Legal Opinion:
Religious Banners

TO:	John Lawton, City Manager Honorable Mayor and City Commission
FROM:	David V. Gliko, City Attorney
DATE:	May 16, 1997
SUBJECT:	Sequel to May 9, 1997, memo regarding Christian Coalition Banners attached to street light poles.

It is with my apology to all parties concerned that I issue this revised opinion based on more recent U.S. Supreme Court precedent further refining the interpretation of the Establishment Clause than was cited in the May 9, 1997, opinion. Indeed, two dissenting justices, Ginsburg and Stevens, hold with the Jeffersonian principal of clearly maintaining a "wall of separation between church and state" but the majority opinion written by Justice Scalia rules otherwise relying on the First Amendment guarantee of freedom of speech.

In Capital Sq. Review Bd. V. Pinette, 132 L. Ed. 2nd 650 (1995), the Ku Klux Klan application to place a cross on a ten acre state owned plaza surrounding the State-House in Columbus, Ohio, was denied. The Supreme Court found the denial was in error and that the State could not bar the cross from the plaza. Scalia framed the issue:

The question in this case is whether a State violates the Establishment Clause when, pursuant to a religiously neutral state policy, it permits a private party to display an unattended religious symbol in a traditional public forum located next to its seat of government. Pinette, supra 658.

The Court reasoned:

The right to use Government property for one's private expression depends upon whether the property has by law or tradition been given the status of a public forum or rather has been reserved for specific official uses. Pinette, supra 660.

Scalia adopts the "neutrality test" whereby he categorically rejects the notion that a governmental body can violate the Establishment Clause merely by allowing private religious speech to occur in close proximity to symbols of government. In his view, that such speech might reasonably be mistaken for government speech is not sufficient to constitute impermissible government endorsement of religion. Scalia's "neutrality" approach envisions only two scenarios in which a government policy relating to private religious expression would run afoul of the Establishment Clause. The first is when the expression actually emanates from the government itself, and the second is when the government has overtly discriminated in favor of the otherwise private religious expression.

In an interesting expression of dictum, Justice Scalia reflected on the dilemma created if the Court were to hold otherwise:

Policy makers would find themselves in a vise between the Establishment Clause on one side and the free speech and Free Exercise Clause on the other. Every proposed act of private, religious expression in a public forum would force officials to weigh a host of imponderables. How close to government is too close? What kind of building, and in what context, symbolizes state authority? If the State guessed wrong in one direction, it would be guilty of an Establishment Clause violation; if in the other, it would be liable for suppressing free exercise or free speech (a risk not run when the State restrains only is own expression). Pinette, supra 664, 665.

Finally, the Court rules:

Religious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public form, publicly announced and open to all on equal terms. Pinette, supra 666.

The Pinette decision has been cited by lower Federal Courts and is the current interpretation of the Establishment Clause.

In our case, there is no question that Central Avenue has been used and traditionally held to be a "public forum" for the expression of free speech. The street light poles are owned and maintained by the City but the fixtures on the poles used to hold flags or banners were especially obtained for community use, i.e. flags or decorative purposes. Therefore, it is apparent that such a fixture was intended and has been used as part of the "public form", i.e., freedom of expression facilitation. Since the Christian Coalition's intention is to use the fixtures for privately purchased and installed banners and not otherwise supported by public funds or services, it is clear under the precedent cited above that no violation of the Establishment Clause is thereby committed.

Therefore, it is my amended opinion and recommendation that the City may not prohibit the banners installation on the street light poles.