American Civil Liberties Union v. Capitol Square Review & Advisory Board

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0148P (6th Cir.)

File Name: 00a0148p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



AMERICAN CIVIL LIBERTIES



UNION OF OHIO; MATTHEW



PETERSON, Reverend,



No. 98-4106

Plaintiffs-Appellants,



>

v. 







CAPITOL SQUARE REVIEW



AND ADVISORY BOARD;



ROBERT TAFT, Governor of

Ohio; RONALD R. KELLER; 





DANIEL SHELLENBARGER;



RICHARD H. FINAN; J.



KENNETH BLACKWELL,



Secretary of State; THOMAS



M. ZAINO, Tax

Commissioner, 

Defendants-Appellees. 

1

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 97-00863—James L. Graham, District Judge.

Argued: November 4, 1999

1

2 Am. Civil Liberties Union of Ohio, et al. No. 98-4106

v. Capitol Square Review, et al.

Decided and Filed: April 25, 2000

Before: MERRITT and NELSON, Circuit Judges; COHN,

District Judge.*

_________________

COUNSEL

ARGUED: Mark B. Cohn, McCARTHY, LEBIT,

CRYSTAL & HAIMAN, Cleveland, Ohio, for Appellants.

David M. Gormley, OFFICE OF THE ATTORNEY

GENERAL OF OHIO, Columbus, Ohio, for Appellees.

ON BRIEF: Mark B. Cohn, McCARTHY, LEBIT,

CRYSTAL & HAIMAN, Cleveland, Ohio, Susan B. Gellman,

WOLMAN, GENSHAFT & GELLMAN, Columbus, Ohio,

Thomas D. Buckley, Jr., ACLU OF OHIO FOUNDATION,

INC., Cleveland, Ohio, for Appellants. Edward B. Foley,

OFFICE OF THE ATTORNEY GENERAL OF OHIO,

Columbus, Ohio, for Appellees. David R. Huggins, THE

NATIONAL LEGAL FOUNDATION, Virginia Beach,

Virginia, John G. Stepanovich, Shawn A. Voyles, THE

AMERICAN CENTER FOR LAW & JUSTICE MID-

ATLANTIC, Virginia Beach, Virginia, for Amici Curiae.

COHN, D. J., delivered the opinion of the court.

MERRITT, J. (pp. 53-57), delivered a separate concurring

opinion, in which COHN, D. J., joined. NELSON, J. (pp. 58-

61), delivered a separate dissenting opinion.

*

The Honorable Avern Cohn, United States District Judge for the

Eastern District of Michigan, sitting by designation.

No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 3

v. Capitol Square Review, et al.

_________________

OPINION

_________________

COHN, District Judge.

By separating government and religion the establishment

clause enables [a religious heterogeneous] society to

maintain some civility among believers and unbelievers

as well as among diverse believers.

– Leonard Levy1

I. Introduction

A. Issue

In this case we are called upon to decide whether or not the

official motto of the State of Ohio, “With God All Things Are

Possible,” taken directly from the New Testament of the

Christian Bible, violates the Establishment Clause of the First

Amendment to the Constitution. Disagreeing with the district

court, which found the words of the motto compatible with

the Constitution, American Civil Liberties Union v. Capitol

Square, 20 F. Supp. 2d 1176 (S.D. Ohio 1998), we find that

it does violate the Establishment Clause and, accordingly,

reverse the district court. Review is de novo, New Life

Baptist Church Academy v. Town of East Long Lake Meadow,

885 F.2d 940, 941 (1st Cir. 1989). Our reasons follow.

B. Parties

Plaintiffs-appellants are the American Civil Liberties Union

of Ohio and Matthew Peterson, a Presbyterian Minister.

Defendants-appellees are the Capitol Square Review and

1

Leonard W. Levy, Origins of the Bill of Rights 102 (Yale Univ.

Press 1999).

4 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 61

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

Advisory Board (Board), Ronald T. Keller, Executive

Director of the Board, Daniel Shellenbarger, Assistant

Director of the Board, and Richard H. Finan, an Ohio State F.Supp. 1183-85 makes it obvious, I think, that the Framers themselves

Senator and chairperson of the Board, as well as George would not have dreamed that the adoption of Ohio’s religiously-oriented

Voinovich, then Governor of Ohio, Bob Taft, then Secretary motto could be thought to constitute an “establishment of religion.” In an

of State of Ohio, now Governor, and Roger W. Tracy, then action no less “political” than the adoption of the national and state

Commissioner of the Ohio Department of Taxation. The mottos, for example, the Congress that gave us the First Amendment

defendants collectively will be referred to as the State. called upon President Washington to proclaim – as he did – “a day of

public thanksgiving and prayer, to be observed by acknowledging with

grateful hearts the many and signal favours of Almighty God.” Id. at

C. Background 1181 (citation omitted).

1. “‘Establishment of religion,’ as the term was used in the days of the

Founders, connoted such things as the payment of clerical salaries by the

After seeing the motto, “Government Work is God’s state, the governmental prescription of articles of faith, the imposition of

Work,” inscribed on a public building in India, Governor religious tests for office, and the official endorsement of particular forms

of worship.” American Civil Liberties Union v. City of Birmingham, 791

Voinovich urged the Board to install an engraved state seal F.2d 1561, 1568-69 (6th Cir.) (Nelson, J., dissenting), cert. denied, 479

and the words of the Ohio motto on a granite plaza at the west U.S. 939 (1986). James Madison – “the draftsman of and the guiding

end of the state house located in Capitol Square Plaza. In hand behind the First Amendment,” as the concurring opinion accurately

1996, following an announcement that the Board intended to describes him – said during the debates of the First Congress that led up

do so, plaintiffs brought suit for a declaratory judgment and to the adoption of the Establishment Clause that “he apprehended the

meaning of the words to be, that Congress should not establish a religion,

injunction.2 Following a one-day trial, at which experts in the and enforce the legal observation of it by law, nor compel men to worship

field of religion testified as to the origins and interpretation of God in any manner contrary to their conscience.” 1 Annals of Cong. 730

the words of the motto in the context of which they are found (1789), as quoted in Wallace v. Jaffree, 472 U.S. 38, 95 (1985)

in the New Testament, and numerous exhibits were received (Rehnquist, J., dissenting). Ohio’s motto comes nowhere close to doing

into evidence, the district court found that the words of the this.

motto were compatible with the Establishment Clause3 and My problem, of course, is that within my lifetime there has been a

denied plaintiffs relief. The district court, however, without radical evolution in judicial thinking on what the Establishment Clause

explanation, permanently enjoined the State of Ohio from proscribes. Justice Rehnquist, as he then was, alluded in his Wallace

attributing the words of the motto to the text of the New dissent to a “mischievous diversion of judges from the actual intentions

Testament. of the drafters of the Bill of Rights.” Id. at 107. Mischievous or not, the

diversion is an obvious fact.

To say precisely how far the diversion from the Founders’ intentions

2 has progressed calls for powers of analysis – or divination – that I do

While the suit is directed primarily at the installation in the Capitol not possess. If the spirit that animated the Supreme Court’s decision in

Square Plaza, the clear thrust of the complaint is at the use of the words Marsh v. Chambers were to guide us here, we would decide the present

of the motto in all forms by the State of Ohio. case in accordance with the original understanding of the phrase “an

3 establishment of religion.” But I readily acknowledge that the Marsh

The Establishment Clause reads in relevant part: “Congress shall approach is not one that has been followed consistently – and that is why

make no law respecting an establishment of religion . . . .” Under I have chosen to rest mainly on the proposition that if the national motto

Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 (1943), it is is constitutional, Ohio’s motto is constitutional too. This may be

applicable to the several states through the Fourteenth Amendment. simplistic, but I hope it at least has the virtue of being comprehensible.

60 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 5

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

could not have identified the source of either motto, and I 2.

doubt that it is vanity alone which prompts me to suggest that

my ignorance is far from atypical. The words of the motto, “With God All Things Are

Possible,” are a direct quotation from Chapter 19, Verse 26 of

If I am wrong in thinking that the reasonable observer need the Gospel According to Matthew of the New Testament. It

not be omniscient, on the other hand, it is by no means clear reads in relevant part:

to me that an omniscient observer would recognize that our

national motto is not an endorsement of Judaism but would The children were brought to him that he might lay his

conclude that Ohio’s motto is nonetheless an endorsement of hands on them and pray. The disciples rebuked the

Christianity. Such an observer – completely familiar with the people; but Jesus said, “Let the children come to me, and

long tradition of “ceremonial deism” described in the majority do not hinder them; for to such belongs the kingdom of

opinion – would reasonably conclude, I believe, that both the heaven.” And he laid his hands on them and went away.

Ohio motto and the national motto fit comfortably within that

tradition. And behold, one came up to him, saying, “Teacher,

what good deed must I do, to have eternal life?” And he

An omniscient observer would know that Ohio’s motto law said to him, “Why do you ask me about what is good?

(Ohio Rev. Code §5.06) is codified in the same chapter as One there is who is good. If you would enter life, keep

statutes designating the state wild flower (Ohio Rev. Code the commandments.” He said to him, “Which?” And

§ 5.021), the official state bird (Ohio Rev. Code § 5.03), the Jesus said, “You shall not kill, You shall not commit

official state animal (Ohio Rev. Code § 5.032), the state coat adultery, You shall not steal, You shall not bear false

of arms (Ohio Rev. Code § 5.04), the official state tree (Ohio witness, Honor your father and your mother, and, You

Rev. Code § 5.05), the official state gem stone (Ohio Rev. shall love your neighbor as yourself.” The young man

Code § 5.07), the official state invertebrate fossil (Ohio Rev. said to him, “All these I have observed; what do I still

Code § 5.071), the official state beverage (Ohio Rev. Code lack?” Jesus said to him, “If you would be perfect, go,

§ 5.08), and the state song (Ohio Rev. Code § 5.09). The sell what you possess and give to the poor, and you will

statutory context hardly suggests that the challenged law have treasure in heaven; and come, follow me.” When

involves an establishment of religion. the young man heard this he went away sorrowful; for he

had great possessions.

Accordingly, and for substantially all of the reasons given

by the district court in its scholarly and thoughtful opinion, And Jesus said to his disciples, “Truly, I say to you, it

American Civil Liberties Union of Ohio v. Capitol Square will be hard for a rich man to enter the kingdom of

Review and Advisory Board, 20 F. Supp.2d 1176 (S.D. Ohio heaven. Again I tell you, it is easier for a camel to go

1998), I would affirm the holding that Ohio has not acted through the eye of a needle than for a rich man to enter

unconstitutionally.2 the kingdom of God.” When the disciples heard this they

were greatly astonished, saying, “Who then can be

saved?” But Jesus looked at them and said to them,

2

The concurring opinion prompts me to add that if the

“With men this is impossible, but with God all things are

constitutionality of Ohio’s motto were to be decided according to the possible.”

intent of the Framers of the Establishment Clause, this would be a very

easy case indeed. The evidence marshalled by the district court at 20

6 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 59

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

Matthew 19:13-26 (Oxford Annotated Bible with the similar.1 A person exceptionally well versed in the bible, on

Apocrypha, Revised Standard Version)4 (emphasis added). the other hand, might be aware that the declaration about

trusting in God harkens back to the pre-Christian Old

Essentially, what is being described is a dialogue between Testament (see Psalms 56:11), while the declaration about all

Jesus, a rich young man, and Jesus’ disciples in which Jesus things being possible with God is part of a statement that the

concludes by saying that the salvation of a rich man is a Christian New Testament attributes to Jesus in a context

miracle that only God can accomplish. A similar account is unique to Christianity. See Matthew 19:26.

found in Mark 10:14-27 and Luke 18:15-27.

I do not quarrel with the proposition that a government

3. motto would be unconstitutional, under our current

understanding of the Establishment Clause, if a hypothetical

a. “reasonable observer” would take Ohio’s motto to be an

official endorsement of the Christian religion. I do not

The American Heritage Dictionary of the English Language understand, however, why the observer should be deemed to

(3d ed.1992) describes as the central and most commonly be omniscient as well as reasonable. All that is suggested by

sought meaning of Jesus, Christ, Christianity, and Christian the adjective “reasonable,” I believe, is an observer who is an

as follows: “informed member of the community” and who is “aware of

the history and context of the community and forum” in which

- Jesus - A teacher and prophet who lived in the first the challenged expression appears. See Capitol Square

century of this era and whose life and teachings form the Review and Advisory Board v. Pinette, 515 U.S. at 780-81

basis of Christianity. Christians believe Jesus to be Son (1995) (O’Connor, J., concurring) (emphasis supplied). Such

of God and the Christ. an observer should not, I think, be presumed to have an

- Christ - The Messiah, as foretold by the prophets of the encyclopedic knowledge of the Old and New Testaments.

Old Testament. “There is always someone who, with a particular quantum of

knowledge, reasonably might perceive a particular action as

- Christianity - The Christian religion, founded on the life an endorsement of religion,” as Justice O’Connor observed in

and teachings of Jesus. her Capitol Square opinion, id. at 780, but that exceptional

“someone” is not our reasonable observer.

- Christian - Professing belief in Jesus as Christ or

following the religion based on the life and teachings of If I am correct in my understanding of the test, I do not

Jesus. believe that a reasonable observer in Ohio would find “With

God All Things Are Possible” significantly more problematic

The American Heritage Dictionary further describes as the than “In God we trust.” I confess that prior to this lawsuit I

central and most commonly sought meaning of Matthew,

Apostle, Gospel, and Salvation as follows:

1

The concurring opinion suggests that a reasonable observer would

understand that the God of whom the national motto speaks could be a

4 mere golden calf, while the God of whom the state motto speaks could

The King James Version and the Revised Standard Version differ not. The distinction, it seems fair to say, is one that would not leap

slightly in text. See The Interpreters Bible, Vol. VII pp. 482-87. readily to the minds of most observers.

58 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 7

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

_________________ - Matthew - One of the 12 Apostles and the traditionally

accepted author of the first Gospel of the New

DISSENT Testament.

_________________

- Apostle - One of a group made up especially of the 12

DAVID A. NELSON, Circuit Judge, dissenting. In 1956 disciples chosen by Jesus to preach the gospel.

Congress enacted a law, now codified at 36 U.S.C. § 302,

declaring the national motto to be “In God we trust.” Three - Gospel - One of the first four books of the New

of our sister circuits have upheld the constitutionality of this Testament, describing the life, death, and resurrection of

federal statute against claims that it violates the First Jesus and recording his teaching.

Amendment as a “law respecting an establishment of

religion. . . .” Aronow v. United States, 432 F.2d 242 (9th - Salvation - Deliverance from the power or penalty of sin;

Cir. 1970); O’Hair v. Murray, 588 F.2d 1144 (5th Cir.), cert. redemption.

denied, 442 U.S. 930 (1979); Gaylor v. United States, 74 F.3d

214 (10th Cir.), cert. denied, 517 U.S. 1211 (1996). The These definitions are important to an understanding of the

Supreme Court has never questioned the conclusion reached reasons for our decision.

in these decisions. b.

In 1959 the Ohio legislature enacted a law adopting “With In Lynch v. Donnelly, 465 U.S. 668, 708 (1984), Justice

God All Things Are Possible” as the official motto of the Brennan, in describing the nativity scene (the place of Jesus’

state. See Ohio Rev. Code § 5.06. The Fourteenth birth), a scene “rooted in a biblical account of Christ’s birth,”

Amendment makes the Establishment Clause of the First said in his dissenting opinion:

Amendment applicable to the states, but the Supreme Court

has told us that “it would be incongruous to interpret that It is the chief symbol of the characteristically Christian

Clause as imposing more stringent First Amendment limits on belief that a divine Savior was brought into the world and

the states than the draftsmen imposed on the Federal that the purpose of this miraculous birth was to

Government.” Marsh v. Chambers, 463 U.S. 783, 790-91 illuminate a path towards salvation and redemption.

(1983). This being so, and assuming (as I do) that the

national motto is not unconstitutional, I am led to the question In a footnote Justice Brennan further explained:

whether there is such a pronounced difference between “In

God we trust” and “With God All Things Are Possible” that For Christians, of course, the essential message of the

adoption of the latter declaration as a motto must be held to nativity is that God became incarnate in the person of

violate the Establishment Clause notwithstanding that Christ. But just as fundamental to Jewish thought is the

adoption of the former is constitutionally permissible. belief in the “non-incarnation of God, . . . [t]he God in

whom [Jews] believe, to whom [Jews] are pledged, does

To a reasonable observer who did not happen to be a not unite with human substance on earth.” . . . This

biblical scholar, it seems to me, “In God we trust” and “With distinction, according to [Martin] Buber, “constitute[s]

God All Things Are Possible” would appear remarkably the ultimate division between Judaism and Christianity.”

8 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 57

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

465 U.S. at 708 n. 14 (internal citations omitted.) temple. The God of Ohio’s biblical motto is the God of

particular Christian religious groups. The God of Ohio’s

As such, Jesus is unique among all figures of the Christian biblical motto prefers one set of groups and one theology over

bible. another, a God who excludes nonbelievers and many other

Christians from being “saved” and from entering “into the

D. The District Court Decision kingdom of heaven.” In the biblical passage from which

Ohio’s motto takes its meaning, “treasure in heaven” and

1. God’s approval can only come if the believer will, in the

words of Jesus, “follow me” and “be saved.” Thus Ohio’s

The decision of the district court, finding the words of the motto is unconstitutional under the Establishment Clause

motto compatible with the Establishment Clause, began by because it discriminates among religions and groups within

decontextualizing the meaning of Jesus’ words: the Christian religion and encourages a particular Christian

While the words of the motto appear to have been taken doctrine. It violates the Establishment Clause because it does

from the Christian New Testament, specifically Matthew not meet the test set out by Madison’s colleague, Elbridge

19:26, they are only part of a sentence in that passage and Gerry, expressed in the congressional debates on the

they have been completely removed from the context in Establishment Clause “that no religious doctrine shall be

which they were used. established by law,” — a major principle underlying the

“equal liberty of conscience” that the framers intended to

Removed from their Christian New Testament context, enact. 1 Annals of Congress 729.

the words of the motto do not suggest a denominational For these reasons and the reasons set out in Judge Cohn’s

preference. They do not state a principle unique to well-researched opinion for the Court, Ohio’s legislated motto

Christianity. They could be classified as generally “With God, All Things Are Possible” must be declared in

theistic. They are certainly compatible with all three of violation of the Establishment Clause of the First Amendment

the world’s major monotheistic religions: Judaism, of the Constitution of the United States.

Christianity, and Islam. Statements similar to the words

of the motto are found in the Hebrew Bible as well as the

Qur’an, the sacred book of the Muslims.

20 F. Supp. 2d at 1178-79 (footnotes omitted). The court

went on to apply a subjective test for a reasonably informed

observer (to be discussed below) reading the words of the

motto:

Plaintiffs have presented no evidence that a reasonable

person who reads the words of the motto would

recognize them as the words of Jesus or understand them

as suggesting a denominational preference. Plaintiffs’

witness, Rabbi Harold Berman, of Columbus, Ohio,

senior Rabbi of the Congregation Tefereth Israel for

56 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 9

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

primary nor the secondary meaning of the words of Ohio’s eighteen years, did not recognize the source of the motto

biblical motto is true. Although many Christian believers when he first became familiar with it. He was only able

accept these verses as true, others do not believe that a to say that it “sounded vaguely familiar.” Defendants’

powerful, all-knowing personal God intervenes in daily witness, Dr. David Belcastro, an associate professor of

affairs. They do not believe literally in the type of religious studies at Capital University in Columbus,

personalized salvation expressed by Matthew. In addition, Ohio, opined that the average college student would not

many skeptics and nonbelievers hold that this state imposed know the source of the motto. The Court concludes that

biblical verse is untrue. For example, the Scientific American an objective and reasonably informed observer would not

recently reported a survey of the 1800 members of the perceive the motto as sectarian.

National Academy of Sciences which shows that over 90 per

cent of the Academy — created by Congress in 1863 — do 20 F. Supp. 2d at 1179.

not believe in a personal God who intervenes in the affairs of

human beings. E. Larson and L. Whitham, “Scientists and The district court found as the definitive meaning of the

Religion in America,” Scientific American (Sept. 1999). words of the motto:

Third. Whatever may be the meaning of the phrase, “In It inculcates hope, makes Ohio unique, solemnizes

God We Trust” on the coin of the realm, it does not specify a occasions, and acknowledges the humility that

personal, all-powerful, all-knowing God which makes “all government leaders frequently feel in grappling with

things possible” by intervening in daily affairs. It does not difficult public policy issues.

necessarily run contrary to the religious beliefs of any

particular Christian denomination or group or any other 20 F. Supp. 2d at 1182 (quoting the Memorandum Contra

religion. It may not be entirely consistent with the views of Plaintiffs’ Motion for Preliminary Injunction p. 21.)

the National Academy of Sciences and nonbelievers, but it is

not particularly offensive. The god in whom we “trust” could Finally, apparently to assure the continued

be the god of Jefferson’s deism or even perhaps the laws of decontextualization of the words of the motto, and to avoid

science or the cosmology of Newton or Einstein. The phrase any possibility of attaching a religious meaning to them, the

is sufficiently vague that it does not define the particular god district court, without explanation or elaboration,

of any religion. Neither does it have a secondary meaning, a “permanently enjoined [the state of Ohio] from attributing the

connotation, a context, that requires that all of the coin of the words of the motto to the text of the Christian New

realm on which the phrase appears be “give[n] to the poor” in Testament.” 20 F. Supp. 2d at 1185.

order for the “rich man to enter into the kingdom of God.”

The god of the silver coin and the dollar bill — “In Whom

We Trust” — may be merely mammon or may be drawn from

any of the gods in the world’s vast pantheon of divinity that

has accumulated from Greek times to the present. The god of

the coin of the realm is not by any means the “God” of

Matthew 19:21-26, who makes “all things possible,” a God

who disapproves of mammon, and who through his son, Jesus

Christ, reportedly threw the money changers out of the

10 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 55

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

2. Ohio’s biblical motto test tends to establish a “confessional

state” and is therefore invalid. Stein v. Plainwell Community

In sum, the district court’s decision is predicated on a Schools, 822 f.2d 1406, 1408 (6th Cir. 1987).

reading of the words of the motto out of context, viewing

them subjectively, and prohibiting the State of Ohio (and Second. The words “With God, All Things Are Possible”

presumably all of its officers and employees) from disclosing have meaning. The most obvious primary meaning of the

the origin of the words of the motto. words is that a personal, all-knowing, all-powerful God

intervenes in the daily affairs of individuals and through this

E. Adoption Of The Motto miracle of supernatural intervention makes “all things

possible.” The secondary meaning, or the connotation of the

The words were adopted as the official state motto in 1959 words, as Judge Cohn’s opinion for the Court makes clear,

by an act of the General Assembly of the State of Ohio, Ohio comes from the context from which the words were taken.

Rev. Code § 506,5 following the suggestion of a 12 year old Salvation, eternal life and “treasure in heaven” can only be

Cincinnati school boy. In publicizing its adoption, and the achieved in one way:

suggestion that October 1, the day the motto became official,

be designated as “motto day” in Ohio, the Secretary of State Jesus said unto him, if thou wilt be perfect, go and sell

said in a press release: that thou hast, and give to the poor, and thou shalt have

treasure in heaven; and come and follow me.

The boy started petitioning the Legislature when he was

9 years old, [sic] Jimmy chose a verse in the New But when the young man heard that saying, he went

Testament, Matthew 19:26, “But Jesus beheld them and away sorrowful; for he had great possessions.

said unto them, With men this is impossible; but with

God, all things are possible,” from which to draw the Then said Jesus unto his disciples, Verily I say unto

official motto. you, That a rich man shall hardly enter into the kingdom

of heaven.

II. The Trial

And again I say unto you, It is easier for a camel to go

The trial record reflects the testimony of experts in religion through the eye of a needle than for a rich man to enter

regarding the meaning of the words of the motto, examples of into the kingdom of God.

official use of the words of the motto, and miscellaneous

documentary evidence relating to citizens’ understanding of, When his disciples heard it, they were exceedingly

and attitudes regarding, the use of the words of the motto. amazed, saying, Who then can be saved?

But Jesus beheld them, and said unto them, With men

this is impossible; but with God all things are possible.

Matthew 19:21-26 (emphasis added).

Most of the world’s many religions and some Christian

5

There is no formal legislative history of the act.

sects, denominations and theologians believe that neither the

54 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 11

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

constitutional and it equals “With God, All Things Are A. Testimony

Possible” and hence the latter must also be constitutional.

1.

This argument is misguided for a large number of reasons,

three of which I will discuss. Ronald Stone, a professor of Christian Ethics at Pittsburgh

Theological Seminary, was called as a witness by plaintiffs.

First. Ohio’s biblical motto does not meet the He testified as follows:

Establishment Clause test of “an equal liberty of conscience

for all” set out by our court in an Establishment Clause case . . . it was known to be part of the discourse in Matthew

decided more than a decade ago. It fails because it is an effort about the rich young ruler seeking salvation and asking

of political and religious groups “to use the state in support of questions about salvation, and then there’s quite a

their particular beliefs.” We stated this principle of “equal lengthy dialogue,

liberty” as follows:

....

From the beginning of the colonial period to the

present, American churches have taken their various . . . it is in all three of the synoptic gospels, Mark,

religious differences seriously, and under the Free Matthew, and Luke, and present[s] a view of salvation

Exercise and Establishment clauses taken together, we which denies that it’s possible to be saved by the good

have generally accepted and settled on an works of human beings, but it’s only by the grace of God

accommodation. The concept of the equal liberty of that one may be saved, which is quite a foundational

conscience is our guiding principle. In our national and document to protestant perspectives and protestant

community life, we can never be sure whether our theology,

particular religious, sectarian and moral convictions will

be in the majority or the minority. So as a diverse people ....

we have rejected the notion of a confessional state that

supports religion in favor of a neutral state designed to [Jesus is] addressing himself to the listeners who are

foster the most extensive liberty of conscience the disciples. One couldn’t exclude some other listeners,

compatible with a similar or equal liberty for others. To but it’s not clear that there is a larger group beyond the

those who act or argue against this principle of equal disciples. The question has been asked if it’s this

liberty of conscience on grounds that their duty is to use difficult for the rich who follow all the commandments,

the state in support of their particular beliefs, we answer how could anyone be saved? And then the verse that is

that we cannot expect others to accept an inferior liberty. at question here, and Jesus said unto them, with men, it’s

To those who say that the principle of equal liberty of impossible, but with God, all things are possible. It’s not

conscience has the effect of rejecting the absolute nature possible with men. Men cannot do it. Humans can’t do

of their religious beliefs, we reply that if any principle it, we would say in the contemporary world, but God can.

can be agreed to, it can only be that of an equal liberty of

conscience for all. (JA at 119-20, 122).

12 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 53

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

Matthew Peterson, associate pastor of a Presbyterian church _______________________

in Columbus, also called by plaintiffs, explained in response

to a question: CONCURRENCE

_______________________

Q. Does the verse Matthew 19:26 and the other parallel

versions in Mark and Luke have continuing religious MERRITT, Circuit Judge, concurring. The argument that

significance to you as a Christian? persuades Judge Nelson to dissent is not that the intent of the

framers of the Establishment Clause, or the evolving

A. They do indeed. Specifically, because we are asked principles of separation of church and state over the last 200

to preach on them at least once every three years, but years, or the reasoning of a Supreme Court case supports the

we really preach on it somewhat more often than constitutionality of Ohio’s official motto. No argument based

that, through the Lectionary,6 but also it has on principle or the constitutional policy underlying the

significance for me because it talks about one of the Establishment Clause is advanced. “With God, All Things

foundational statements in the Christian church, not Are Possible” would be placed on public buildings, state

just Presbyterian, but the Christian church on how is banners and public documents and publications without any

a person saved. And since really the establishment serious attempt to justify such state conduct on the basis of

of churches in the middle east thousands of years principle.

ago, one of the main questions we have had is: Can

a wealthy person be saved? What is the relationship The real reason behind this state action adopting a religious

between the wealthy and the poor? What is our verse from the New Testament seems purely political: To

obligation as wealthy people to poor people? And please certain politically influential religious groups.

this statement by Jesus helps us very fundamentally Madison, the draftsman of and the guiding hand behind the

with some of those questions, and we refer to it all First Amendment, was not wrong when he predicted that such

the time in the church, not merely once every three religious and political “coalitions” would develop in the new

years as it appears in the Lextionary [sic]. Republic and that a fundamental law should be adopted to

deter government and religious groups from the “tendency to

(JA at 175-76). Peterson went on to testify: a usurpation on one side or the other, or to a corrupting

coalition or alliance between them.” IX The Writings of

In context this has everything to do with salvation, and it James Madison, 487 (G. Hunt ed. 1910).

has very important relevance to Christian teachings in

context. It is an expression of the omnipotence of God in The argument of the State of Ohio and the dissent is

context with regard specifically to how are we saved. simplistic: “With God, All Things Are Possible” is harmless

Through Christ, we are saved. Can a rich person be and means approximately the same thing as “In God We

saved? Well, with mortals, with individuals, this is Trust.” Since “in God We Trust” is so innocuous that it

appears on all of the coin of the realm — all of our paper

currency and silver — it must be constitutional and thus it

6 must also be constitutional to require Ohio’s official biblical

A lectionary is a book or list of lections to be read at church services

during the year. See The Revised Common Lectionary (Abingdon Press verse to be placed on buildings and official publications. The

1992). A lection is a reading from scripture which forms part of a church argument is a simple syllogism: “In God We Trust” is

service.

52 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 13

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

The National Conference for Community Justice, You Are impossible, you cannot effect your own salvation, but

Asked To Give Public Prayer In A Diverse Society - with God, with God’s grace, a mystery we are not fully

Guidelines for Civic Occasions (New York, NY). sure we understand, we can be saved. God’s love is

manifold everywhere.

Accordingly the decision of the District Court is

REVERSED and this case is REMANDED for entry of a (JA at 176-77). He then concluded:

permanent injunction enjoining the State of Ohio, its agents

and employees from using the words “With God All Things The state is, if it desires to engage as it appears to do in

Are Possible” as the official state motto. theological dialogue or discourse, is indeed a formidable

opponent. It has a breadth and a depth that I as an

individual clergymen do not have, and when they desire

to engage in the dialogue, a theological dialogue in

explaining what they mean by God, I believe that to be an

inappropriate moment for the discussion. The discussion

needs to be taking place in synagogues and churches and

mosques around the state. And even in the halls of

legislature, we can discuss the Lord’s intention as

individual people, but when the state adopts a motto

which necessitates theological dialogue to explain it, for

example, we mean it has to do with the omnipotence of

God, oh, no, what we mean it has to do with salvation,

says Legislator X. In that dialogue, in that debate, you

are absolutely having a theological discussion. And

when it becomes a part of a building or part of Capitol

Square, you are solidifying, quite literally, a statement, a

theological statement, about God. And certainly in my

view, it violates the First Amendment.

(JA at 177-78).

2.

David Belcastro, an associate professor of Religious

Studies at Capital University, was called as a witness by

defendants. He testified:

Q. We heard . . . that . . . these words . . . refer to

salvation. In your experience as a theologian . . .,

have you found that that is universally agreed upon?

14 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 51

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

A. No. to religion. Finding a state’s official motto unconstitutional

is not something we, as judges, do lightly.

Q. What are other interpretations, . . . .

Certainly the citizens of Ohio ought to have the right to

.... collectively assert their spirit and aspirations in the form of a

motto without judicial interference – unless in doing so they

A. The words “With God All Things Are Possible” are run afoul of the fundamental laws which govern all of us.

not in reference to salvation. They have to do with However, that is what they have done here. The State of Ohio

discipleship. The question of salvation is not raised has not given equal treatment to all religions; it has not taken

by Jesus, it is raised by the rich man in the story. He an even-handed approach; it has not followed a course of

is preoccupied with his religious standing. Having conduct that is non-proselytizing and non-sectarian. While

accomplished a great deal in his life and kept the the words of the motto may not overtly favor Christianity, as

law, he wonders what more he must do to be saved. the words of Jesus they, at a minimum, demonstrate a

particular affinity toward Christianity in the eyes and ears of

Jesus responds: Sell all that you have, give it to a reasonable observer – a person knowledgeable about the

the poor, and follow me, which the rich man is not Christian Bible and particularly the New Testament. In

able to do. attempting to accomplish a non-secular result, the State of

Ohio has neutered the words of Jesus, a historical figure at

The disciples take up the same question. Well, if least.

he can’t be saved, who can? And at this point, Jesus

says the phrase about the camel and the eye of the In sum, by official action, the Ohio legislature, in following

needle, and then followed with “With God All the suggestion of the 12 year old boy who suggested the

Things Are Possible.” words of Jesus as the official motto of the state, has given an

unconstitutional preference to Christianity. The State of Ohio

The important point here is what follows shortly has effectively said to all who hear or see the words “With

thereafter. Jesus, once again in the gospels, is God All Things Are Possible,” that Christianity is a preferred

turning people around from their self-centered religion to the people of Ohio.

interest, in this case personal salvation, to his call

which is to a radical discipleship, and the very We recognize that what is good social policy is not always

next thing that Jesus says is: If anyone wants to be good law. Here, in our view, the two coincide. The National

my disciple, he must deny himself, take up the Conference for Community Justice, in advising those who are

cross, and follow me, very similar to what he says asked to give prayers in a public setting, says:

to the rich young ruler.

Prayer on behalf of the entire community should be

The issue for Matthew is not the protestant easily shared by listeners from different faiths and

doctrine of justification by faith, the issue for traditions . . . [and use] forms and vocabulary that allow

Matthew is: Who is Jesus, and what is he asking persons of different faiths to give assent to what is said.

of those who follow him that are entering into this

great event that he’s anticipating?

50 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 15

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

you that that’s our view of life here as we open court.” Q. Is it fair to say, Professor, that persons can walk

Would that be legal? away from this phrase, either in isolation or within

its broader Biblical context, with different

ASSISTANT ATTORNEY GENERAL: I think if it meanings?

were conveyed in a ceremonial way like the U.S.

Supreme Court marshal’s statement, “God save the A. Yes.

United States and this Honorable Court” every time the

nine justices walk in. That’s okay. Q. We heard testimony this morning this phrase “With

God All Things Are Possible”, or similar words,

THE COURT: If every time we open court here appear in three of the four gospels. Are you familiar

because we believe it’s true we say, “We want to advise with that?

you of our view that with God all things are possible,” is

that good or okay? A. Yes.

ASSISTANT ATTORNEY GENERAL: If it’s simply Q. Does the fact that words similar to the state motto

a ceremonial process, I do, but the more you say it, the appear in those three books have particular

more coercive it becomes. significance to you as a scholar in terms of their

authenticity, their ties to Jesus and their validity as

THE COURT: Suppose we had said, “As Jesus Christ opposed to other one-time only words of the Bible?

said in Matthew 19, we believe ‘with God all things are

possible,’” that we want you to agree with that. That A. No.

would change it, wouldn’t it?

Q. Why not?

ASSISTANT ATTORNEY GENERAL: No, that’s not

acceptable, both because you’re referring to one A. They are completely taken out of context. The

religion’s text and you’re urging the listeners to accept words “With God All Things Are Possible” are not

that statement. pivotal words of this particular part of the gospel

story; they are rather incidental in some ways, and

THE COURT: But if we’re quoting from Jesus Christ they have been lifted out of context. They do not

and we don’t just tell you we’re quoting . . . what’s the carry the meaning intended by either Matthew,

difference? Mark, or Luke or the authors attributed to those

names, and so placed in another context, they are

ASSISTANT ATTORNEY GENERAL: Because the open to endless interpretations.

words “with God all things are possible” don’t convey a

one-religion-only message. (JA at 210-13).

VII. Conclusion Thomas D. Kasulis, a professor and the chair of the

Division of Comparative Studies at Ohio State University,

This decision should not be viewed as hostile to religion, was called as a witness by defendants. After testifying on

but rather, an effort to assure government neutrality in relation direct examination that the words of the motto were

16 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 49

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

“exhortative as opposed to factual,” Kasulis testified in cross- repeats word-for-word, Jesus' answer to his disciples'

examination as follows: questions about the ability to enter heaven, and thereby

achieve salvation. As such, to the ears of a reasonable

Q. Now, when you say that the phrase “With God All listener, the motto comes directly from the voice of Jesus. To

Things Are Possible” is exhortative as opposed to suppress the knowledge that these are the words of Jesus, and

factual, in context, Jesus is talking about “With God to say that they describe something other than the

All Things Are Possible” to mean that salvation is achievement of salvation, is to put a premium on ignorance.

possible; is he not? Moreover, to enjoin state officials from explaining the origin

of the words is to perpetuate such ignorance.

A. He is saying that what the disciples seem to believe

was impossible is possible because of God. In sum, fairly read and understood, the State of Ohio has

adopted a motto which crosses the line from evenhandedness

Q. And what that is is salvation? toward all religions, to a preference for Christianity, in the

form of Christian text. Thus, 20it is an endorsement of

A. That is right, yes. What they were asking about, yes, Christianity by the State of Ohio.

was salvation.

2.

(JA at 242).

Our conclusion as to the constitutionality of the words of

B. Use Of The Motto the motto is reinforced by a colloquy at oral argument with

the Assistant Attorney General representing defendants:

1.

ASSISTANT ATTORNEY GENERAL: The State of

Since their adoption as the official motto in 1959, the words Ohio readily concedes that a motto such as “In Jesus

of the motto have been included by successive Secretaries of Christ We Trust” would be unconstitutional, and neither

State on official documents surrounding the official seal, the State nor the United States expressed favoritism for

configured as follows: one religion in that way.

THE COURT: . . . Suppose our Court every day told

the lawyers when they assembled, “Litigants, with faith

in God all things are possible, and we are so instructing

20

We are not unmindful of the amicus curiae briefs filed by The

American Center for Law & Justice, Mid-Atlantic and The National Legal

Foundation, which argue, inter alia, the historical acceptability of

government acknowledging God. However, their arguments are

dependent upon the decontextualization and sanitization of the words of

the motto from their origin, which, as we state in this opinion, is

unacceptable.

48 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 17

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

Moreover, when an attempt is made to give them a different Other state officials, including the State Tax Commissioner,

meaning, as can be seen from the testimony at trial, a have used the seal and the words of the motto, or sometimes

theological dispute is the inevitable result.18 Additionally, the the words of the motto separately, on official forms and

injunctive order blotting out their origin or source simply documents. Officials in several Ohio counties use the words

complicates the problem of meaning. Is the injunction to of the motto on public documents. The motto also appears on

apply only to a written account of the origin of the words of the Franklin County Courthouse as well as on that county’s

the motto or does it apply, for example, to security officers in seal and flag.

Capitol Square when queried by visitors as to the origin of the

words of the motto? And what of the Ohio State Historical A pamphlet, Ohio’s Citizens Digest, distributed by the

Society? Is it also barred from explaining the origin of the Secretary of State lists, among other things, Ohio’s symbols.

words of the motto?19 Regarding the words of the motto, it says:

The words of the motto are not to be decontextualized in 7. The State’s Motto

order to allow them to pass constitutional muster. Whether

their source is formally attributed or not to Matthew, they are In 1959, the Ohio legislature adopted the state’s motto

the words of Jesus. No amount of semantic legerdemain can “With God all things are possible” (Matthew 19:26).

hide the fact that the official motto of the State of Ohio

(JA at 306.)

A pamphlet, Ohio: The Buckeye State, distributed by The

Story could say: “it is impossible for those, who believe the truth of Ohio Historical Society reads in part:

Christianity, as a divine revelation, to doubt, that it is the especial duty of

government to foster, and encourage it among all the citizens and STATE MOTTO

subjects,” Joseph Story, Commentaries of the Constitution of the United

States 723 (Vol. III, 1833), or that a member of Congress could introduce

a bill saying, “Whereas, The people of the United States are a Christian In 1866, a bill passed in the Ohio legislature specifying

people, and firmly believe in God, the Father Almighty, Maker of heaven a motto to be incorporated into the Great Seal.

and earth; and in Jesus Christ His only Son, our Lord...”, H.R. No. 5795

(1880), or that the Supreme Court of Oklahoma could say: “it is well The motto, Imerium in Imperio, “an empire within an

settled and understood that ours is a Christian Nation, holding the empire.” But the motto was to be short-lived.

Almighty God in dutiful reverence,” Oklahoma v. Williamson, 347 P.2d

204, 207 (1959).

Great clamor arose over the pretentious feudal meaning

18 of the Latin words, and in 1867, the law authorizing it

Separating the words of the motto from context would require was repealed. Ohio had no motto for the next 91 years.

further inquiry into their meaning – which is not necessarily the meaning

attributed to them by defendant; an unwarranted task in light of our view

that they cannot be decontextualized. In 1958, Jimmie Mastronardo, a sixth grade student in

Cincinnati, became concerned that Ohio was the only

19 state to have no motto. He found the perfect one in

The profession of interpretation, which encompasses

“communication activities designed to improve understanding” at Matthew 19:26: “With God all things are possible.” His

historical, natural, and cultural sites, would also be impacted by such an classmates and interested friends helped him circulate a

injunction. See generally,The National Association for Interpretation,

http://www.interpnet.com.

18 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 47

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

petition to the legislature, and in 1959, the new motto C. Reasons

was adopted.

1.

(JA at 363.)

As we have established above, the district court could

The State of Ohio web site, http://www.state.oh.us, justify the secular cast of the words of the motto and remove

s p e c i f i c a l l y w e b p a g e them from the strictures of the Establishment Clause only by

www.oplin.lib.oh.us/products/ohiodefined/ohd-9.html, decontextualizing and blotting out their origins. In the

exhibits the words of the motto as follows: context in which the words of the motto are found – as the

words of Jesus speaking of salvation – to a reasonable

observer, they must be seen as advancing, or at a minimum,

showing a “particular affinity” for Christianity. Simply put,

they are an endorsement of the Christian religion by the State

of Ohio. No other interpretation in the context of their

presence in the New Testament is possible.

We are satisfied that the words of the motto cannot be

treated as they were by the district court. When Jesus spoke

to his disciples he was explaining to them what was needed of

them to enter heaven and achieve salvation, a uniquely

Christian thought not shared by Jews and Moslems.16

We are also satisfied that the words of the motto, when

considered by a reasonable observer, run afoul of the second

prong of the Lemon test and they implicitly endorse

Christianity, as prohibited by Lynch supra. They are at one

with the stand alone creche in Allegheny, supra, and they do

2. not partake of the various forms of ceremonial deisms as

described in Marsh supra, and in the “In God We Trust” and

While the mottos of other states use the word “God” in Pledge of Allegiance cases. We see little difference in

various combinations, Ohio’s is the only state motto which quoting Jesus’ view on salvation, from17a reference to him in

quotes directly from either the Old Testament or the New prayer or his portrait on a school wall.

Testament of the Christian Bible.

C. Citizen Attitudes 16

This would, of course, include those of the Bahai Faith, Buddhists,

Hindus, Native Americans, and non-believers.

The documentary evidence relating to citizen attitudes at

trial was of two kinds. Defendants introduced into evidence 17

We have come a long way from when it was acceptable that a

numerous letters and petitions in support of placing the words Jewish man could be compelled to appear in court on his Sabbath day,

of the motto in Capitol Square. Plaintiffs introduced into Simon's Executors v. Gratz, XXIII Am. Dec. 35 (1831), or Justice Joseph

46 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 19

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

In Deal v. United States, 508 U.S. 129 (1993), Justice evidence the results of a survey measuring public awareness

Scalia, writing for the Supreme Court, in interpreting the of community and country issues -- two questions of which

word “conviction” in 18 U.S.C. § 924(c)(1) said: were directed to the words of the motto. Ninety percent of

those surveyed did not know of the words of the motto and,

. . . [a] fundamental principle of statutory construction of the ten percent who were aware of the words of the motto,

(and, indeed, of language itself) [is] that the meaning of only a quarter of those were aware of its exact words.

a word cannot be determined in isolation, but must be

drawn from the context in which it is used. III. The Positions Of The Parties; The Court’s Task

508 U.S. at 132. A. Plaintiffs

In Smith v. United States, 508 U.S. 223 (1993), the Plaintiffs’ position is generally as follows.

Supreme Court dealt with the meaning of the words “use of

a firearm” in 18 U.S.C. § 924(c)(1). Justice O’Connor, The words of the motto or words of Jesus in the New

writing for the Court, observed, “Language, of course, cannot Testament, to a reasonably well informed observer, violates

be interpreted apart from context.” 508 U.S. at 229. Justice the Establishment Clause of the First Amendment to the

Scalia, in his dissent, agreed with Justice O’Connor, repeating Constitution. The use of the words of the motto has no

what he stated in Deal, supra. 508 U.S. at 241. secular purpose, constitutes the advancement of the Christian

religion, and entangles government in religious affairs. See

Lastly, in Bailey v. United States, 516 U.S. 137 (1995), Lemon v. Kurtzman, 403 U.S. 602, 612, 613 (1971).

again dealing with the meaning of the word “use” in 28

U.S.C. § 924(c)(1), Justice O’Connor writing for the Supreme The use of the words of the motto is not of long standing or

Court said: “[T]he meaning of statutory language, plain or a ubiquitous practice, as is prayer at the opening of a

not, depends on context.” 516 U.S. at 145.15 legislative session and, thus, the words of the motto have not

become part of the fabric of our society. See Marsh v.

We believe that we are required to view the words of the Chambers, 463 U.S. 783 (1983).

motto as part of the text in which they are found and give to

them, as reasonable observers, the meaning intended by Jesus The display of the words of Jesus in the New Testament as

when he addressed his disciples as reported by Matthew in the a motto also constitutes an endorsement of the Christian

New Testament of the Christian Bible. religion and is, therefore, unconstitutional under County of

Allegheny v. American Civil Liberties Union, 492 U.S. 573

(1989).

15

An example of the ill result of decontextualizing a phrase is the

perverse meaning given to the statement, “The first thing we do, let’s kill

all the lawyers,” uttered by Dick the butcher in Shakespeare’s II Henry VI,

act. iv, scene 2. See Michael Franck The First Thing We Do; Let’s Kill

All The Lawyers, Mich. Bar J., Oct. 1981 at 725.

20 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 45

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

B. Defendants disciples when they heard Jesus say it to them. The State and

district judge’s meaning of Jesus’ words is different than their

Defendants’ position is generally as follows. meaning to a reader of the New Testament acquainted with its

text, and is also certainly different than the meaning a

1. lectionary would ascribe to them when it suggests they be

read as the text on a particular Sunday.

The text and history of the Establishment Clause of the

First Amendment, coupled with the Supreme Court’s Lastly, the meaning of the words of the motto is certainly

interpretations, allow for non-sectarian references to God in different than the meaning that would be ascribed to them by

government symbols and practice. The State of Ohio has not persons engaged in biblical discourse or debating a point of

adopted an “establishment of religion” simply by referring scripture.

respectfully to God. The United States motto, “In God We

Trust”, on coins and currency, 36 U.S.C. § 302, the use of the 2.

words “under God” in the Pledge of Allegiance, 4 U.S.C. § 4,

the approval of legislative prayer, and the support of military The Supreme Court, more than once, has dealt with efforts

chaplains, Marsh, supra, are all examples of permitted, to read words or phrases out of context. The predicate ruling

generalized, and respectful references to a higher power. That for these efforts is Judge Learned Hand’s observation in

the words of the motto are drawn from the words of Jesus NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941)

makes no difference. Standing apart from their original that:

context in the New Testament, the words of the motto do not

convey a message of endorsement of any one religion. Words are not pebbles in alien juxtaposition; they have

Rather, the words of the motto inculcate hope and only a communal existence; and not only does the

acknowledge the humility of Ohio’s government and its meaning of each interpenetrate the other, but all in their

leaders. The motto’s generalized reference to God is entirely aggregate take their purport from the setting in which

consistent with the text, the historic understanding, and the they are used, of which the relation between the speaker

modern interpretation of the Establishment Clause. See and the hearer is perhaps the most important part.

Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997), cert.

denied, 523 U.S. 1024 (1998). In Moskal v. United States, 498 U.S. 103 (1990), the

question was the meaning of the words “false made” in an

2. anti-counterfeiting statute. Justice Marshall, writing for the

Supreme Court, observed that “the meaning of language is

Defendants argue that the generalized nature of the words inherently contextual,” 498 U.S. at 108. Justice Scalia, in his

of the motto allow a wide range of permissible readings and dissent, quoted Justice Felix Frankfurter saying:

accommodate a wide range of views. They contend that the

words of Jesus are not necessarily Christian and that the . . . as Justice Frankfurter more poetically put it: “[I]f a

sacred text can be sanitized to eliminate its religious content. word is obviously transplanted from another legal source,

whether common law or other legislation, it brings its

Defendants do not take issue with, nor so much as mention, soil with it.”

the injunctive limitations imposed by the district court as to

forbidding mention of the origins of the words of the motto. 498 U.S. at 121 (citations omitted).

44 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 21

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

robes; the church speaks through the Cross, the Crucifix, C. The Court’s Task

the altar and shrine, and clerical raiment. Symbols of

State often convey political ideas just as religious Our task is to resolve these conflicting views in light of

symbols come to convey theological ones. Associated applicable precedent and with an understanding of the

with many of these symbols are appropriate gestures of significance of the words of the motto. In this connection,

acceptance or respect: a salute, a bowed or bared head, a some understanding of the use of mottos generally in public

bended knee. A person gets from a symbol the meaning life is an important consideration to our decision. We shall

he puts into it, and what is one man’s comfort and first discuss the precedents as we understand them, and then

inspiration is another’s jest and scorn. go on to discuss the use of mottos generally as well as the

significance of the words of the motto. After that, we shall

319 U.S. at 632-33. explain the reasons for the result in this case.

It is equally so with a state motto. The words of a motto are IV. The Precedents

a form of symbolic speech whether vocalized or read and,

therefore, take their meaning from the text in which they are A. Preliminary

located, as we shall describe.

In looking at the precedents underlying our decision,

B. Decontextualization “[C]andor compels acknowledgment . . . that we can only

dimly perceive the lines of demarcation in this extraordinarily

1. sensitive area of constitutional law.” Lemon, 403 U.S. at 612.

We believe that our job is to cull from the plethora of cases

Defendants, at oral argument, defined the meaning of the constituting Establishment Clause jurisprudence those which

words of the motto as follows: best lead to a proper decision.7

[they] endor[se] the notion that Ohio has a bright future, In our discussion of the precedents, we shall confine

that their citizens do, that people ought to be optimistic ourselves to the essential holding of the several cases which

and hopeful about the future. we believe best lead to a proper decision. In doing so, we will

not explicate on the variety of concurring and dissenting

This meaning is consistent with the meaning the district opinions displayed in each of these cases except where

court found in the words of the motto. See supra Part I.D. absolutely necessary to understand the holding of a particular

This meaning, of course, can be justified only if the words are decision. It is our intention to demonstrate an understanding

removed from the context in which they are found – and were

found by the Cincinnati schoolboy when he first suggested

they stand as the State of Ohio’s official motto. See supra

Part I.E. 7

One commentator has referred to the Supreme Court’s religious

freedom decisions as a “bewildering array.” See Catharine Cookson,

The meaning argued by the State, and accepted by the Foundation of Church State Relations, Focus on Law Studies Vol. XV,

district court, is significantly different than the meaning No. 1, p. 8 (Div. for Public Educ. of the Am. Bar Ass’n). See also Robert

intended by Jesus when, as reported by Matthew, he spoke to A. Sedler, Understanding the Establishment Clause: The Perspective of

Constitutional Litigation, 43 Wayne L. Rev. 1317 (1997) for a

his disciples, and certainly different than the meaning to the comprehensive review of the Supreme Court decisions in this area.

22 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 43

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

of, and appreciation for, the precedents which determine our ....

decision.

. . . Although the origin of mottoes is somewhat murky,

These cases allow us to set the base line which divides the their present role is well defined. They are most usefully

acceptable from the unacceptable in government activity, thought of as rousing and inspirational rallying cries. In

recognizing that government may not intrude into activity fact it is as battle cries that mottoes and slogans got their

which is essentially religious, and therefore confined to start, and they continue to serve very effectively in that

private action, as compared to secular activity which may capacity.

have a religious cast, but is action with which the government

may cooperate. In Wooley v. Maynard, 430 U.S. 705 (1977), the Supreme

Court had occasion to discuss the meaning of a motto when

B. Supreme Court Precedents it considered the State of New Hampshire’s requirement that

non-commercial vehicles bear license plates embossed with

The first of the modern Establishment Clause cases is the state motto “Live Free or Die.” The Supreme Court

Everson v. Board of Education, 330 U.S. 1 (1947) (use of tax defined the issue as follows:

money as part of a general program to provide transportation

for public and parochial students does not violate the We are thus faced with the question of whether the

Establishment Clause). There, the Supreme Court said: State may constitutionally require an individual to

participate in the dissemination of an ideological

The “establishment of religion” clause of the First message by displaying it . . .

Amendment means at least this: neither a state nor the

Federal Government can set up a church. Neither can 430 U.S. at 713.

pass laws which aid one religion, aid all religions, or

prefer one religion over another. Neither can force nor In West Virginia State Board of Education v. Barnette, 319

influence a person to go to or to remain away from U.S. 624 (1943), the Supreme Court reversed its position in

church against his will or force him to profess a belief or Minnersville School District v. Gobitis, 310 U.S. 586 (1940),

disbelief in any religion. No person can be punished for and held that it was unconstitutional to compel school

entertaining or professing religious beliefs or disbeliefs, children to participate in a compulsory flag salute and pledge

for church attendance or non-attendance. No tax in any of allegiance ceremony. In commenting on the significance

amount, large or small, can be levied to support any of these activities as symbolic speech, the Supreme Court

religious activities or institutions, whatever they may be said:

called, or whatever form they may adopt to each or

practice religion. Neither a state nor the Federal Symbolism is a primitive but effective way of

Government can, openly or secretly, participate in the communicating ideas. The use of an emblem or flag to

affairs of any religious organizations or groups and vice symbolize some system, idea, institution, or personality,

versa. In the words of Jefferson, the clause against is a short cut from mind to mind. Causes and nations,

establishment of religion by law was intended to erect “a political parties, lodges and ecclesiastical groups seek to

wall of separation between Church and State.” knit the loyalty of their followings to a flag or banner, a

color or design. The State announces rank, function, and

authority through crowns and maces, uniforms and black

42 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 23

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

of religion. We need not drain the meaning from the 330 U.S. at 15-16 (quoting Reynolds v. United States, 98 U.S.

reference to reach this conclusion. 145, 164 (1878).

980 F.2d at 448 (internal citations omitted). In Lemon v. Kurtzman, 403 U.S. 602 (1971) (school

financing program for non-public schools involved excessive

VI. Analysis government entanglement and therefore violated

Establishment Clause) the Supreme Court synthesized its

Before applying the precedents we have discussed to the jurisprudence since Everson, and enunciated what has come

words of the motto directly, we believe it important to have to be known as the Lemon test:

an understanding of the meaning and significance of mottos

generally, as well as the defendants’ (and the district court’s) Every analysis in this area must begin with consideration

efforts to decontextualize the words of the motto to achieve of the administrative criteria developed by the Court over

a secular meaning and, therefore, pass Establishment Clause many years. Three such tests may be gleaned from our

muster. cases. First, the statute must have a secular legislative

purpose; second, its principle or primary effect must be

A. Mottos one that neither advances nor inhibits religion; [and]

finally, the statute must not foster “an excessive

A “motto”, as defined in Webster’s Third New International entanglement with religion.”

Dictionary (1986), is a short suggestive expression of a

guiding principle.” 403 U.S. at 612 (internal citations omitted). The Supreme

Court observed that:

The American Heritage Dictionary of the English Language

1180 (3d ed. 1992) contains two definitions for motto: (1) “A Judicial caveats against entanglement must recognize that

brief statement used to express a principle, a goal, or an ideal” the line of separation, far from being a “wall,” is a

or (2) “a maxim as a guide to one’s conduct.” blurred, indistinct, and variable barrier depending on all

the circumstances of a particular relationship.

Brian Burrell, in The Words We Live By: The Creeds,

Mottoes, and Pledges that Have Shaped America, 158-59 403 U.S. at 614.

(The Free Press 1997), discusses mottos as follows:

In 1984, in Lynch v. Donnelly, 465 U.S. 668 (1984)(creche

. . . the practice of adopting brief sentiments or maxims as part of municipal Christmas display acceptable under

as something to go by is widespread. In the corporate Establishment Clause), Justice O’Connor,8 in a concurring

sphere, in academia, in associations and clubs, in the

military, and in the public forum, mottoes help people to

set their bearings. While only a small percentage of

people actively espouse mottoes, the majority are quick 8

Justice O’Connor’s views in this area of Constitutional law (as well

to defend them, and are generally pleased to have them. as other areas in which the Supreme Court appear to be divided into two

camps) are considered important beyond those of any of the other

This is because mottoes and slogans are the most justices. See Lisa Langendorfer, Establishing a Pattern: An Analysis of

succinct ready-made opinions . . . . the Supreme Court’s Establishment Clause Jurisprudence, 33 U. Rich. L.

Rev. 705 (1999).

24 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 41

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

opinion, gave a new gloss to the Lemon test with what has further acknowledge the dependence of our people and

come to be known as the endorsement test when she said: our Government upon the moral directions of the

Creator. At the same time it would serve to deny the

The Establishment Clause prohibits government from atheistic and materialistic concepts of communism with

making adherence to a religion relevant in any way to a its attendant subservience of the individual.

person’s standing in the political community.

Government can run afoul of that prohibition in two It goes on to say:

principal ways. One is excessive entanglement with

religious institutions, which may interfere with the It should be pointed out that the adoption of this

independence of the institutions, give the institutions legislation in no way runs contrary to the provisions of

access to government or governmental powers not fully the first amendment to the Constitution. This is not an

shared by nonadherents of the religion, and foster the act establishing a religion or one interfering with the

creation of political constituencies defined along “free exercise” of religion. A distinction must be made

religious lines. The second and more direct infringement between the existence of a religion as an institution and

is government endorsement or disapproval of religion. a belief in the sovereignty of God. The phrase “under

Endorsement sends a message to nonadherents that they God” recognizes only the guidance of God in our

are outsiders, not full members of the political national affairs. The Supreme Court has clearly indicated

community, and an accompanying message to adherents that the references to the Almighty which run through our

that they are insiders, favored members of the political laws, our public rituals, and our ceremonies in no way

community. Disapproval sends the opposite message. flout the provisions of the first amendment.

465 U.S. at 687-88 (internal citations omitted). Justice H.R. No. 83-1693, 1954 U.S.C.C.A. 2339.

O’Connor went on to explain:

In Sherman v. Community Consolidated School District 21

The purpose prong of the Lemon test asks whether of Wheeling Township, 980 F.2d 437 (7th Cir. 1992), the

government’s actual purpose is to endorse or disapprove Court of Appeals for the Seventh Circuit, setting aside the

of religion. The effect prong asks whether, irrespective voluntary nature of the exercise, turned back a challenge to

of government’s actual purpose, the practice under the pledge of allegiance by the father of a minor child that the

review in fact conveys a message of endorsement or inclusion of the reference to God was a violation of the

disapproval. An affirmative answer to either question Establishment Clause. The essence of the Seventh Circuit

should render the challenged practice invalid. decision is best expressed in the concurring opinion which

says:

465 U.S. at 690 (emphasis added).

The Pledge of Allegiance with all of its intended

In 1985, in Wallace v. Jaffree, 472 U.S. 38 (1985) (statute meaning does not effectuate an establishment of religion.

authorizing one minute of silent school prayer held If legislative prayer based upon the Judeo-Christian

unconstitutional), a plurality of the Supreme Court approved tradition is permissible . . ., and a Christmas nativity

the endorsement test when it said: “In applying the purpose scene erected by a city government is permissible . . .,

test, it is appropriate to ask ‘Whether government’s actual then certainly the less specific reference to God in the

purpose is to endorse or disapprove religion.’” Id. at 56 Pledge of Allegiance cannot amount to an establishment

40 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 25

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

.... (quoting Lynch at 690). In her concurring opinion, Justice

O’Connor refined the endorsement test, saying:

We need not engage in such empirical investigation

because “we do not ask whether there is any person who The endorsement test does not preclude government

could find an endorsement of religion, whether some from acknowledging religion or from taking religion into

people may be offended by the display, or whether some account in making law and policy. It does preclude

reasonable person might think [the State] endorses government from conveying or attempting to convey a

religion.” “[T]he endorsement inquiry is not about the message that religion or a particular religious belief is

perceptions of particular individuals or saving isolated favored or preferred. Such an endorsement infringes the

non-adherents from the discomfort of viewing symbols religious liberty of the nonadherent, for “[w]hen the

of faith to which they do not subscribe.” It is instead an power, prestige and financial support of government is

objective inquiry that this court is fully equipped to placed behind a particular religious belief, the indirect

conduct with the facts at hand. After making that coercive pressure upon religious minorities to conform to

inquiry, we find that a reasonable observer, aware of the the prevailing officially approved religion is plain.” At

purpose, context, and history of the phrase “In God we issue today is whether state moment of silence statutes in

trust,” would not consider its use or its reproduction on general, and Alabama’s moment of silence statute in

U.S. currency to be an endorsement of religion. particular, embody an impermissible endorsement of

prayer in public schools.

74 F.3d at 217 (internal citations omitted).

472 U.S. at 70 (internal citations omitted). Also in Wallace,

2. The Pledge Of Allegiance Justice O’Connor first articulated what has come to be known

as the reasonable observer test when she said:

The Pledge of Allegiance was initially given official

recognition in June 1942 by a joint resolution of Congress. It The relevant issue is whether an objective observer,

was amended to include the words “one nation under God” by acquainted with the text, legislative history, and

a joint resolution approved June 14, 1954. 68 Stat. 249. The implementation of the statute, would perceive it is a state

legislative history of the joint resolution, while skirting close endorsement . . . .

to giving an impermissible religious cast to the inclusion,

states: 476 U.S. at 76.

At this moment of our history the principles underlying Finally, in School District of Grand Rapids v. Ball, 473

our American Government and the American way of life U.S. 373 (1985) (shared and released time school programs

are under attack by a system whose philosophy is at violates Establishment Clause), the Supreme Court brought

direct odds with our own. Our American Government is Justice O’Connor’s clarifications together when it said:

founded on the concept of the individuality and the

dignity of the human being. Underlying this concept is It follows that an important concern of the effects test

the belief that the human person is important because he is whether the symbolic union of church and state

was created by God and endowed by him with certain effected by the challenged governmental action is

inalienable rights which no civil authority may usurp. sufficiently likely to be perceived by adherents of the

The inclusion of God in our pledge therefore would controlling denominations as an endorsement, and by the

26 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 39

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

nonadherents as a disapproval, of their individual It will be of great spiritual and psychological value to our

religious choices. country to have a clearly designated national motto of

inspirational quality in plain, popularly accepted English.

473 U.S. at 390.

H.R. No. 84-1959, 1956 U.S.C.C.A. 3720.

C. Reasonable Observer

In Aronow v. United States, 432 F.2d 242 (9th Cir. 1970),

As to the reasonable observer, Justice O’Connor clarified the Court of Appeals for the Ninth Circuit declined to order

the definition in her concurring opinion, with two other a three-judge court, convened under 28 U.S.C. § 2286, to

justices joining, in Capitol Square Review & Advisory Board consider a challenge to the national motto on the grounds that:

v. Pinette, 515 U.S. 753 (1995) (State of Ohio did not violate

Establishment Clause in allowing the Ku Klux Klan to It is quite obvious that the national motto and the slogan

display crosses in Capitol Square9 during Christmas season) on coinage and currency “In God We Trust” has nothing

stating: whatsoever to do with the establishment of religion. Its

use is of a patriotic or ceremonial character and bears no

I therefore disagree that the endorsement test should true resemblance to a governmental sponsorship of a

focus on the actual perception of individual observers, religious exercise.

who naturally have differing degrees of knowledge.

Under such an approach, a religious display is necessarily 432 F.2d at 243. The Ninth Circuit went on to say:

precluded so long as some passersby would perceive a

governmental endorsement thereof. In my view, While “ceremonial” and “patriotic” may not be

however, the endorsement test creates a more collective particularly apt words to describe the category of the

standard to gauge “the ‘objective’ meaning of the national motto, it is excluded from First Amendment

[government’s] statement in the community.” In this significance because the motto has no theological or

respect, the applicable observer is similar to the ritualistic impact. As stated by the Congressional report,

“reasonable person” in tort law, who “is not to be it has “spiritual and psychological value” and

identified with any ordinary individual, who might “inspirational quality.”

occasionally do unreasonable things,” but is “rather a

personification of a community ideal of reasonable 432 F.2d at 243-44 (internal footnotes omitted).

behavior, determined by the [collective] social

judgment.” Thus, “we do not ask whether there is any In Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996),

person who could find an endorsement of religion, the Court of Appeals for the Tenth Circuit found a challenge

whether some people may be offended by the display, or to the national motto under the Establishment Clause without

whether some reasonable person might think [the State] merit, stating:

endorses religion.” Saying that the endorsement inquiry

should be conducted from the perspective of a The reasonable observer, much like the reasonable

person of tort law, is the embodiment of a collective

standard and is thus “deemed aware of the history and

9 context of the community and forum in which the

This is the same square in which the state has installed the great seal

with the words of the motto. See supra Part I.C. religious display appears.”

38 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 27

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

discrimination does not immunize such practices from hypothetical observer who is presumed to possess a

scrutiny under the Fourteenth Amendment. certain level of information that all citizens might not

share neither chooses the perceptions of the majority over

492 U.S. at 630 (internal citations omitted and emphasis those of a “reasonable non-adherent,” nor invites

added). disregard for the values the Establishment Clause was

intended to protect. It simply recognizes the fundamental

B. In God We Trust And The Pledge Of Allegiance difficulty inherent in focusing on actual people: There is

always someone who, with a particular quantum of

The Supreme Court, while justifying inclusion of God in knowledge, reasonably might perceive a particular action

the Pledge of Allegiance and “In God We Trust,” an as an endorsement of religion. A State has not made

adaptation of text found in Psalms, as our national motto, has religion relevant to standing in the political community

not yet decided a direct challenge to these practices. simply because a particular viewer of a display might feel

However, the courts of appeals have dealt with both the uncomfortable.

national motto and the pledge of allegiance. Legislative

prayer as constitutional has already been discussed. See supra 515 U.S. at 779-80 (internal citations omitted).

Part III.D.2.

D. The Lemon Test

1.

1.

The national motto, “In God We Trust,” was enacted into

law in 1956. See 70 Stat. 732, P.L. 851, 1956. After We shall not discuss either the purpose or entanglement

describing the history of its use in coinage, beginning with the prongs of the Lemon test. Illustrative of a state statute held

Act of March 3, 1865 (13 Stat. 518), and the adoption of the unconstitutional under the purpose prong is Edwards v.

Star Spangled Banner13 as our national anthem (and Aguillard, 482 U.S. 578 (1987) (mandatory teaching of

particularly its fourth stanza),14 the legislative history evolution violates Establishment Clause).10 Illustrative of a

regarding our national motto reads:

10

Also illustrative of the application of the purpose prong is the

13 Supreme Court’s decision in Stone v. Graham, 449 U.S. 39 (1980)

The Star Spangled Banner was designated as our National Anthem (holding unconstitutional a Kentucky statute requiring the posting of the

in 1931. See 46 Stat. 1508; 36 U.S.C. § 170. Ten Commandments, purchased with private contributions, on the wall of

14 each public school as having no secular legislative purpose). Ten

The fourth stanza of the Star Spangled Banner is as follows: Commandments jurisprudence will likely be revisited one day by the

Supreme Court given the efforts of lower courts to work around this

‘O, thus be it ever when freemen shall stand decision, and the contentiousness of the issue within communities. See

Between their lov’d home and the war’s desolation. Suhres v. Board of Comm’s, 894 F. Supp. 927 (W.D. N.C. 1995), 55 F.

Blest with vict’ry and peace may the heav’n rescued land Supp. 2d 834 (W.D. N.C. 1999); Alabama Freethought Assn. v. Moore,

Praise the power that hath made and preserved us a nation. 893 F. Supp. 1522 (N.D. Ala. 1995). But see Harvey v. Cobb County,

Then conquer we must when our cause it is just, Georgia, 811 F. Supp. 669 (N.D. Ga. 1993), aff’d 15 F.3d 1097 (11th Cir.

And this be our motto – ‘In God is our trust.’ 1994). See also Marc D. Stern, American Jewish Congress, Comm'n on

And the Star-Spangled Banner in triumph shall wave Law and Social Action, The Ten Commandments: Innocent Display or

O’er the land of the free and the home of the brave.’ Weapons in a Religious War, Sept. 1999.

28 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 37

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

state statute held unconstitutional under the excessive 465 U.S. at 716 (internal citations and footnote omitted).

entanglement clause is Lemon, supra (state program

supplementing the salaries of parochial school teacher of In Allegheny, supra, Justice Blackmun, in a footnote to his

secular subjects violates Establishment Clause). majority opinion, in explaining legislative prayer as

constitutional in Marsh, said:

2.

The function and history of this form of ceremonial

Three cases in which the Supreme Court considered the deism suggest that “those practices are not understood as

effects prong of Lemon focus the rule for our purposes. These conveying government approval of particular religious

are: Marsh v. Chambers, 463 U.S. 783 (1983) (opening beliefs.”

legislative session with prayer does not violate Establishment

Clause), Lynch v. Donnelly, 465 U.S. 668 (1984) (creche as 492 U.S. at 595-96 n. 46 (quoting Lynch at 717) (emphasis

part of Christmas display does not violation Establishment added). Justice Blackmun again used the term in

Clause), and Allegheny v. American Civil Liberties Union, distinguishing creche displays, references to God in the motto,

492 U.S. 573 (1989) (stand-alone creche on stairs of public and in the pledge of allegiance. See 492 U.S. at 603.

building violates Establishment Clause; Hanukkah menorah

as part of Christmas display does not violate Establishment Justice O’Connor, in her concurring opinion in Allegheny,

Clause). explained ceremonial deism as follows:

In Marsh, the Supreme Court observed that: Justice Kennedy submits that the endorsement test is

inconsistent with our precedents and traditions because,

The opening of sessions of legislative and other in his words, if it were “applied without artificial

deliberative public bodies with prayer is deeply exceptions for historical practice,” it would invalidate

embedded in the history and tradition of this country. many traditional practices recognizing the role of religion

From colonial times through the founding of the in our society.” This criticism shortchanges both the

Republic and ever since, the practice of legislative prayer endorsement test itself and my explanation of the reason

has coexisted with the principles of disestablishment and why certain long standing government acknowledgments

religious freedom. In the very courtrooms in which the of religion do not, under that test, convey a message of

United States District Judge and later three Circuit endorsement. Practices such as legislative prayers or

Judges heard and decided this case, the proceedings opening Court sessions with “God save the United States

opened with an announcement that concluded, “God save and this honorable Court” serve the secular purposes of

“solemnizing public occasions” and “expressing

confidence in the future” These examples of ceremonial

Of particular interest to our decision is the fact that the Supreme deism do not survive Establishment Clause scrutiny

Court in Stone declined to accept the argument that the Ten simply by virtue of their historical longevity alone.

Commandments can be removed from their biblical setting and simply be Historical acceptance of a practice does not in itself

considered as the “basic tenets of a particular scheme of Western validate that practice under the Establishment Clause if

philosophical thought,” as said by one of the justices of the Kentucky

Supreme Court which split equally on the lower court decision finding the practice violates the values protected by that Clause,

their posting constitutional. See Stone v. Graham, 599 S.W.2d 157, 158 just as historical acceptance of racial or gender based

(Ky. 1980); see also, Harvey v. Cobb County, supra.

36 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 29

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

with legislative sessions. These practices have come to be the United States and this Honorable Court.” The same

discussed under the rubric “ceremonial deisms,” a term first invocation occurs at all sessions of this Court.

found in the literature in a reference to the 1962 Meiklejohn

Lecture at Brown University given by Dean Eugene Rostow 463 U.S. at 786. It then went on to find the practice

of Yale University Law School.12 Regrettably, the reference constitutional stating:

is in a book review by Professor Arthur E. Sutherland of

Harvard University Law School and then only in a footnote. In light of the unambiguous and unbroken history of

See Sutherland Book Review, 40 Ind. L.J. 83, 86 n. 7 (1965). more than 200 years, there can be no doubt that the

Professor Sutherland said: practice of opening legislative sessions with prayer has

become part of the fabric of our society. To invoke

. . . constitutional tolerance of the opening prayers in the Divine guidance on a public body entrusted with making

Congress would require some other theory – possibly the the laws is not, in these circumstances, an

idea that another class of public activity, which the Dean “establishment” of religion or a step toward

of the Yale Law School recently called “ceremonial establishment; it is simply a tolerable acknowledgment of

deism,” can be accepted as so conventional and beliefs widely held among the people of this country.

uncontroversial as to be constitutional.

463 U.S. at 792.

Id. at 86 (quoting Dean Rostow from memory).

In Lynch, the Supreme Court, in finding the display of a

Justice Brennan, in his dissenting opinion in Lynch, supra, creche as part of a business district Christmas display

brought the phrase into Supreme Court jurisprudence when he compatible with the Establishment Clause, said that “[w]e are

said: unable to discern a greater aid to religion deriving from

inclusion of the creche than from those benefits and

Finally, we have noted that government cannot be endorsements previously held not violative of the

completely prohibited from recognizing in its public Establishment Clause.” 465 U.S. at 682.

actions the religious beliefs and practices of the

American people as an aspect of our national history and Allegheny, with its bifurcated holding, is particularly

culture. While I remain uncertain about these questions, instructional. The creche scene stood on the grand staircase

I would suggest that such practices as the designation of of a courthouse alone and included as part of the display

“In God We Trust” as our national motto, or the words of the New Testament “Gloria in Excelcis Deo”

references to God contained in the Pledge of Allegiance (“Glory to God in the Highest”). The Supreme Court said:

to the flag can best be understood, in Dean Rostow’s apt

phrase, as a form of “ceremonial deism,” protected from . . . the creche sits on the Grand Staircase, the “main” and

Establishment Clause scrutiny chiefly because they have “most beautiful part” of the building that is the seat of

lost through rote repetition any significant religious county government. No viewer could reasonably think

content. that it occupies this location without the support and

approval of the government. Thus, by permitting the

“display of the creche in this particular physical setting”

12

See also, Rostow, Sutherland Investigate 'Religion and First the county sends an unmistakable message that it

Amendment,' Brown Daily Herald, May 4, 1964, at 1,4.

30 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 35

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

supports and promotes the Christian praise to God that is In Stein v. Plainwell Community Schools, 822 F.2d 1406,

the creche’s religious message. 1410 (6th Cir. 1987), we dealt with the practice of the

delivery of invocation and benedictions at public high school

492 U.S. at 599-600 (footnotes and internal citations omitted). commencement ceremonies, holding invalid those that “are

framed and phrased so that they 'symbolically place the

The menorah, however, was part of an annual Christmas government's seal of approval on one religious view'-- the

display outside a city-county building and stood next to a Christian view,” (citing Marsh v. Chambers, supra at 792.)

Christmas tree. In finding that it passed constitutional muster

the Supreme Court said: In Washegesic v. Bloomingdale Public Schools, 33 F.3d

679 (6th Cir. 1994), we held unconstitutional the placing of

. . . it is not “sufficiently likely” that residents of a portrait of Jesus in the hallway of a public school. In so

Pittsburgh will perceive the combined display of the tree, doing we rejected the argument that the picture has meaning

the sign, and the menorah as an “endorsement” or to all religions and that it is not inherently a symbol of

“disapproval . . . of their individual religious choices.” Christianity. On the authority of Lemon, supra, and Marsh,

While an adjudication of the display’s effect must taken supra, we said:

into account the perspective of one who is neither

Christian nor Jewish, as well as of those who adhere to But Christ is central only to Christianity, and his portrait

either of these religions, ibid., the constitutionality of its has a proselytizing, affirming effect that some non-

effect must also be judged according to the standard of a believers find deeply offensive. Though the portrait, like

“reasonable observer.” . . . When measured against this school prayers and other sectarian religious rituals and

standard, the menorah need not be excluded from this symbols, may seem “de minimis” to the great majority,

particular display. The Christmas tree alone in the particularly those raised in the Christian faith and those

Pittsburgh location does not endorse Christian belief; who do not care about religion, a few see it as a

and, on the facts before us, the addition of the menorah governmental statement favoring one religious group and

“cannot fairly be understood to” result in the downplaying others. It is the rights of these few that the

simultaneous endorsement of Christian and Jewish faiths. Establishment Clause protects in this case.

On the contrary, for purposes of the Establishment

Clause, the city’s overall display must be understood as 33 F.3d at 684.

conveying the city’s secular recognition of different

traditions for celebrating the winter-holiday season. V. Ceremonial Deism11

492 U.S. at 620 (footnotes and internal citations omitted). A. Preliminary

Practices closer to home which now require discussion are

our national motto, “In God We Trust,” the inclusion of God

into the pledge of allegiance, and again, prayer in conjunction

11

See generally, Steven B. Epstein, Rethinking the Constitutionality

of Ceremonial Deism, 96 Colum. L. Rev. 2083 (1996).

34 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 31

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

test of Lemon and found each of its criteria: secular purpose, E. Sixth Circuit Precedents

primary effect, and entanglement, were present. We said:

1.

Moreover, the content of the prayers delivered at the

school board meetings clearly went beyond what was As we read the Establishment Clause jurisprudence of this

necessary to solemnize or bring a more businesslike circuit we find consistency with what we have said above.

decorum to such meetings. The prayers frequently called

for divine assistance or affirmation, sometimes by using In American Civil Liberties Union of Kentucky v. Wilkins,

veiled references to the Bible. In addition, many prayers 895 F.2d 1098 (6th Cir. 1990) and Doe v. City of Clawson,

mentioned Jesus by name. The board could have used 915 F.2d 244 (6th Cir. 1990), we found nativity scenes not

the inspirational words of Abraham Lincoln or, as in fact offensive to the Establishment Clause because the settings in

one speaker did, the speeches of Dr. Martin Luther King, which they were displayed were much like the setting of the

Jr. to achieve the same ends. Instead, the board relied Menorah in Allegheny, supra, i.e., part of a Christmas display.

upon the intrinsically religious practice of prayer to In Americans United for Separation of Church and State v.

achieve its stated secular end. City of Grand Rapids, 980 F.2d 1538 (6th Cir. 1992), sitting

en banc, we held that a menorah display erected during the

171 F.3d at 384. We concluded: Hanukkah season in a traditional public forum did not violate

the Establishment Clause because it could not be seen as an

. . . we do not mean to imply that religion must be kept endorsement of religion by a reasonable observer. The

entirely out of the public school system. Certainly decision followed and explicated on Justice O’Connor’s

students might themselves wish to pray during the time definition of a reasonable observer:

they spend at school. It is only when the government,

through its school officials, chooses to introduce and In attempting to define the “reasonable observer,” we

exhort religion in the school system that Establishment must look to the guidelines established by precedents

Clause concerns take shape. That is what has happened both from this court and the Supreme Court. Justice

in the present case, with the school board’s involvement O’Connor, who first promulgated the endorsement test,

in promoting prayer crossing the line of constitutional has emphasized that, when adopting the perspective of

infirmity. the reasonable observer, courts must consider all of the

facts presented in each case. “Every government practice

171 F.3d at 385-86. must be judged in its unique circumstances to determine

whether it constitutes an endorsement or disapproval of

2. religion.” She repeated this warning in Allegheny, noting

that “the endorsement test depends on a sensitivity to the

We also have had occasion to deal with situations in which unique circumstances and context of a particular

public schools incorporated either a reference to Jesus, or the challenged practice . . . .”

person of Jesus particularly, into a school activity. Because

of the clearly sectarian nature of what was done, we have However, Justice O’Connor has also recognized that

found a violation of the Establishment Clause. when a court analyzes a religious display, some facts

should receive greater consideration than others. For

example, certain religious practices that might otherwise

32 Am. Civil Liberties Union of Ohio, et al. No. 98-4106 No. 98-4106 Am. Civil Liberties Union of Ohio, et al. 33

v. Capitol Square Review, et al. v. Capitol Square Review, et al.

be unconstitutional are valid if their “history and people of the United States did not adopt the Bill of

ubiquity” would convince a reasonable observer that such Rights in order strip the public square of every last shred

practices merely represent an “acknowledgment” of of public piety.

religion. Thus, because of their “history and ubiquity,”

Justice O’Connor approved the constitutionality of Rejecting the label “nonsectarian,” Dr. Chaudhuri and

legislative prayers such as those in Marsh v. Chambers. amicus curiae (the National Committee for Public

She has also stated that the Establishment Clause permits Education and Religious Liberty) persist in labeling the

“government declaration of Thanksgiving as a public prayers in question as “Christian.” The plaintiff and the

holiday, printing of ‘In God We Trust’ on coins, and Committee imply that TSU’s purpose in allowing the

opening court sessions with ‘God save the United States prayers was to advance the cause of Christianity. But

and this honorable court.’” She repeated this reasoning in these prayers, lacking any explicit or implicit reference to

Allegheny: Jesus Christ, do not strike us as overtly Christian.

It is the combination of the longstanding existence 130 F.3d at 236 (internal citations omitted).

of practices such as opening legislative sessions with

legislative prayers..., as well as their nonsectarian In Hawle v. City of Cleveland, 24 F.3d 814, (6th Cir. 1994),

nature, that lead me to the conclusion that those we found that the lease of airport space for a chapel did not

particular practices, despite their religious roots, do violate the Establishment Clause because:

not convey a message of endorsement of particular

religious beliefs. . . . the chapel serves the secular purpose of

accommodating the religious needs of travelers [sic] and

980 F.2d at 1544 (internal citations omitted). providing them with a place for rest and comfort.

Moreover, because a reasonable observer would not

In Chaudhuri v. State of Tennessee, 130 F.3d 232 (6th Cir. conclude that the city endorses religion by allowing the

1997), a college professor who followed the Hindu religion diocese to maintain the chapel, the chapel’s lease and its

did not prevail on his challenge to a moment of silence, or authorizing ordinance do not constitute an endorsement

prayer, at university functions because of the non-sectarian of religion, and thus their primary effect is one that

nature of the occurrence. There we said: neither advances nor inhibits religion. We find, finally,

that the chapel’s lease and its authorizing ordinance also

Any prayer has a religious component, obviously, but do not foster an excessive government entanglement with

a single-minded focus on the religious aspects of religion.

challenged activities – which activities, in an

Establishment Clause case, are religiously-oriented by 24 F.3d at 822.

definition – would extirpate from public ceremonies all

vestiges of the religious acknowledgments that have been Lastly, in our most recent exposition on the Establishment

customary at civic affairs in this country since well Clause, Coles v. Cleveland Board of Education, 171 F.3d 369

before the founding of the Republic. The Establishment (6th Cir. 1999), we found that the Cleveland Board of

Clause does not require – and our constitutional tradition Education’s practice of opening each meeting with a prayer

does not permit – such hostility toward religion. The violated the Establishment Clause. In coming to this

conclusion, we analyzed the practice under the three prong