concurring in part and dissenting in part:
I agree that the Rotunda is a created public forum. I also agree that the State has identified a compelling governmental interest for its content-based restriction on Chabad’s religious speech. I disagree, however, with the extent to which, in finding that compelling interest, the district court discounts the Rotunda’s status as a public forum. More disturbingly, the district court, and thus the majority, conspicuously neglects to hold the State to the second part of its burden under strict scrutiny — proving that its action is narrowly tailored to the compelling state interest it asserts. I therefore respectfully dissent from the affirmance by the majority of the *1396district court’s grant of summary judgment. I would remand the case for the district court to determine whether the State has shown that completely banning the menorah display is the least restrictive way for the State to avoid violating the Establishment Clause.
I.1
Central to this case is the fact that the State has made the Rotunda a public forum for First Amendment purposes. The public-forum setting is significant for two reasons. First, it brings into the constitutional equation Chabad’s First Amendment rights to free speech and the free exercise of religion. As the district court correctly explains, to constitutionally impose a content-based restriction on private speech in a public forum, the State must satisfy the two criteria of strict scrutiny. It must furnish a compelling governmental interest for the restriction and must show that the restriction is narrowly tailored to achieving that interest. The State bears the burden of proving both elements. See, e.g., Burson v. Freeman, — U.S. -, 112 S.Ct. 1846, 1851, 119 L.Ed.2d 5 (1992). These principles apply to religious and nonreligious speech alike. See Widmar v. Vincent, 454 U.S. 263, 269-70, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981).
The public-forum setting does more, however, than merely trigger strict scrutiny: It also is an important factor in determining whether strict scrutiny is satisfied — whether the State’s asserted interest in restricting particular private religious speech in a public forum is in fact sufficiently compelling to satisfy the first prong of strict scrutiny. The majority and the district court unfortunately fail to recognize this second way in which the public-forum context affects the constitutional analysis.
A.
The district court properly points out that avoiding a violation of the Establishment Clause is a compelling state interest. See ante at 1391 (citing Widmar, 454 U.S. at 271, 102 S.Ct. at 275). The fundamental question underlying the first prong of strict scrutiny in this case, therefore, is whether the State would offend the Establishment Clause if it were to permit the menorah display.
The State violates the Establishment Clause when a reasonable observer would perceive the State’s actions as endorsing religion. See County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 620, 109 S.Ct. 3086, 3115, 106 L.Ed.2d 472 (1989); Lynch v. Donnelly, 465 U.S. 668, 690, 104 S.Ct. 1355, 1368, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring); Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).2 In the public-forum context, the State’s only act is establishing and implementing a gen*1397eral policy of granting private persons equal access to its public forum, a policy mandated by the Free Speech and Free Exercise Clauses of the First Amendment. See Widmar, 454 U.S. at 276, 102 S.Ct. at 277-78.3 In this case, for example, the State obviously does not seek to display the menorah. Nor does the State want to give Chabad special permission that it refuses other private speakers. The act the State claims would violate the Establishment Clause is permitting Chabad to disseminate its private message on the same terms the State has permitted numerous nonreligious groups to disseminate theirs. In cases like this, therefore, the pertinent Establishment Clause question is whether maintaining a policy of equal access to a public forum would create an impermissible perception of government sponsorship if a private organization were to display a religious symbol pursuant to that policy.
This question is fundamentally different from the pertinent question in non-public-forum cases, ones in which the government is the speaker or affirmatively promotes the religious speech. In those situations the relevant state act is the direct promotion of the religious message. Accordingly, the Establishment Clause inquiry focuses on whether the religious speech itself creates a perception of state endorsement. This distinction is important because it is far more likely that directly promoting religious speech will convey the notion that the State is supporting religion than will merely providing a forum for both religious and nonreligious speech. The Supreme Court implicitly acknowledged this difference in Allegheny County when it distinguished that case, in which the government directly associated itself with a religious display in the county courthouse, a non-public forum, from public-forum cases. See Allegheny County, 492 U.S. at 600 n. 50, 109 S.Ct. at 3104 n. 50.4 Of course, the physical context of the religious display, so central to the analyses of the Supreme Court in Allegheny County and the district court in this case, also is important in determining whether an equal-access policy creates a perception of state sponsorship of religion. The somewhat different focus in public-forum cases, however, requires the court to pay special attention to the history of the forum as a public one in addition to considering closely the display’s physical context.
In Widmar v. Vincent, supra, and Board of Education v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990), the Supreme Court identified two factors that are “especially relevant” when evaluating whether an equal-access policy sends a message of state sponsorship. First, the Court recognized that, by its very nature, a public forum generally does not “confer any imprimatur of state approval on religious sects or practices.” Mergens, 496 *1398U.S. at 248, 110 S.Ct. at 2371 (quoting Widmar, 454 U.S. at 274, 102 S.Ct. at 276). The Court explained that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Mergens, 496 U.S. at 250,110 S.Ct. at 2372 (emphasis in original). The second factor the Court stressed is the extent to which the forum is available to nonreligious as well as religious speakers. Widmar, 454 U.S. at 274, 102 S.Ct. at 277. The greater the access nonreligious speakers have to the public forum, the less likely it is that the reasonable observer would perceive that the government is endorsing religion when it allows religious speakers also to have access.
The district court in this case mentions Widmar simply to note that whether the forum is public “is only one factor to be considered” in determining whether the endorsement test is satisfied. Ante at 1395. The court quickly dismisses that factor, however, rejecting the notion that the setting’s history as a public forum affects the constitutional analysis. To the contrary, the court reasons, “[cjommon sense dictates that many of the persons who enter the Capitol Building and view the Chabad menorah would be unaware” of the volume of nonreligious speech the State has allowed there. Ante, at 1395. The problem with the court’s reasoning is that it runs contrary to the Supreme Court’s concept of the “reasonable observer.” In her concurring opinion in Allegheny County, Justice O’Connor, who first identified the views of the “reasonable observer” as the proper constitutional benchmark, see Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. 481, 493, 106 S.Ct. 748, 755, 88 L.Ed.2d 846 (1986) (O’Connor, J., concurring in part and in the judgment), explained that the reasonable observer is presumed to know the history of the forum’s use: The “ ‘history and ubiquity’ of a practice
... provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion.” Allegheny County, 492 U.S. at 630, 109 S.Ct. at 3121 (O’Connor, J., concurring). To hinge a speaker’s First Amendment rights on the limited relevant knowledge and experience of a casual or first-time visitor to the Rotunda would be to “create an obtuse observer’s veto [over private religious speech in a public forum], parallel to a heckler’s veto over unwelcome political speech.” Doe v. Small, 964 F.2d 611, 630 (7th Cir.1992) (en banc) (Easterbrook, J., concurring).
Of course, the fact that the setting is a public forum does not preclude the perception of government sponsorship of religion. To hold that it does would be to hold that the Free Speech and Free Exercise Clauses always trump the Establishment Clause, a proposition supported by neither the text nor the history of the Constitution. Religious speech may so dominate a public forum that a policy of equal access becomes indistinguishable from endorsement. See Widmar, 454 U.S. at 275, 102 S.Ct. at 277; Doe, 964 F.2d at 625 (Cudahy, J., concurring in the judgment). Likewise, when the public forum’s governmental context is especially pronounced, a perception might arise of a “mixed public/private message and messenger.” Doe, 964 F.2d at 628 (Flaum, J., concurring in the judgment). I simply stress two points: (1) the analytical focus in public-forum cases should be on the perception created by the State’s policy of equal access, not on the one created by the display per se;5 and (2) the fact that the government ordinarily is not deemed to endorse private speech made in a public forum is an important factor that must be carefully weighed along with the physical context in which the display exists.6
*1399When one frames the proper question and pays due regard to all relevant constitutional factors, it becomes an extremely close question whether the State would send an impermissible message of endorsement by allowing Chabad to display its menorah in accordance with the State’s policy of equal access. On the one hand, the State’s history of allowing in the Rotunda all kinds of religious and nonreligious speech is powerful evidence that the reasonable observer would not believe that the State endorses the messages it permits there. The reasonable observer, for example, probably would not believe that the State of Georgia endorses the views of the National Organization for the Reform of Marijuana Laws, a private group it has allowed to speak in the Rotunda. In addition, the fact that a majority of persons who use the Rotunda are nonreligious speakers further dilutes the perception of state sponsorship. On the other hand, the government presence in this particular public forum is unusually pervasive. Here, the setting is the seat of state government. The giant menorah, indisputably a religious symbol, would stand fifteen feet tall in the center of the Capitol’s chief public area for more than a week. Chabad’s proposed sign, “HAPPY CHANUKAH FROM CHA-BAD OF GEORGIA,” in no way disclaims state sponsorship. Because the menorah would be unattended most of the time, no countervailing perception of private sponsorship would be created. On balance, therefore, I agree with the district court that a perception of state endorsement of religion arises.7 As such, the State has overcome its first hurdle for summary judgment, identifying a compelling governmental interest for prohibiting the menorah display.
B.
Demonstrating a compelling state interest is only the first of two hurdles the State must overcome to survive strict scrutiny and justify infringing on the Free Speech and Free Exercise rights of a religious speaker in a public forum. “To survive strict scrutiny ... a state must do more than assert a compelling state interest — it must demonstrate that its law [or other action] is necessary to serve the asserted interest.” Burson, — U.S. at-, 112 S.Ct. at 1852 (emphasis added). A complete ban may be necessary in some circumstances, “but only if each activity within the proscription’s scope is an appropriately targeted evil.” Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 2503, 101 L.Ed.2d 420 (1988). In the instant case, therefore, the State may prevail only if it proves that completely banning the menorah display is necessary to avoid an Establishment Clause violation.
After explaining why the unattended menorah with no specific sign of disclaimer would violate the Establishment Clause, the district court jumps directly to the conclusion that the State is entitled to summary judgment. The court writes:
It is clear ... that Plaintiffs’ intended display of a fifteen-foot tall, unattended menorah in the Rotunda would result in a violation of the [Establishment [Cjlause. As such, Defendants have presented a compelling interest sufficient to restrict Plaintiffs’ First Amendment *1400speech. Therefore, Defendants are entitled to summary judgment....
Ante, at 1395. The court simply fails to complete the strict scrutiny analysis.8 It never considers that some action short of total prohibition might prevent the reasonable observer from perceiving that the State has endorsed the menorah display.
Completely banning the menorah display is not so obviously the least restrictive way for the State to avoid violating the Establishment Clause that we may assume such a finding is implicit in the district court’s grant of summary judgment for the State. A sign, for example, clearly explaining that the menorah belongs solely to Chabad, a private organization, and explicitly disclaiming state sponsorship, might prevent the reasonable observer from believing that the State endorses the display. At oral argument, Chabad acknowledged that it would be willing to erect an appropriate disclaimer sign. Significantly, in Allegheny County the Court stated that, although no sign can disclaim an “overwhelming” message of endorsement, an “explanatory plaque” may be sufficient to negate an implication of state endorsement otherwise arising. 492 U.S. at 619, 109 S.Ct. at 3114-15. When the setting is a public forum and the reasonable observer already would have a strong sense that the State does not endorse the private speech it allows there, a remedy short of total prohibition appears particularly appropriate. At the very least, the availability of other remedies seems to present a genuine issue of material fact.
II.
The district court failed to perform the “narrowly tailored” portion of the test of strict scrutiny. Accordingly, I would vacate the entry of summary judgment and remand the case to the district court for a determination whether the State has shown, as a matter of law, that completely banning the menorah display is the least restrictive way for it to avoid violating the Establishment Clause. See Doe, 964 F.2d at 622 (holding complete ban on religious display not narrowly tailored and remanding case); see also Smith v. County of Albemarle, 895 F.2d 953, 960 (4th Cir.) (affirming district court’s finding that complete ban was narrowly tailored), cert. denied, — U.S. -, 111 S.Ct. 74, 112 L.Ed.2d 48 (1990); Kaplan v. City of Burlington, 891 F.2d 1024, 1030 (2d Cir.1989) (finding complete ban narrowly tailored), cert. denied, 496 U.S. 926, 110 S.Ct. 2619, 110 L.Ed.2d 640 (1990). The State, of course, need not maintain the Rotunda as a public forum. “[A] State is not required to indefinitely retain the open character of [created public forums]” as it must with traditional public forums like streets and parks. Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983). As long as the State keeps the Rotunda open for public discourse, however, it may not discriminate in that forum against certain types of speech, religious or otherwise, unless it proves that such discrimination is necessary to serve its asserted governmental interest.
. I note, preliminarily, that this case should not be dismissed as moot, despite the fact that Cha-bad’s amended complaint seeks injunctive relief for Chanukah 1991. A case that otherwise is moot remains justiciable by the federal courts if (1) a reasonable expectation exists that the same complaining party will be subjected once again to the same challenged action and (2) the challenged action is too short in duration for the case to be fully litigated prior to the action's cessation or expiration. Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam) (citing Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam)). Chabad likely will again seek permission to display its menorah. Indeed, at oral argument it confirmed as much. Furthermore, if we were to dismiss the case as moot because the particular Chanukah in question has past, the unyielding nature of the calendar would preclude the litigation from being resolved on the merits: It would be difficult, if not impossible, for Chabad to request permission to display the menorah, to await a response from the State, to obtain a decision on the merits in the district court, and to obtain review in this court, all in the span of less than a year before the annual Chanukah observance comes and goes. Consequently, we properly address the merits of the case.
. Although Lemon, Lynch, and Allegheny County have been criticized by several justices, the Court recently declined to reconsider them. See Lee v. Weisman, — U.S. -, -, 112 S.Ct. 2649, 2655, 120 L.Ed.2d 467 (1992). Thus, the "endorsement" test remains the law in this circuit. See, e.g., Jager v. Douglas County Sch. Dist., 862 F.2d 824, 831 (11th Cir.) (quoting Wallace v. Jaffree, 472 U.S. 38, 56 n. 42, 105 S.Ct. 2479, 2489 n. 42, 86 L.Ed.2d 29 (1985)), cert. denied, 490 U.S. 1090, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989).
. Although the State need not retain nontraditional forums like the Rotunda as public forums indefinitely, as long as it does it may not deny particular speakers access to them unless such discrimination is necessary to serve a compelling governmental interest. See Perry Educ. Ass’n v. Perry Local Educators Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983).
. The Court made clear that the question of religious displays in a public forum is an open one:
The Grand Staircase does not appear to be the kind of location in which all were free to place their displays for weeks at a time, so that the presence of the creche in that location for over six weeks would then not serve to associate the government with the creche. Even if the Grand Staircase occasionally was used for displays other than the creche (for example, a display of flags commemorating the 25th anniversary of Israel’s independence), it remains true that any display located there fairly may be understood to express views that receive the support and endorsement of the government. In any event, the county’s own press releases made clear to the public that the county associated itself with the creche. Moreover, the county created a visual link between itself and the creche: it placed next to official county signs two evergreens identical to those in the creche display. In this respect, the creche here does not raise the kind of "public forum”issue, cf. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), presented by the creche in McCreary v. Stone, 739 F.2d 716 (CA2 1984), aff’d by an equally divided Court, sub nom. Board of Trustees of Scarsdale v. McCreary, 471 U.S. 83, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985) (private creche in public park).
Id. n. 50 (emphasis added) (citations partially omitted).
. The Second Circuit acknowledged this point in Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir.1989), cert. denied, 496 U.S. 926, 110 S.Ct. 2619, 110 L.Ed.2d 640 (1990), a case upon which the district court expressly relies. See id. at 1030 ("the City’s equal-access policy is incompatible with the Establishment Clause") (emphasis added).
. Indeed, in an earlier proceeding in this case, the district court held that "[ [p] ]ermitting reli*1399gious speech in a public forum in and of itself ■'does not confer any imprimatur of state approval on religious sects or practices’ any more than permitting political speech conveys governmental endorsement of a political group.” Chabad Lubavitch of Georgia v. Harris, 752 F.Supp. 1063, 1067 (N.D.Ga.1990) (quoting Kaplan, 891 F.2d at 1033 (Meskill, J., dissenting)) (motion for temporary restraining order). The court "reject[ed] the notion that the citizenry of Georgia are likely to mistake a menorah labelled as the property of Chabad for a state sponsored event.” Id.
. I recognize that this analysis is extremely fact specific. As the district court acknowledges, different combinations of disclaimer signs, location, accoutrements, menorah size, etc., may lead to completely different results from case to case. The fact-specific character of the analysis, however, is the inevitable result of the Supreme Court’s endorsement test, which remains the law of the land and is binding upon this court. See Lee v. Weisman, — U.S. -, 112 S.Ct. 2649, 2655, 120 L.Ed.2d 467 (1992) (expressly declining to reconsider Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and its progeny).
. The majority confirms as much in its short statement adopting the district court's opinion when it cites, as the district court’s lone reason for granting summary judgment for the State, the district court’s "conclusion that by permitting the display in the Rotunda the State would send an impermissible message of the State’s endorsement of religion in violation of the Establishment Clause." Ante, at 1387.