Pinette v. Capitol Square Review and Advisory Bd., 93-4367

• Citation: 30 F.3d 675
• Decision Date: 25 July 1994
• Docket Number: No. 93-4367,93-4367
• Parties: Vincent J. PINETTE; Donnie A. Carr; Knights of the Ku Klux Klan, Plaintiffs-Appellees, v. CAPITOL SQUARE REVIEW AND ADVISORY BOARD; Ronald T. Keller; Daniel Shellenbarger; Richard H. Finan, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 675

30 F.3d 675

Vincent J. PINETTE; Donnie A. Carr; Knights of the Ku Klux

Klan, Plaintiffs-Appellees, v. CAPITOL SQUARE REVIEW AND ADVISORY BOARD; Ronald T. Keller;

Daniel Shellenbarger; Richard H. Finan,

Defendants-Appellants.

No. 93-4367.

United States Court of Appeals, Sixth Circuit.

Argued June 21, 1994.

Decided July 25, 1994.

Benson A. Wolman (argued and briefed), David Goldberger, Moots, Cope & Stanton, Columbus, OH, for plaintiffs-appellees.

Andrew S. Bergman, Office of Atty. Gen., Andrew I. Sutter, Asst. Atty. Gen., Richard A. Cordray (argued and briefed), Office of Atty. Gen., Columbus, OH, for defendants-appellants.

Before: JONES and RYAN, Circuit Judges; and KRUPANSKY, Senior Circuit Judge.

RYAN, Circuit Judge.

Does a private organization's display of a religious symbol in a public forum violate the Establishment Clause? We answered "No" in Americans United for Separation of Church & State v. Grand Rapids, 980 F.2d 1538 (6th Cir.1992) (en banc ), provided that there is equal access to the public forum and the display itself is truly private. Yet some doubt lingers, at least in the mind of the defendants in this case, as to when private religious speech violates the Establishment Clause.

The Capitol Square Review and Advisory Board appeals the district court's injunction ordering the board to grant Vincent J. Pinette and the Knights of the Ku Klux Klan, Ohio Realm, a permit to erect a wooden cross in Capitol Square, a public square in front of the state capitol building in Columbus, Ohio. Because Capitol Square is a public forum and the Klan's display of a Latin cross is private speech, a reasonable observer could not perceive the display at issue to be a government endorsement of religion. Therefore, we hold that the display does not violate the Establishment Clause and we affirm.

I.

Capitol Square is a ten-acre public square located in downtown Columbus, Ohio, and is owned by the State of Ohio. Ohio's state capitol building, the Statehouse, is located in Capitol Square along with other governmental office buildings. For more than a century, countless public gatherings and cultural festivals have been held in the square. During the holiday season, the square has been decorated with lights, a Christmas tree, and, in recent years, a menorah. The Capitol Square Review and Advisory Board, by virtue of Ohio Rev.Code Ann. Sec. 123.02.2, has the sole authority to regulate the various uses of the square.

On November 18, 1993, the board voted to ban unattended displays from the square during December 1993. The board, however, reversed its decision within a week following public outcry. A Christmas tree went up, and on November 29, 1993, the board granted a permit to erect a menorah on the square during the eight days of Chanukah. On that same day, November 29, Donnie A. Carr, the Columbus unit coordinator for the Ku Klux Klan, Ohio Realm, applied for a permit to erect a cross on the square from December 8 through December 24, 1993. On December 3, Ronald Keller, the executive director of the board, denied the Klan's application for a permit, stating in a letter that his decision "was made upon the advice of counsel, in a good faith attempt to comply with the Ohio and United States Constitutions, as they have been interpreted in relevant decisions by the Federal and State Courts." On December 9, the Klan appealed Keller's decision; an administrative hearing was held and the hearing officer issued a report and recommendation advising that the Klan's application for a permit be denied. The board subsequently adopted that recommendation. On December 17, the Klan, through Vincent Pinette, its chief executive officer, Ohio Realm, sought an injunction in federal district court requiring the board to issue the permit. The district court held a hearing on December 20, and on December 21, the district court granted the Klan's request for an injunction and ordered the board to issue the permit. The district court concluded that Capitol Square was a traditional public forum and the cross the Klan proposed to erect was protected speech. The district court reasoned that because a private party (not the government) sought to display a religious symbol in a public forum, a reasonable observer would not perceive the display to be an endorsement of religion and thus the Establishment Clause was not implicated.

After the district court issued the injunction, the board immediately moved for a stay pending appeal, which the district court denied. On December 21, the board appealed to this court and moved for an emergency stay pending the appeal, which we denied on December 22, 1993. The board then filed an emergency application for a stay of injunction with Supreme Court Associate Justice John Paul Stevens, our circuit justice, which he denied on December 23, 1993. --- U.S. ----, 114 S.Ct. 626, 126 L.Ed.2d 636 (Stevens, Circuit Justice 1993). Meanwhile, the Klan erected the cross on Capitol Square on the evening of December 21; the cross remained there for at least a day until it was vandalized.

II.

Our jurisdiction, of course, depends upon the existence of an actual case or controversy. SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 406, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937); see also U.S. Const. art. III, Sec. 2. At the outset, we acknowledge that events subsequent to our hearing oral argument in this appeal have rendered this case moot: the injunction at issue has already expired and the cross no longer stands in Capitol Square. Cf. Neighbors Organized to Insure a Sound Env't, Inc. v. McArtor, 878 F.2d 174, 178 (6th Cir.1989). However, in a case in which an injury is inherently of such short duration as to make judicial review largely impossible, and the injury is likely to recur, we do not dismiss the case for mootness. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975). We think it likely that the Klan or some other organization will, in the future, seek access to Capitol Square, and there is every reason to believe that any future action involving the same parties and issues will take at least as long to wind its way through the legal system as this case has. See Rosen v. Brown, 970 F.2d 169, 173 (6th Cir.1992). Thus, we are satisfied that we may properly exercise jurisdiction over this case under the exception to the mootness doctrine for wrongs capable of repetition yet evading review.

Ordinarily we review a district court's grant or denial of an injunction for an abuse of discretion, Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir.1992), but here the district court combined the hearing on the injunction with a trial on the merits under Fed.R.Civ.P. 65(a)(2). Accordingly, we review the district court's findings of fact for clear error under Fed.R.Civ.P. 52 and its conclusions of law de novo.

The United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech...." U.S. Const. amend. I. The Religion Clauses of the First Amendment apply to the states via the Fourteenth Amendment. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081-82, 31 L.Ed.2d 263 (1972); Everson v. Board of Educ., 330 U.S. 1, 5, 67 S.Ct. 504, 506, 91 L.Ed. 711 (1947). Private religious speech is protected under the Free Speech and Free Exercise Clauses. Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563-64, 69 L.Ed.2d 298 (1981). Without a compelling interest, the government may not discriminate against private speech in a public forum on account of the speaker's views. See, e.g., Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 2290-91, 65 L.Ed.2d 263 (1980); Police Dep't of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972); Niemotko v. Maryland, 340 U.S. 268, 271-72, 71 S.Ct. 325, 327-28, 95 L.Ed. 267 (1951). Speakers with a religious message are entitled no less access to public forums than that afforded speakers whose message is secular or otherwise nonreligious. See, e.g., Lamb's Chapel v. Center Moriches Union Free Sch. Dist., --- U.S. ----, ----, 113 S.Ct. 2141, 2148, 124 L.Ed.2d 352 (1993); Board of Educ. of Westside Community Sch. v. Mergens, 496 U.S. 226, 248-49, 110 S.Ct. 2356, 2371, 110 L.Ed.2d 191 (1990); Widmar v. Vincent, 454 U.S. 263, 267 n. 5, 274-75, 102 S.Ct. 269, 273 n. 5, 277, 70 L.Ed.2d 440 (1981); Niemotko, 340 U.S. at 271-72, 71 S.Ct. at 327; Americans United, 980 F.2d at 1553; Doe v. Small, 964 F.2d 611, 629 (7th Cir.1992) (Easterbrook, J., concurring). Finally, we must keep in mind that "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Mergens, 496 U.S. at 250, 110 S.Ct. at 2372.

Capitol Square is, indeed, a traditional public forum. Over the years, groups as divergent as the Ku Klux Klan and the United Way have held rallies and sponsored speeches in the square. During the holiday season, a menorah and a Christmas tree have been displayed on the square.

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515 [59 S.Ct. 954, 964, 83 L.Ed. 1423] (1939). In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a...