Dueling Values: Balancing Competing Constitutional Interests in Pinette

In Capitol Square Review and Advisory Board v. Pinette, the United States Supreme Court held that a local review board could not refuse the private placement of a large cross (by the Ku Klux Klan) on a “public forum” adjacent to the state capitol, notwithstanding the Board’s professed concern that such a placement would violate the Establishment Clause. A public forum is government property, such as a park or the square at issue in Pinette, which has by tradition or law been dedicated to public use for the exchange of ideas and information. On such a public forum, the state may not impose access restrictions based on the content of the speech in question unless the restriction is narrowly tailored to meet a compelling government interest. Thus, the Justices in Pinette considered whether the Board’s articulated desire to avoid violating the Establishment Clause met this stringent standard so as to justify the exclusion of the cross in question. The majority concluded that it did not.This result is not particularly surprising considering the Court’s decisions requiring that religious groups be given equal access to government property that has been made generally available for private use, but the case fractured the Court badly and produced no majority opinion. The difficulty with the case, it seems to me, lies not only in its doctrinal complexity or in deeply felt ideological differences between the Justices, but also in the fact that it required the Court to weigh competing constitutional rights claims: the free speech rights of the Klan to equal access to a public forum and the rights of the public to be free of a government establishment of religion.Cases that, like Pinette, involve conflicting private constitutional rights claims present a distinctive set of problems which have confounded the Court. In the typical constitutional rights case, the question is whether government action that allegedly burdens a constitutionally protected interest can be justified because the action in question furthers a sufficiently important government purpose. The Court has developed and applies a comprehensive framework for weighing individual rights claims against such public interests, and (despite occasional disclaimers of its competence to decide public policy) has exhibited little discomfort in weighing the public interest against individual rights. But in cases requiring the resolution of conflicting individual rights claims, the Court has had considerably greater difficulty developing a coherent approach to weighing the competing constitutional concerns.Pinette is an excellent illustration of this phenomenon. Although there was a clear conflict of constitutional values in Pinette, none of the Justices confronted that conflict or offered any coherent explanation of why one set of values should take precedence over the other. Instead, each of the Justices adopted a definitional approach that effectively eliminated one set of values from consideration by denying the existence of any constitutionally protected right. To be sure, it is always necessary to decide at the threshold whether the constitutional values implicated in a given case are sufficiently strong to justify recognition of a claimed constitutional right. But the definitional approaches used in Pinette are ultimately unsatisfying because they fail to give an adequate account of the constitutional values at stake and divert attention from real issue in the case, which is how to balance those competing constitutional values.In this essay, I will consider the problem of balancing competing constitutional rights claims, using Pinette as an example. After briefly describing the conflicting rights claims and constitutional values at issue in Pinette, the essay engages in a fairly detailed analysis of the Justices’ various positions in Pinette. This analysis demonstrates that each of the Justices definitionally excluded one of the rights claims at issue, and thus avoided weighing the competing constitutional values in the case. These definitional analyses, however, did not give a satisfactory account for the rejection of the claimed right, and thus failed to explain why it was outweighed by countervailing constitutional interests. The essay then discusses other types of cases that present conflicting rights claims - cases involving the tension between the religion clauses and state action cases - which reflect a similar pattern of definitional reasoning to avoid balancing competing constitutional values. Finally, the essay considers alternative approaches to resolving conflicting rights claims, including explicit balancing and deference to the political process, and concludes that a combination of definitional reasoning, explicit balancing, and deference to the political process would improve the analysis of these difficult cases.