The Nine [53]
In at least one respect, Scalia had a point. As many as six justices had criticized the Lemon test, but it still haunted the Court, mostly because O’Connor upheld it. On church-state issues, like so many others, O’Connor had the swing vote, but not because she had trouble making up her mind about whether she was a liberal or a conservative. For O’Connor, centrism was a judicial philosophy in itself. When she gave tours of the Court, O’Connor would always point out the beautiful cast-iron lampposts in the courtyards. “Look at the bottom of the lampposts,” she’d say. “They’ve got turtles around the bottom, holding up the rest of it. That’s like us on the Court. We’re slow and steady, and we don’t move too fast in any direction.” O’Connor believed that steadiness was a virtue, and it was O’Connor who, like the turtles, carried the opinions of the Court on her back.
A case toward the end of Clinton’s first term illustrated the difference in Scalia’s and O’Connor’s approaches to church-state issues. As had often happened before, simple facts led the Court to a complex result. In the fall of 1993, various civic groups in Ohio began seeking space for their holiday displays on the ten-acre plaza near the statehouse in Columbus. The state authorities gave permission for the state to put up a Christmas tree, for a local synagogue to erect a menorah, and for the United Way to post a sign about the progress of a fund-raising campaign. But the state denied a request from the local branch of the Ku Klux Klan to place a Latin cross on the plaza, on the ground that such a cross on public property would represent the “establishment” of a state religion, in violation of the First Amendment. Vincent Pinette, the head of the KKK in Ohio, sued to win the right to raise the cross.
In 1995, the Court ruled 7–2 that the KKK should have the right to display the cross on Capitol Square. The case produced a bewildering six different opinions, with various justices affiliating themselves with all or parts of several of them. Scalia and O’Connor both supported the KKK’s legal position, but their rationales heightened the differences between them. (Stevens and Ginsburg were the dissenters; they believed that allowing the KKK to put up the cross did violate the Establishment Clause.)
For Scalia, as always, the issue was clear. To him, speech by and about religion received precisely the same protection under the First Amendment as any other kind of speech. “Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression,” he wrote. “Indeed, in Anglo American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free speech clause without religion would be Hamlet without the prince.” True, the government itself might not be able to erect religious symbols, but if that government allowed Democrats and Republicans to give speeches on a public square, it had to permit Christians, Jews, and even the KKK to put up any symbols they wished as well. To Scalia, the Establishment Clause “applies only to the words and acts of government. It was never meant, and has never been read by this Court, to serve as an impediment to purely private religious speech.”
O’Connor disagreed completely. In her view, a private religious display could violate the Establishment Clause if a “reasonable, informed observer…would think that the State was endorsing religion or any particular creed.” In Columbus, no reasonable person could think that the state was endorsing the KKK’s cross, so the group had a right to display it. O’Connor’s solution to the problem was a flexible balancing test, like the one in Lemon. The problem with such an approach, of course, was that it would not always be clear what the justices themselves, much less the mythical “reasonable, informed observer,” would conclude about a given religious display. With characteristic vitriol (especially