concurring in part, dissenting in part, and concurring in the judgment:

I concur in Parts II.C.2 and II.C.3 of the majority opinion, and I concur in the judgment. I cannot join, however, the majority’s treatment of the state and federal Establishment Clause issues presented by this appeal.

I agree with the majority insofar as it concludes that the Jewish Congress has raised a triable issue of fact as to whether the City of Beverly Hills has favored Chabad of California in its administration of holiday displays in Beverly Gardens Park. The federal Establishment Clause, among other things, forbids governmental entities from giving sectarian religious groups preferential access to public property. Capitol Square Review & Advisory Board v. Pinette, — U.S. -, -, 115 S.Ct. 2440, 2448-49 , 132 L.Ed.2d 650 (1995) (plurality opinion); see, e.g., County of Allegheny v. ACLU, 492 U.S. 573, 599-600 , 109 S.Ct. 3086, 3104-05 , 106 L.Ed.2d 472 (1989) (county impermissi-bly favored sectarian religious speech by giving it preferential access to the “Grand Staircase” of the county courthouse). It appears from the record that the City of Beverly Hills may have manipulated its holiday display policy to favor Chabad and its two-and-one-half ton menorah. This the City of Beverly Hills may not do.

The majority, however, goes on to suggest that even if the City of Beverly Hills did not actually favor Chabad by giving it preferential access to Beverly Gardens Park, there still is a material issue of fact as to whether a reasonable observer would “identify the City as the menorah’s sponsor.” Maj. op. at 1546. The majority assumes that government may violate the Establishment Clause by tolerating religious speech on government property, even when it grants permission to speak in an entirely nonpreferential manner. This is where the majority and I part company. Its peculiar use of a “perceived endorsement” test has no place in this litigation. Here a city has allowed a private group to use one of its parks for religious expression. Such action offends the Establishment Clause only if the city in allowing the speech has favored religion over nonreligion or one religious sect over another. 1 See Capitol Square Review & *1551 Advisory Board v. Pinette, — U.S. at -, 115 S.Ct. at 2446-49 (plurality opinion). If the City has not engaged in such favoritism, it has not violated the Establishment Clause. Id.

It makes no difference that some hypothetical observer might mistake — even reasonably — the private religious expression as officially sponsored. Indeed, if a state were to ban private religious speech from an otherwise open forum on the ground that some observer might wrongly suspect official sponsorship, I am confident we would find a violation of the Free Speech Clause, since the exclusion would constitute content discrimination. See, e.g., Capitol Square Review & Advisory Board v. Pinette, — U.S. at -, 115 S.Ct. at 2446-50 (so holding) (plurality opinion); Lamb’s Chapel v. Center Moriches Union Free School Dist., — U.S. -, -, 113 S.Ct. 2141, 2147-48 , 124 L.Ed.2d 352 (1993) (school district violated Free Speech Clause by denying application to use school facilities solely because of the applicant’s religious viewpoint); Widmar v. Vincent, 454 U.S. 263, 274 , 102 S.Ct. 269, 276 , 70 L.Ed.2d 440 (1981) (public university may not rely upon Establishment Clause to deny religious groups access to open forum).

The majority would relegate private religious expression to second class status, banishing it from the public sphere so long as some observer could mistakenly believe that the government itself was speaking. Yet, “[o]ur 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.” Capitol Square Review & Advisory Board v. Pinette, — U.S. at -, 115 S.Ct. at 2446 (Scalia, J., writing for the Court). I agree that government may not, consistent with the Establishment Clause, favor or promote sectarian religious expression, but I cannot agree that private religious speech is subject to veto by those who see official favoritism where there is none.

I am also troubled by the majority’s dubious application of its perceived endorsement test to the facts of this case. The majority concludes that a “reasonable observer” might mistakenly perceive the menorah in Beverly Gardens Park as officially sponsored. Yet, right next to the menorah is a sign that reads, in large, block print:

THIS MENORAH IS SPONSORED BY CHABAD OF CALIFORNIA. IT IS NOT SPONSORED OR FUNDED BY THE CITY OF BEYERLY HILLS.

It seems to me that a reasonable observer would have little trouble divining the meaning of the disclaimer: Chabad, not the City of Beverly Hills, is the voice behind the menorah. Even if I thought that the perceived endorsement test had any application to private religious speech, I could not agree that there was any question here as to the perceived identity of the menorah’s sponsor.

. I do not take lightly the majority’s accusation that I misread Capitol Square. See maj. op. at 1546 n.10. The majority pretends that Capitol Square “held” that the perceived endorsement test applies to private religious speech. For this “holding" the majority relies on the concurring opinions by Justices O’Connor, Souter, and Breyer, and the dissenting opinions by Justices Stevens and Ginsburg. See Capitol Square, - U.S. at -, -, -, -, 115 S.Ct. at 2451-57, 2457-62, 2464-73 , 2474 — 75 (O'Connor, J., Souter, J., and Breyer, J., concurring; Stevens, J., Ginsburg, J., dissenting). *1551 As the majority understands Capitol Square, these five justices agreed upon a proposition of law (the "endorsement” test) but differed on its application. This simply is not so.

I quite agree that Justices O’Connor, Souter, and Breyer would apply something very much like the "reasonable observer” test that the majority wishes to apply here. Id. at -, -, 115 S.Ct. at 2454-55, 2457-58 (O’Connor, J., Souter, J., and Breyer, J., concurring). However, Justice Stevens, whose vote the majority also counts, would apply a much different test. Id. at-& n. 5, 115 S.Ct. at 2466 & n. 5 (criticizing Justice O’Connor's "reasonable observer” test as too tolerant of religious expression in public spaces). As for Justice Ginsburg, it is not at all clear exactly what kind of test she would apply. Id. at -, 115 S.Ct. at 2474-75 (Ginsburg, J., dissenting). One might guess from reading between the lines of her dissent that she would apply some version of the perceived endorsement test, but she never details the test she thinks appropriate for private speech cases.

In short, despite what the majority says, no five justices in Capitol Square agreed on a proposition of law that we are bound to apply in this case. I would take the approach detailed by Justice Scalia in his opinion for the plurality. Id. at -, 115 S.Ct. at 2442-50 (opinion of Scalia, J.). The majority rejects this approach, but never explains why, preferring instead to rely on its view of Capitol Square’s "holding.”