BOARD OF TRUSTEES OF THE VILLAGE OF SCARSDALE, ET AL., PETITIONERS V. KATHLEEN S. MCCREARY, ET AL. No. 84-277 In the Supreme Court of the United States October Term, 1984 On writ of Certiorari to the United States Court of Appeals for the Second Circuit Brief for the United States as Amicus Curiae Supporting Affirmance TABLE OF CONTENTS Interest of the United States Statement Introduction and summary of argument Argument I. The Establishment Clause does not prohibit the government from permitting private citizens, at their own expense, to use public land for display of a nativity scene during the Christmas holiday season A. The use of public land by private citizens, on a neutral basis, for symbolic expression of a religious or political nature does not imply government endorsement of their point of view B. That display of the privately-sponsored nativity scene here is permissible follows a fortiori from this Court's approval of a government-sponsored nativity scene in Lynch v. Donnelly 1. Public and private land 2. Context 3. Divisiveness 4. Official secular purpose II. The judgment of the court of appeals leaves the Village free to adopt neutral rules under which it could either permit or exclude respondents' creche A. Petitioners mischaracterize the opinion and judgment of the court of appeals; the court did not "compel" the Village to authorize display of a creche in Boniface Circle B. Under the judgment below, the Village may adopt neutral rules that might, or might not, exclude respondents' creche C. Neutral rules for the use of Boniface Circle would protect the Village's legitimate interests without discriminating against religious or other controversial speech Conclusion QUESTIONS PRESENTED 1. Whether it would violate the Establishment Clause of the First Amendment for a local community to permit a group of private citizens, at their own expense, to display a nativity scene for a period of approximately two weeks during the Christmas holiday season in a small public park in the center of town. 2. Whether the court of appeals' judgment requiring the Village of Scarsdale to reconsider respondents' application without relying on the Establishment Clause as a basis for denial "compels" the Village to allow the nativity scene. INTEREST OF THE UNITED STATES This case involves two issues of law under the First Amendment. First, does the Establishment Clause prohibit the government from permitting private individuals to erect and maintain a stationary religious symbol in a public park, at their own expense, in connection with a religious holiday? Second, does the Free Speech Clause require the government to permit erection of such a structure under the circumstance of this case? Both issues directly affect the United States in its capacity as owner of national parks. National Park Service regulations, 36 C.F.R. 50.19, allow individuals or groups to conduct demonstrations ("demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views" (36 C.F.R. 50.19 (a)) in the national parks, and to erect "temporary structures" in connection with such demonstrations "for the purpose of symbolizing a message or meeting logistical needs." 36 C.F.R. 50.19(d)(8); see Clark v. Community for Creative Non-Violence, No. 82-1998 (June 29, 1984), slip op. 3. A permit is required for any demonstration involving more than 25 participants or a temporary structure (other than small lecturns or speaker platforms). 36 C.F.R. 50.19(b)(1) and (d)(8)(v). No distinction is made on the basis of the religious, political, or other content of the demonstrations; conflicting applications are granted on a first-come, first-served basis. 36 C.F.R. 50.19(d). For approximately six and eleven years, respectively, the National Park Service has granted demonstration permits to private groups to erect and maintain, for a several week period during the holiday season, a menorah in Lafayette Park directly across Pennsylvania Avenue from the White House, and a nativity scene on the east panel of the Ellipse. Like petitioners' description of the nativity scene in the instant case, both of these symbols are on public land in prominent locations (cf. Pet. Br. 41-42) and are displayed standing alone, with no immediate secular context (cf. Pet. Br. 42-44). Adoption by this Court of petitioners' argument might well call into question this neutral and established federal practice. /1/ Petitioners also contend that the court of appeals' judgment has "compelled" the Village "to allow placement" of a nativity scene in a small public park in the center of town (Pet. Br. i). As to this issue, the United States also has a substantial interest. Although, as noted, Park Service regulations generally allow individuals and groups to erect "temporary structures" (such as creches and menorahs) in connection with permitted demonstrations on public park land, we would share petitioners' concern about a constitutional rule that would compel the government to allow unattended structures in any location that is otherwise deemed a forum for First Amendment activity. STATEMENT 1. From 1957 through 1980, the Village of Scarsdale granted the request of a private group ("the Scarsdale Creche Committee") to place a nativity scene in Boniface Circle, a small park in the center of town. The cost of the creche was borne entirely by the Committee, with the exception of electricity for a light bulb in some past years. During the last five years of this period, the Committe was required, as a condition to displaying the creche, to post a sign beside it stating: "This creche has been erected and maintained solely by the Scarsdale Creche Committee, a private organization" (Pet. App. 34a). The district court opinion recounts in some detail the other uses of Boniface Circle and other Scarsdale parks by private groups from approximately 1960 to the present. See Pet. App. 28a-29a, 43a-45a. In brief, "most applications for access to Boniface Circle have been denied" (id. at 43a (footnote omitted)), usually for reasons related to shopping, traffic, parking, or safety, or for no reason at all; once because of the character of the park as a "War Memorial" (ibid.). Other activities that have been allowed in the park include, in addition to Fourth of July and Memorial Day celebrations, only the following: a carnival in connection with the American Field Service Work Day, a kick-off for the Community Fund Drive, and a Christmas Carol Sing sponsored by the Town Club (id. at 44a). None of these uses of Boniface Circle involved unattended structures, /2/ although unattended symbolic structures have been permitted on public property elsewhere in the Village. In 1981 and years following, the Village Board of Trustees voted to deny permission for display of the creche on Boniface Circle. The reason for the denial, according to the district court (Pet. App. 46a (emphasis in original)), was the Trustees' belief that "because the symbol was religious it should not be on any public land." The court did not specify whether this belief was based on an interpretation of the Establishment Clause or on a general fear that religious symbols on public land would "generate discord in the community" (Pet. App. 46a). Petitions state that it was both (Pet. Br. 8 (citing minutes of the Board of Trustees)). 2. Following denial of the 1982 application, respondents, two private groups that desired to display a nativity scene in Boniface Circle, /3/ filed suit in United States District Court for the Southern District of New York, contending that petitioners' denial of their applications violated their rights under the Free Speech and Free Exercise Clauses of the First Amendment, and the Equal Protection Clause of the Fourteenth. Pet. App. 27a. The district court held that Boniface Circle is a "traditional public forum" (Pet. App. 42a) and that the Village's denial of respondents' applications was "content-based" -- that is, that the denial was based on the religious character of the proposed display. Id. at 46a-47a. The court also held "that the denial could not be upheld as a time, place or manner restriction even if it were content-neutral because it was not issued pursuant to narrowly tailored regulation." Id. at 47a (footnote omitted) (citing Niemotko v. Maryland, 340 U.S. 268 (1951)). /4/ However, the district court then held (three months before this Court's decision in Lynch v. Donnelly, No. 82-1256 (Mar. 5, 1984), that the Village's action in barring the creche was justified by the "compelling state interest" of avoiding violation of the Establishment Clause. Pet. App. 47a; cf. Widmar v. Vincent, 454 U.S. 263, 270-276 (1981). The district court acknowledged that allowing placement of the nativity scene would have the legitimate secular purpose of "providing equal access to a public forum" (Pet. App. 51a), and that "entanglement" problems would be insufficient to create an Establishment Clause violation (id. at 53a). /5/ However, the court reasoned that allowing placement of the creche would violate the Establishment Clause because it would have the primary effect of advancing religion. Unlike religious activities by individuals (such as rallies, sermons, leafletting, or the like), which would be permissible on Boniface Circle (Pet. App. 53a), the placement of an unattemded symbol on public land converts the public property from being "just a place from which a message can be proclaimed" to being the actual "message bearer" (id. at 55a). Moreover, the court reasoned (id. at 56a), in the absence of "persons present to whom the receiver of the religious message can attribute the speech," the possibility is enhanced that the observers "will assume it is supported by the state." The court concluded (id. at 61a (emphasis and brackets in original; citations omitted)): The line we have drawn allows persons with religious views unfettered freedom to come onto public forum property to personally speak those views. We also think it would give them the unimpeded right, subject of course to reasonable time, place and manner restrictions, to bring religious symbols with them. * * * And, we think, it draws a boundary which does not question the right of religion to receive "general (governmental) benefits," but which does allow government not to be "joined" in the promotion of religion. 3. The court of appeals reversed the district court's holding that allowing the nativity scene would violate the Establishment Clause. In reliance on Lynch v. Donnelly, supra, and Widmar v. Vincent, supra, the court of appeals held that to permit a private group to display a creche on public property would not constitute an endorsement of religion. The court "t(ook) care to emphasize the narrowness of (its) ruling," (Pet. App. 24a), stating (ibid.): we * * * hold only that the Village would not contravene the establishment clause by allowing the display of a creche at Boniface Circle, a traditional public forum, for a period of approximately two weeks during the Christmas holiday season. The judgment of the court did not compel the Village to grant permission for respondents to put on their display. Rather, the court of appeals remanded to the district court "for the entry of an injunction prohibiting the Village from relying on the establishment clause as a reason for prohibiting the erection of a creche at Boniface Circle (id. at 25a). The court's opinion stressed that its judgment "does not affect the ability of the Village to establish reasonable time, place and manner restrictions regarding the use of its public properties, including Boniface Circle" (ibid.). /6/ INTRODUCTION AND SUMMARY OF ARGUMENT The most striking aspect of this case is that both sides in the dispute believe that the Constitution (the very same Amendment) not just permits, but compels, the Village of Scarsdale to accept their substantive positions, and deprives the community of all discretion to determine whether or not a private group should be allowed to maintain a creche in Boniface Circle during the Christmas season. Petitioners believe that the Constitution prohibits the Village from allowing the creche; respondents believe that the Constitution requires the Village to allow it. A false dilemma has thus been created. The district court began with the premise that, because Boniface Circle is in some ways a "traditional public forum," it follows that respondents have a constitutional right to erect and maintain a structure in that place, unrelated to any actual speech, religious service, or demonstration by individual persons. The court expressly rejected the idea that exclusion of this structure might be justified on the basis of reasonable time, place or manner regulations. Having thus truncated the Village's discretion to control its property on the one side of the balance, the district court then proceeded to hold that the Village also lacks the discretion to permit an unattended religious symbol on public land. Only because allowing the nativity scene is forbidden, the court reasoned, is it not required. We submit that the Establishment Clause does not bar the government from granting access to private citizens for erection of a temporary religious holiday symbol, so long as no religious favoritism or discrimination is involved. This was the position of the federal courts even before Lynch v. Donnelly, supra. See Allen v. Morton, 495 F.2d 65 (D.C. Cir. 1973). The federal government has followed this approach for ten years, without legal challenge or even formal complaint. Now that this Court, in Lynch, has upheld the right of a community to include a nativity scene in a government-sponsored Christmas celebration, it is beyond question that neutral accommodation of private groups on public land would also be permissible. But we submit that it does not follow that the Village of Scarsdale and like governments (including the United States in its capacity as owner of park land) are compelled to grant permission to private persons to erect religious -- or any other -- symbols, to be displayed, unattended, on any parcel of public land that is available for other forms of First Amendment activity. Nor did the court of appeals so hold. Contrary to repeated assertions of petitioners (Pet. Br. i, 13, 14, 15, 16, 25, 35, 40, 41, 47, 48), the court of appeals did not "compel," "require," "order," or "command" the Village to grant permission for the creche on Boniface Circle. On the contrary, the court "h(e)ld only that the Village would not contravene the Establishment Clause by allowing the display of a creche at Boniface Circle" (Pet. App. 24a) and expressly observed that the Village could enforce reasonable time, place, and manner restrictions, as long as these are not content-based (id. at 25a). We believe that a neutral distinction between unattended structures and actual speech activities by individuals should be sustained in the context of this small park in the center of town. A simple affirmance of the narrow holding of the court of appeals would break the false dilemma created by the district court below. The Village has ample discretion under the Constitution to adopt neutral policies for the use of its park, and thereby either to permit or to exclude nativity scenes and similar unattended structures. Reasonable latitude to make these sensitive decisions, of intensely local concern, should be left in the hands of the Village Board of Trustees, which is better able than litigators and courts to forge a locally acceptable solution that accomodates the feelings and interests of the Village citizenry. ARGUMENT I. THE ESTABLISHMENT CLAUSE DOES NOT PROHIBIT THE GOVERNMENT FROM PERMITTING PRIVATE CITIZENS, AT THEIR OWN EXPENSE, TO USE PUBLIC LAND FOR DISPLAY OF A NATIVITY SCENE DURING THE CHRISTMAS HOLIDAY SEASON A. The Use Of Public Land By Private Citizens, On A Neutral Basis, For Symbolic Expression Of A Religious Or Political Nature Does Not Imply Government Endorsement Of Their Point Of View Even before Lynch v. Donnelly, No. 82-1256 (Mar. 5, 1984), the federal courts recognized the right of individuals and groups, on a neutral and nondiscriminatory basis, to erect and display nativity scenes and similar religious holiday symbols, on a temporary basis and at their own expense, on public land. Allen v. Morton, 495 F.2d 65 (D.C. Cir. 1973). Judge Leventhal, concurring in Allen, stated that "the Government could avoid all Establishment issues" by treating private organizations that desire to display a creche on public land "like any other applicant for use of parkland" (id. at 90). /7/ See also O'Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979) (upholding a National Park Service decision to permit performance of a Papal Mass on the National Mall). The underlying principle here is that activities on public land are not, and are not generally perceived to be, actions of the government. O'Hair v. Andrus, 613 F.2d at 934 (when a public park "is, as a matter of established policy, openly available on a non-discriminatory basis * * * to (all comers) (religionists and anti-religionists), there is no 'establishment of religion,' and there cannot be a meaningful perception of one"). Public parks have been used "time out of mind" for purposes of assembly, protest, and communication (Hague v. CIO, 307 U.S. 496, 515 (1939) (Roberts, J.)); it has never been thought necessary to limit the rights of the people to free speech and assembly on public land merely because some other persons might mistake their activities for government endorsement of a particular point of view. /8/ Nor does "the First Amendment protection against forced support or affirmation of repugnant ideas" (Pet. Br. 34) apply to use of public land by individuals for the expression of ideas (however repugnant). Citizens of a town plainly have no First Amendment right -- as petitioners contend (Pet. Br. 35) -- to prevent speakers with whom they disagree from exercising equal rights of speech and assembly on public land. In these respects, religious communications are no different from any others. Religious speakers, no less than others, may use public land for the communication of ideas. Niemotko v. Maryland, 340 U.S. 268 (1951); O'Hair v. Andrus, supra. It is inherently no more likely that a privately-placed creche on public property will be viewed as a government endorsement of religion than that a collection of tents in Lafayette Park, called "Reaganville II" and designed to protest the plight of the homeless (see Clark v. Community for Creative Non-Violence, No. 82-1998 (June 29, 1984)), would be so confused. But even if it were, the potential for such misunderstanding would not justify exclusion of religious expression from forums otherwise open to all. To accept petitioners' premise that religious (and other forms of controversial) symbolic speech must be excluded from public parks because of the danger that some observers may infer a government endorsement of the message would convulse modern First Amendment law. It would mean -- as petitioners' brief intimates (Br. 19) -- that the only ideas that could be communicated on public land are orthodox ideas: those "wrapped in the shared and approving sentiments of the community" (ibid.). It would necessitate close administrative and jurisprudential discriminations among forms of symbolic speech, on an essentially standardless basis. We submit that content-neutral rules regarding use of public parks are the best guarantee of First Amendment rights. No special rules are required for nativity scenes or other religious or controversial symbols. B. That Display Of The Privately-Sponsored Nativity Scene Here Is Permissible Follows A Fortiori From This Court's Approval Of A Government-Sponsored Nativity Scene In Lynch v. Donnelly Last Term, in Lynch v. Donnelly, supra, this Court held that a government-owned and sponsored display of a nativity scene, as part of a general holiday celebration, did not violate the Establishment Clause. We believe that decision is controlling here; indeed, the instant case follows a fortiori from the decision in Lynch. Here, unlike in Lynch, the nativity scene is privately owned; there is no government sponsorship whatsoever. Whatever concerns there might be that the government's display of a creche may communicate a message of endorsement of the Christian religion (see Lynch, slip. op. 3-8 (O'Connor, J., concurring)) are absent when the government has played no part (other than to grant permission) in its display. This point is particularly clear here because the creche is accompanied by a sign informing observers that the scene is "erected and maintained solely by * * * a private organization" (Pet. App. 8a) -- a safeguard not usually provided in connection with private expression on public land. There is, therefore, far less cause for concern here than there was in Lynch. Petitioners have attempted (Br. 41-47) to distinguish the decision in Lynch on four grounds: (1) that the creche at issue in Lynch was on private land, while the land here is public; (2) that the Pawtucket creche was part of a larger Christmas display, while the creche here is displayed alone; (3) that the creche display here has engendered actual political divisiveness; and (4) that the Pawtucket officials asserted a secular purpose for their creche display, while the Scarsdale officials here have asserted none. None of these is persuasive. 1. Public and Private Land. Petitioners contend that it is significant that the nativity scene at issue here would be displayed on public park land, while the scene in Lynch was on private property. However, the opinion for the Court in Lynch did not rely in any fashion on the happenstance that the Pawtucket Christmas display was on private land. The Court treated the case, quite properly, as one in which the government was responsible for, and identified with, the display. Moreover, the Court analogized the case to other situations in which acknowledgements of religion take place on public property. Slip op. 16. Considering the full circumstances of the two cases, it cannot seriously be argued that there is greater government involvement with (or appearance of government support for the religious message of) the privately owned nativity scene in Boniface Circle than with the creche in Lynch, which was "purchased, erected, displayed, sponsored and owned" by the government (Pet. App. 19a). /9/ 2. Context. Petitioners attempt to distinguish Lynch on the ground that "(t)he Scarsdale creche has always been presented and displayed standing by itself in Boniface Circle," while the Pawtucket creche was part of a Christmas display including, inter alia, a Santa Claus house, reindeer pulling Santa's sleigh, carolers, a Christmas tree, and a talking wishing well (Pet. Br. 42-43). The court of appeals correctly rejected this purported distinction (Pet. App. 22a-23a). The contextual distinction drawn by petitioners is one of degree, not of kind. As the court of appeals pointed out (Pet. App. 23a), the Scarsdale creche should be viewed not in isolation, but in the context of the "many traditional symbols of Christmas" decorating other parts of the Village, including Christmas lights and docorations, provided by the Chamber of Commerce, in Boniface Circle itself. Further, as the court of appeals also pointed out (Pet. App. 23a), this Court was concerned less with the particulars of the specific Christmas display in Lynch than with the overall "context of the Christmas season" (Lynch, slip op. 9). The point is that displaying a traditional symbol of a holiday -- even if religious in origin and meaning -- does not amount to an endorsement of the religious faith; it is simply a traditional acknowledgement that the holiday is in part a religious holiday. Petitioners trivialize Lynch by claiming that the absence of a cut-out clown, reindeer, or talking wishing well must dictate a different result. The federal courts have more important matters to decide than the significance of marginal differences in holiday displays -- especially those erected by private individuals. 3. Divisiveness. Petitioners attempt to distinguish Lynch on the ground that there has been "actual and severe, not merely potential" divisiveness in Scarsdale over the matter of the creche (Pet. Br. 44). However, in this case as in Lynch, and for the same reasons, "no inquiry into potential political divisiveness is even called for" (Lynch, slip op. 14). See also Mueller v. Allen, No. 82-195 (June 29, 1983), slip op. 14-15 n.11. Indeed, in the context of private applications for use of public land, the government has an affirmative obligation to protect unpopular speakers, even if their presence on public land is "divisive." In any event, it seems virtually certain that neutral rules for the use of Boniface Circle, such as are permitted under the judgment below (see pages 21-24, infra) would more effectively dampen controversy over this issue than would excluding the nativity scene because of its religious message. /10/ 4. Official Secular Purpose. Petitioners observe (Br. 46) that in Lynch the Pawtucket officials defended their decision to sponsor a nativity scene on the basis of legitimate secular objectives; here, the Scarsdale officials neither assert nor acknowledge any such purpose. But this is attributable solely to the fact that the Village officials here are opposed to display of the creche. Government officials attempting to justify content-based discriminations among forms of symbolic speech on the ground that to allow religious expression would violate the Establishment Clause should not be allowed to prove their point simply by failing to assert a secular purpose. Plainly -- whether Village officials have asserted it or not -- there is a legitimate secular purpose to allowing respondents access to Boniface Circle. Both the district court (Pet. App. 51a) and the court of appeals (id. at 16a) so found. To allow citizens to express themselves expands the scope of free expression and communication of ideas; to permit holiday displays promotes the spirt of the season. II. THE JUDGMENT OF THE COURT OF APPEALS LEAVES THE VILLAGE FREE TO ADOPT NEUTRAL RULES UNDER WHICH IT COULD EITHER PERMIT OR EXCLUDE RESPONDENTS' CRECHE A. Petitioners Mischaracterize The Opinion And Judgment Of The Court Of Appeals; The Court Did Not "Compel" The Village To Authorize Display Of A Creche In Boniface Circle Petitioners' first question presented (Br. i) is whether a municipal governing board should be "compelled" to allow placement of a creche in a public park for the two-week Christmas season. They repeat this formulation, with some variation, numerous times in their brief. See Pet. Br. 13, 14, 15, 16, 25, 35, 40, 41, 47, 48. At pages 40-41, they purport to summarize the court of appeals' opinion in three points, the third one of which is (id. at 41 (emphasis in original)): (iii) Therefore, since Pawtucket's officials were allowed in Lynch to display a creche, Scarsdale's Trustees are compelled under Widmar to permit one in Boniface Circle. This mischaracterizes the court of appeals' judgment and opinion; nowhere in petitioner's brief is the court's actual holding or judgment quoted, or even mentioned. The court's holding is stated at Pet. App. 24a: we take care to emphasize the narrowness of our ruling and hold only that the Village would not contravene the establishment clause by allowing the display of a creche at Boniface Circle, a traditional public forum, for a period of approximately two weeks during the Christmas holiday season. The court's judgment is stated at Pet. App. 25a: We remand for entry of an injunction prohibiting the Village from relying on the establishment clause as a reason for prohibiting the erection of a creche at Boniface Circle, a traditional public forum, for a period of approximately two weeks during the Christmas holiday season; for action regarding a disclaimer sign or signs; and for other such action as in consistent with our determination herein. The court emphasized, also, that the "problem" with the Village's position was only that the prohibition was "content-based," and that its ruling "does not affect the ability of the Village to establish reasonable time, place and manner restrictions regarding the use of its public properties, including Boniface Circle" (id. at 24a-25a). /11/ In light of this holding and judgment, it is apparent that petitioners have misstated the question presented. The court of appeals did not "compel" the Village to permit the creche on Boniface Circle, but merely required that the Village consider respondents' application without relying on an erroneous legal ground for denial. It is on this basis that we urge affirmance of the judgment below. B. Under The Judgment Below, The Village May Adopt Neutral Rules That Might, Or Might Not, Exclude Respondents' Creche Under the judgement of the court of appeals, the Village is free to adopt neutral rules to govern use of Boniface Circle for expressive activities or symbolic speech. Petitioners would be able to make precisely the distinction -- between live speech and unattended structures -- that they have contended is central to this case (see Pet. Br. 27-31). This common-sense distinction need not be made mandatory on all governments (under either Establishment or Free Speech Clauses); the Village of Scarsdale can, if it chooses, adopt the distinction of its own accord and discretion. In this respect, we agree with petitioners that Widmar v. Vincent, supra, is not on all fours with this case. In Widmar, there was no content-neutral distinction that could be drawn between the activities of the student plaintiffs and the activities of other student groups permitted to meet. The students sought equal treatment within the very terms established by the University to govern the forum. In the absence of an Establishment Clause justification for forbidding religious speech on campus in Widmar, therefore, the University was wholly without a reason to disallow it. /12/ Here, in contrast, the "speech" -- display of a creche -- is different in kind from any other form of speech permitted by the Village in Boniface Circle. The Creche Committee is the only group ever permitted by Scarsdale to maintain an unattended structure on Boniface Circle for any extended period of time. If the Village chooses to adopt neutral rules that would have the effect of excluding the creche -- along with all comparable unattended symbols -- from the park, we believe it should be allowed to do so. /13/ A distinction between the live speech activities of individuals and the placement of unattended symbols in a small, open, and uncluttered park like Boniface Circle is surely sustainable as a reasonable time, place, and manner restriction. In Members of the City Council v. Taxpayers For Vincent, No. 82-975 (May 15, 1984), slip op. 19, this Court distinguished between circumstances in which "individual citizens were actively exercising their right to communicate directly with potential recipients of their message," where the expressive "conduct continued only while the speakers or distributors remained on the scene," and the circumstances of that case, where the petitioners sought to post "temporary signs throughout an area where they would remain unattended until removed." See also Clark v. Community for Creative Non-Violence, slip op. 8 ("we seriously doubt that the First Amendment requires the Park Service to permit a demonstration * * * involving a 24-hour vigil and the erection of tents to accommodate 150 people"). Such a distinction would serve governmental interests in two important respects, and thus should be sustained in this context as a reasonable time, place, or manner regulation. First, an unattended structure monopolizes space in a way that live people do not; it sits there, unmoving, for as long as it is permitted. This interferes with other potential uses of the park and also injures the park's appearance. Live speakers tend to be more temporary and tend to move about; they are less likely to "appropriate" space for their own exclusive use for an extended period of time. Second, in the absence of individuals engaging in expressive conduct, a fixed, unattended structure may in some contexts be more likely to be viewed as communicating the government's own views. As the district court observed (Pet. App. 56a), if "there are no persons present to whom the receiver of the * * * message can attribute the speech, the possibility that those receiving the message will assume it is supported by the state is particularly present." The government's legitimate interest in maintaining an appearance -- as well as the reality -- of neutrality may therefore be advanced by such a distinction. We agree with petitioners (Br. 27-31) that classification of a parcel of public property as a "public forum" does not end the analysis; the further question is what are reasonable terms for the use of the forum. Although parks, streets, and sidewalks are presumptively "public forums" for certain traditional activities (speaking, leafletting, or soliciting by individuals) (Hague v. CIO, supra), they should not therefore be considered open for uses that are incompatible with their basic character. No one would suggest that there is a right to erect a billboard in Central Park or to stage a rally in a bird sanctuary. The best indicator of the limits that may reasonably be imposed on access to the forum -- in the absence of written policies -- are the actual character and historical uses of the location. Boniface Circle is a small park, with traffic and safety problems, unsuitable for many forms of activity involving crowds or movements of people. The record clearly shows that most requests by private groups to use the park have been denied, for a variety of reasons or for no reason at all. The fact that no private group (other than the Creche Committee) has ever been granted the right to erect and maintain an unattended structure in Boniface Circle for any extended period of time stands as a powerful reason to support the reasonableness and neutrality of a policy barring all unattended structures. C. Neutral Rules For The Use Of Boniface Circle Would Protect The Village's Legitimate Interests Without Discriminating Against Religious Or Other Controversial Speech Petitioners begin the discussion (Br. 16) of their argument against being "compelled" to allow the creche with the observation that this issue is one of First Amendment law generally, and only incidentally of the Establishment Clause. This is because petitioners' interests are essentially unrelated to the religious character of the proposed display; the Village is equally concerned about other fixed, unattended symbols or structures. As petitioners express the point (Br. 16), the court's analysis has resulted in a ruling that today compels (sic) the Village to allow a Nativity scene to stand in a park at the Village center, and tomorrow, on the same free speech principle, will compel a place for a swastika, a hammer and sickle, vulgar signs and comparable varieties of symbolic 'speech.' See also id. at 14, 24, 30, 31. This suggests that the answer to petitioners' perceived problem is not to be found in the Establishment Clause. Even if they were correct that the Establishment Clause prohibits the display of religious symbols of this sort, petitioners would still face the problem of unattended swastikas, hammer and sickles, burning crosses, and so forth. This case does not, therefore, require the Court to grapple with the difficult question of whether the government is ever justified in treating religious expression differently from other forms of expression in order to preserve an appearance of separation of church and state in excess of that required by the Establishment Clause. Pet. Br. 37-39, 47-48; see Widmar v. Vincent, 454 U.S. at 276; McDaniel v. Paty, 435 U.S. 618 (1978). We submit that, under the court of appeals' judgment, neutral rules for the use of Boniface Circle can fully vindicate the Village's legitimate interests. /14/ An evenhanded distinction between unattended structures and live forms of expressive activity would enable petitioners to protect each of the legitimate Village interests they assert in their brief, without the need for discrimination against religious speech. See Pet. Br. 14, 31-39. Since petitioners have acknowledged that it is only the presence of unattended symbols that creates, in their view, an appearance of governmental support for the symbolic message (id. at 25, 28) such a distinction would enable the Village to avoid coerced support for sectarian activities (id. at 14, 32-35). It would enable the Village to avoid "favoritism, or the appearance of favoritism, toward one sectarian position" (id. at 14, 35-37); indeed, neutral rules would perform this function far better than would petitioners' own position that religious speech can be singled out for different -- i.e., disfavored -- treatment. The same holds true for petitioners' professed interest (id. at 14, 37-39) in "steering clear of an Establishment Clause violation in 'letter or spirit.'" Attempting to decide which symbols are "religious" -- and which are "wrapped in the shared and approving sentiments of the community" (id. at 19) -- would entangle the Village in religious determinations far more profoundly than would administration of a neutral system. See Fowler v. Rhode Island, 345 U.S. 67 (1953); Cantwell v. Connecticut, 310 U.S. 296 (1940). Neutral principles would thus serve the Village's interests better than petitioners' proposed solution of allowing (or compelling) the Village to discriminate among park usage requests on the basis of the religious content of their speech. Neutral principles would provide a means for dealing with other, non-religious, forms of symbolic speech -- swastikas, burning crosses, and the like -- that the Village finds equally troubling. Neutral principles are also far less likely to run afoul of the Constitution. To treat religious expression by private individuals differentially necessarily raises concerns under the Free Speech, Free Exercise, and Establishment Clauses of the First Amendment, as well as the Equal Protection strictures of the Fifth and Fourteenth Amendments. This Court has rejected every attempt by government, to date, to relegate religious speech by individuals to a disfavored status, despite the fact that in every such case it could be argued that to do so would enhance the Establishment Clause value of separation between church and state. See, e.g., Widmar v. Vincent, supra; McDaniel v. Paty, supra; Niemotko v. Maryland, supra; cf. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981). Petitioners do not make a strong case for entering those perilous waters. Since neutral time, place, and manner restrictions would fully vindicate the Village's legitimate interests, there is no need in this case for an expansive interpretation of the Establishment Clause, or for a doctrine permitting the Village to discriminate on the basis of the religious content of proposed displays. The judgement below is fully responsive to the Village's concerns, and leaves primary discretion to control the uses of the park to the Village Board of Trustees, where it belongs. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General PAUL M. BATOR Deputy Solicitor General MICHAEL W. MCCONNELL Assistant to the Solicitor General DECEMBER 1984 /1/ The National Park Service recently decided to include a privately-owned nativity scene in this year's annual government-sponsored Christmas Pageant for Peace, which takes place on public park land (the Ellipse) immediately south of the White House. The practice of including a nativity scene in the Pageant was discontinued in 1973, as a result of Allen v. Morton, 495 F.2d 65 (D.C. Cir. 1973). We do not believe that the Court's resolution of the instant case is likely to affect the Park Services's decision, which is similar in most relevant respects to the display by the City of Pawtucket of a nativity scene in its annual Christmas celebration, upheld in Lynch v. Donnelly, No. 82-1256 (Mar. 5, 1984). /2/ The record shows that the Board of Trustees even denied an application by the Red Cross to erect a symbol in Boniface Circle, stating that "it would set a precedent and requests from similar organizations could not reasonably be denied" (Pet. App. 43a n.8). /3/ Although there are two separate groups of respondents, they desire to display only one creche. The "Citizens Group" has stated that it would withdraw its application if the "Scarsdale Creche Committee" is again authorized to display its creche. Citizens Group Br. in Opp. 5 n.2. /4/ The district court rejected respondents' free exercise and equal protection claims. Pet. App. 39a, 60a. /5/ The court noted that the government would be involved with religion if it granted the applications of religious groups, and also if it were required to determine whether symbols are "religious" for purposes of excluding them. Pet. App. 52a. /6/ The court of appeals also remanded for the purpose of "action regarding a disclaimer sign or signs" and for "other such action as is consistent with (its) determination." Pet. App. 25a. /7/ The court in Allen v. Morton, supra, held that government involvement with a nativity scene in the government-sponsored Christmas Pageant for Peace violated the Establishment Clause. In this respect, we believe that Allen was effectively overruled by Lynch v. Donnelly, supra. However, neither in Allen nor in any other litigation of which we are aware, until the district court decision below, has it been held that the government is barred by the Establishment Clause from granting permission to a bona fide private group, on neutral terms, to use public land for the temporary display of a religious symbol during the religious holiday season. /8/ Cf. FCC v. League of Women Voters, No. 82-912 (July 2, 1984) (restrictions on editorializing by federally-subsidized public broadcasters held unconstitutional despite Congress's intention "to avoid the appearance of government sponsorship of a particular view or a particular political candidate" (slip op. 6 (Rehnquist, J., dissenting)). /9/ Petitioners repeatedly state (Br. 7, 13, 17-18, 21, 32, 42, 45) that respondents' reason for wishing to display the creche in Boniface Circle, rather than on private land, is to create "the appearance of endorsement, an 'aura' of public support" (id. at 13) for their religious message. The sole basis for this charge is a statement by the Creche Committee that it did not choose to display the creche on the property of various churches, in rotation, because this would undermine the creche's "ecumenical aspect" (Pet. App. 37a). It seems to us altogether understandable that a multi-faith committee would prefer not to display its nativity scene on the property of a church, where it would appear to belong to that church. This is a far cry from attempting to create the impression of government support for their religious views. In a larger sense, we are concerned that petitioners and the district court have distorted the "purpose" and "effect" inquiries under the Establishment Clause. The important point is that the government remain neutral; there is no call for judicial examination into the motives and reasons of private groups desiring to use public park land. The right of the people to use public parks for expressive activity does not depend upon what are their reasons for not using private land for the same purpose. The court of appeals quite properly treated this line of argument as irrelevant (Pet. Br. 13). /10/ The circumstances of this case provide further support, if any is needed, for the wisdom of this Court's decision not to treat "political divisiveness" as a separate ground for invalidation of practices of this sort. From the beginning of the Scarsdale creche display, the Village leaders have been sensitive to the concerns of the community over the display, forming committees to meet with persons of differing views and entertaining recommendations about how best to handle the matter. See Pet. App. 31a-32a. Until the late 1970s, the Board of Trustees was unanimous in its decisions regarding the creche. In 1976, a resident filed suit, unsuccessfully, to bar the creche (id. at 32a), and from that point on, the controversey became both more legal and more contentious. We can agree that one of the purposes of the Establishment Clause was to defuse religious divisiveness in the political arena; it is not clear that that objective is furthered by removing local disputes to the federal courts and escalating them into constitutional contests. A constitutional rule that opponents of a government decision are entitled to overturn the majority will in the courts, provided there is sufficient "divisiveness" over the decision, would have the effect of stimulating divisiveness, not of reducing it. /11/ The court of appeals thus rejected the district court's erroneous holding (Pet. App. 47a) that the Village could not defend its decisions on the basis of reasonable time, place, or manner restrictions because the Village had not promulgated "narrowly tailored regulations." A local community is not required to promulgate regulations for the governance of its affairs; it may proceed on a case-by-case basis, provided its decisions are not standardless and are in furtherance of legitimate governmental interests. /12/ This case is also distinguishable from Bender v. Williamsport Area School District, 741 F.2d 538 (3d Cir. 1984), petition for cert. pending, No. 84-773, for the same reason. In Bender, unlike this case, the school officials asserted no reason for denying access to a student religious club other than their lawyers' opinion that to do so would violate the Establishment Clause. See Br. for the U.S. as Amicus Curiae, Bender v. Williamsport Area School District, No. 84-773. A copy of that brief has been provided to counsel for the parties in the instant case. /13/ The Board of Trustees has permitted unattended symbols and structures to be displayed on other public property in the village (Pet. App. 4a), and respondents have indicated their willingness to display the nativity scene in an alternative location (id. at 47a & n.12). Given this history, it is apparent that an exclusion of unattended symbols from all Village land might be less desirable to the Village and more difficult to sustain as a reasonable time, place, or manner regulation. It is therefore possible that, upon remand and reconsideration of respondents' application by the Board, an agreeable site for the creche, away from Boniface Circle, may be found. /14/ To the extent that the Village's interest is in being able to discriminate against some forms of speech within Boniface Circle because of their "controversial," "unsuitable," "repugnant," "objectionable," "contentious," or "hateful" character in the eyes of the majority (see Pet. Br. 14, 16, 19, 20, 25 & n.17, 26, 30, 31, 33, 34 & n.22, 35), that interest cannot constitutionally be vindicated, for it runs counter to First Amendment principles applicable to a public forum.