Capitol Square is a state-owned plaza that for over a century has been open to public gatherings and free speech activities. It is a public forum (and is expressly designated as such under Ohio law).
The public officials in charge of the square allow unattended displays on the square – you can apply for a permit to erect a display on the square for a week or two. Created some kind of public forum for unattended displays.
The Klu Klux Klan applied for a permit to erect a cross on the square, and the permit was denied on the grounds that allowing the display would violate the Establishment Clause. (P. 1813)
Notice, if the Klan had wished to display a KKK flag instead of a cross, there would have been no case under the Establishment Clause.
It is only because the cross is a religious symbol that the state had even a colorable argument that its censorship was justified.
What do you think?
Does the Establishment Clause prohibit an unattended religious display of a private individual or group in a public forum such as a park or Capitol Square Plaza?
Lemon test? (See O'Conner's concurrence at p. 1816--sign disclaiming endorsement)
Kavanaugh test:
"[T]he Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross....And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or (iii) represents a permissible legislative accommodation or exemption from a generally applicable law, then there ordinarily is no Establishment Clause violation. The practice of displaying religious memorials, particularly religious war memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. . . ."
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