dissenting:
The majority holds that a creche, displayed on what is admittedly a public forum, must be removed because its placement gives the appearance of governmental “endorsement” of religion. While I agree with much of the majority’s legal interpretation of the Allegheny County opinion, I do not feel that the mandate of Allegheny County, reaches the situation present here, and I, therefore, respectfully dissent.
The majority begins its analysis of the case by characterizing Allegheny County as “clarifying] the involved and delicate Establishment Clause balancing act required when evaluating a religious display in a public context.” Supra at 956. I cannot agree with such a characterization; indeed in Allegheny County, the Supreme Court noted that the creche involved there, placed as it was inside the stairway of the courthouse, did not “raise the kind of ‘public forum’ issue” involved in cases such as Widmar and McCreary. 109 S.Ct. at 3104, n. 50. While later in their opinion, the majority takes note of this distinction — -at page 958 — they then seem to ignore such distinction and accept Allegheny County as controlling in all respects.
While I do not take lightly the potential Establishment Clause problems this case presents, I feel that the location of the creche here involved on an admitted public forum is a factor that merits closer examination. The Free Speech Clause of the First Amendment has been the subject of numerous cases. As noted by the district court and the majority, the government can enforce regulation of “speech in a public forum only when such regulation is narrowly drawn to protect a “compelling state interest.” 1 The analysis employed by the district court, and approved by the majority, uses the “endorsement” test of Allegheny County and applies it to the Free Speech “compelling interest” test. While there is a certain logic to the usage of these two First Amendment tests, I do not feel that the merger of these standards comports with the spirit and intent of the protection of free speech.
It is undisputed that religious speech is protected speech. See Widmar, 454 U.S. at 269, 102 S.Ct. at 2, and cases cited therein. In this case, the county government recognized that fact and, consistent with its pre-existing policy of allowing any *961group to utilize the lawn for a display, allowed the Jaycees to use the public forum. See J.A. 12-14. By ordering removal of the creche, the majority and the district court are forcing the county to advance the rights guaranteed by the Establishment Clause at the expense of the right of free speech. I feel that when these competing rights are involved, a strict application of Allegheny County’s endorsement test is inappropriate; the Supreme Court made it clear in footnote 50 of Allegheny County that it was not ruling on a situation in which these two fundamental rights conflicted.
In the absence of a mandate from the Supreme Court on the “head-to-head” clash of these two competing First Amendment rights, I feel that this court is faced with two alternatives. One option, which I would adopt, is to move away from a strict application of the “endorsement” test found in Allegheny County, and to incorporate the public forum factor into the calculus of the “Establishment” equation. This would involve even more of a “case-by-case” analysis, but the Court has made it clear that such a fact specific evaluation must be employed in a case such as this. 109 S.Ct. at 3103. Indeed, following the language of Allegheny County, “the effect of a creche display turns on its setting.” Id. I submit that, while on the facts of Allegheny County the Court admittedly was referring to the secular trappings surrounding the religious displays, its specific refusal to reach the public forum conflict suggests that all courts must also consider the location of the display. In the case at bar, the “setting” is a public forum, a “setting” traditionally afforded great protection by the Constitution and the courts. On the facts of this case, therefore, I feel that the public forum setting of an admittedly religious display must be given as much consideration as the secular trappings surrounding the menorah in Allegheny County,2 Applying such an analysis, I submit that the Establishment Clause has not been violated. Viewing the creche and the disclaimer sign alongside,3 at a location where other groups have been allowed to convene and/or erect displays, should cause neither the court nor the public to believe that Albemarle County was endorsing the Christian religion.
Should this modification of the “setting” test be incorrect, I still must respectfully dissent from the majority’s conclusion and offer another alternative. Upon finding an Establishment Clause violation, the majority here then moved to the Free Speech Clause of the First Amendment. They found the violation of the Establishment Clause to be a “compelling state interest” and then held that the “least restrictive means” of protecting the state interest was total exclusion of the creche from the Char-lottesville lawn. Having already voiced my disagreement with the finding of an Establishment Clause violation, I must agree that, if such a violation is present, surely it would qualify as a “compelling state interest.” It is with the majority’s holding that complete exclusion of the creche is the least restrictive means of accommodating such a state interest that I also disagree.
The majority gives short shrift to the issue of disclaimer signs and states, “[i]t remains to be seen whether any disclaimer can eliminate the patent aura of government endorsement of religion.” Supra at 958 (emphasis in original). With that statement, the majority finds it inescapable that the ordinary viewer would find the display, with or without the disclaimer sign, to be an endorsement of religion and, therefore, impermissible. In making these findings, the majority quotes from, and presumably relies on, Allegheny County. In Allegheny County, however, the sign was not truly a “disclaimer” sign. It stated, “This Display Donated by the Holy Name Socie*962ty.” Allegheny County, 109 S.Ct. at 3094. The language of Allegheny County’s sign “len[t] [the government’s] support to the communication of a religious organization’s religious message.” Allegheny County, 109 S.Ct. at 3105. It was this “support” the Supreme Court found to be tantamount to endorsement.
The disclaimer sign posted on the Albe-marle County lawn read, “Sponsored and Maintained by the Charlottesville-Albe-marle Jaycees, Not by Albemarle County.” The majority does note that the instant sign is more “unequivocal than those in Allegheny County.” Supra at 958. It does not, however, elaborate on the major difference in the language of the disclaimers. Anyone who read the Albemarle sign knew that the county did not “endorse” the creche scene. Indeed, the Supreme Court noted in Allegheny County that, “[w]hile no sign can disclaim an overwhelming message of endorsement ... an ‘explanatory’ plaque may confirm that in particular contexts the government’s association with a religious symbol does not represent the government’s sponsorship of religious beliefs.” Id. at 3114-15 (citations omitted). If the wording on any “explanatory plaque” could convey to the reader that a government did not sponsor a certain religion or religious belief, certainly the unequivocal language used by Albemarle County should suffice.
The majority notes that the relatively small size of the disclaimer sign “mitigates its value.” Supra at 958. I agree that the size of any disclaimer sign is an important factor in determining the effectiveness of the government’s disavowal of a “religious” message. The district court notes that the first sign was 18" x 6" and was replaced by a “larger” sign. J.A. at 118— 19. No reference is made in the record as to the second sign’s exact size, and there was some dispute about that issue at oral argument. Rather than total exclusion of the creche, I feel that a remand to the district court to direct the county to erect a sign of sufficient size to make it clearly apparent to every viewer that the creche was not endorsed by the county would be one method that would legally meet the “least restrictive means” test, and thus avoid allowing Establishment Clause rights to unnecessarily trammel the right of free speech.
While I agree that not every sign effectively disclaims governmental involvement in “religious” displays in every “setting,” certainly the language in this disclaimer on a sign of appropriate size, under the facts of the “setting” in this particular case, will sufficiently convey a message of “non-endorsement” to anyone who reads it, and, thus, the delicate Establishment Clause “balancing act test” will be met.
. The district court found the Albemarle County Courthouse lawn to be either a traditional public forum or a designated public forum. J.A. at 152. As noted by the district court, regardless of the characterization as a traditional public forum or a designated public forum, the test is the same. See Cornelius v. NAACP Legal Def. and Educ. Fund, 473 U.S. 788, 780, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985).
. Additionally, the county erected a disclaimer sign next to the creche proclaiming that the creche was sponsored by a civic group and not by the county itself. The presence and content of the sign should also be factored into the court's study of the entire "setting.” The disclaimer sign is discussed more fully on pages 961 through 962 of this opinion, infra.
. No reference has been found in the record of the exact size of the second disclaimer sign. It was, however, "larger” than 18" X 6". J.A. at 118-19.