those who wish to display nonreligious messages. It has the unintended result of only promoting the message of the religious majority. It is for this reason that the Foundation urges this Court to modify the public forum doctrine by ruling that it does not apply to speech or other activities which promote religion.

If, however, the Court is unwilling to go this far, the Foundation submits that it should at the very least limit public fora to live demonstrations. Public property should not be forced to become a repository for unattended displays whether they be religious or otherwise. The public has a right to enjoy its property free from any number of homemade billboards that might be erected by those who have a message to convey. If reasonable controls are not placed on the public forum doctrine, one con visualize, for example, the Vietnam Memorial becoming littered with all sorts of displays destroying the reverential nature of that Memorial. That would be tragic.

Conclusion

Wherefore, it is suggested that this Court should reverse the decision of the Court below.

Freedom From Religion Foundation