Opposition Brief — Lambeth v. Board of Commissioners

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J.J.) (noting that the Establishment Clause does not prohibit

singing the national anthem with its concluding verse

“And this be our motto: ‘In God is our trust’” at public school

functions).

More recently, in E/k Grove Unified School District v.

Newdow, 542 U.S. 1, 124 S. Ct. 2301 (2004), Chief Justice

Rehnquist authored a concurring opinion, joined by Justice

O’Connor, in which he strongly suggested that the national!

motto “In God We Trust” did not violate the Establishment

Clause, stating as follows:

... [Ojur national culture allows public

recognition of our Nation’s religious history and

character. In the words of the House Report that

accompanied the insertion of the phrase “under

God” in the Pledge: “From the time of our earliest

history our peoples and our institutions have

reflected the traditional concept that our Nation

was founded on a fundamental belief in God.”

H.R.Rep. No. 1693, 83d Cong., 2d Sess., 2 (1954).

Giving additional support to this idea is our

national anthem “The Star-Spangled Banner,”

adopted as such by Congress in 1931. 36 U.S.C.

§ 301 and Historical and Revision Notes. The last

verse ends with these words:

“Then conquer we must, when our cause it is just,

“And this be our motto: ‘In God is our trust.’

“And the star-spangled banner in triumph shall

wave

“O’er the land of the free and the home of the

brave!”

124 S. Ct. at 2319 (Rehnquist, C.J., concurring).

Justice O’Connor, in a separate concurring opinion in

the Newdow case, reiterated that the category of “ceremonial

deism ... clearly encompasses ... the national motto

(“In God We Trust”),” and that, therefore, the display of the

national motto is not a constitutional violation. !24 S. Ct. at

2323 (O’Connor, J., concurring).

Thus, as shown in the above discussion, every member

of the Supreme Court who has expressed any opinion about

the national motto has stated that it poses no Establishment

Clause problems. In fact, three current Justices of the

Supreme Court, as well as ten prior Justices, have recognized

that the national motto does not violate the Establishment

Clause. No member of this Court, past or present, has ever

suggested otherwise. Indeed, for decades, this Court and

individual Justices “have grounded [their Establishment

Clause] dec.sions in the oft-repeated understanding,”

see Seminolv Tribe of Florida v. Florida, 517 U.S. 44, 67,

116 S. Ct. 1114 (1996), that the national motto, and-similar

references, are constitutional. The opinions of this Court in

Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330,

77 L. Ed. 2d 1019 (1983), School District of Abington

Township v. Schempp, and Engel v. Vitale, have repeatedly

affirmed the constitutionality of official references to the

Nation’s religious heritage and “the many manifestations in

our public life of beliefin God, “ngel, 370 U.S. at 435 n.21,

that form “part of the fabric of our society,” Marsh, 463 U.S.

at 792, and that acknowledge that “our national life reflects

a religious people.” Abington Township, 374 U.S. at 213.

This Court’s opinions establish as settled law that official

____ acknowledgments, in public life, of the Nation’s religious

heritage and character do not constitute a prohibited

endorsement of religion and do not otherwise violate the

Establishment Clause. “[P]ublic acknowledgment of the

[Nation’s] religious heritage long officially recognized by

these three constitutional branches of government” renders

“farfetched” “[a]ny notion that these symbols pose a real

danger of establishment of a state church.” Lynch, 465 U.S.

at 686. As pointedly explained by this Court in County of

Allegheny, the national motto is one such permissible official

acknowledgment of the role of religion in the Nation’s culture

and history, and it is “consistent with the proposition that

government may not communicate an endorsement of

religious belief.” 492 U.S. at 602-603.

In sum, this Court and its Justices have consistently

pronounced that our national motto “In God We Trust” does

not run afoul of the Establishment Clause and that the display

of the national motto is not a constitutional violation.

A governmental entity’s use or display of the national motto

“In God We Trust” does not violate the Establishment Clause.

The posting of the national motto by Davidson County on

its Governmentai Building is

no more an endorsement of religion than ...

legislative prayers ..., government declaration

of Thanksgiving as a public holiday, printing of

“In God We Trust” on coins, and opening court

sessions with “God save the United States and this

honorable court.” [These] government

acknowledgments of religion serve, in the only

ways reasonably possible in our culture, the

legitimate secular purpose of solemnizing public

occasions, expressing confidence in the future,

and encouraging the recognition of what is worthy

of appreciation in society. For that reason, and

because of their history and ubiquity, [these]

practices are not understood as conveying

government approval of particular religious

beliefs. [They] cannot fairly be understood to

convey a government endorsement of religion.

Lynch, 465 U.S. at 692-93, 104 S. Ct. at 1369-70 (O’Connor,

J., concurring).

Il. There is no disagreement among the Circuit Courts,

which have consistently held that our national motto

does not violate the Establishment Clause, that needs

resolution by this Court.

The United States Courts of Appeals that have considered

the issue of whether our national motto “In God We Trust”

violates the Establishment Clause have uniformly held that

a governmental entity’s use or display of the national motto

does not violate the Establishment Clause. Respondent’s

research has failed to uncover a single case, including any

District Court opinion, in which the display of the national

motto has been held to violate the Establishment Clause.

Accordingly, there is no disagreement amount the Circuit

Court which requires the atiention of this Court.

In Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996),

cert. denied, 517 U.S. 1211, 116 S. Ct. 1830, 134 L. Ed. 2d

934 (1996), the Tenth Circuit squarely and unambiguously

held that the national motto “In God We Trust” does not

violate the Establishment Clause. The Tenth Circuit held that

the national motto “clearly [has] a secular purpose, .. .

symbolizes the historical role of religion in our society, . . .

fosters patriotism, and expresses confidence in the future.”

74 F.3d at 216 (numerous citations omitted). The Tenth

Circuit further held that “[t}he motto’s primary effect is not

to advance religion” and that it “does not create an intimate

relationship of the type that suggests unconstitutional

entanglement of church and state.” /d. Further, the Tenth

Circuit held that a reasonable observer, “aware of the phrase

‘In God We Trust,’ would not consider its use . . . to be an

endorsement of religion.” 74 F.3d at 217.

Similarly, in O'Hair v. Murray, 588 F.2d 1144 (Sth Cir.

1979), cert. denied, 442 U.S. 930, 99 S. Ct. 2862, 61 L. Ed.

2d 298 (1979), the Fifth Circuit held that the national motto

did not violate the Establishment Clause. In so holding, the

Fifth Circuit “affirmed the opinion of the district court,”

which opinion stated in part as follows:

... [T]he national motto ... has nothing

whatsoever to do with the establishment of

religion. Its use is of a patriotic or ceremonial

character and bears no true resemblance to a

government sponsorship of a religious

exercise. ... Moreover, it would be ludicrous to

argue that the use of the national motto fosters

any excessive government entanglement with

religion. ...

The Court notes that language in Supreme

Court cases indicates that the national motto .. .

does not infringe on First Amendment rights.

In School District of Abington Township v.

Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed.

2d 844 (1963) . .. , the Court recognized that in

the national public life there are many

manifestations of a belief in a Supreme Being

which do not violate the First Amendment. As

Justice Brennan explained in a concurring

opinion, these various activities include the use

of the motto in “In God We Trust.” “It is not that

the use of these fou. ~“ords can be dismissed as

‘de minimis’. . . . The truth is that we have simply

interwoven the motto so deeply into the fabric of

our civil polity that its present use may well not

represent the type of involvement, which the First

Amendment prohibits.”

O'Hair v. Blumenthal, 462 F. Supp. 19, 19-20 (W.D. Tex.

1978) (some citations omitted).

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

the Ninth Circuit upheld the dismissal of plaintiff’s

complaint, which asserted that the national motto was

violative of the Establishment Clause. In holding that our

national motto did not run afoul of the Establishment Clause,

the Ninth Circuit stated as follows:

It is obvious that the national motto . . . has

nothing whatsoever to do with the establishment

of religion. Its use is of a patriotic or ceremonial

character and bears no true resemblance to a

governmental sponsorship of religious exercise.

432 F.2d at 243.

In addition to the opinion of the Fourth Circuit below in

this case, the Fourth Circuit on at least two other occasions

has held that the use of the phrase “In God We Trust” does

not violate the Establishment Clause. See North Carolina

Civil Liberties Union Legal Foundation v. Constangy, 947

F.2d 1145, 1151 (4th Cir. 1991), cert. denied, 505 U.S. 1219,

112 S. Ct. 3027, 120 L. Ed. 2d 898 (1992) (stating that the

words “In God We Trust” “have been upheld as a ‘patriotic

and ceremonial’ motto with ‘no theological or ritualistic

impact’”); Hall v. Bradshaw, 630 F.2d 1018, 1022 (4th Cir.

1980), cert. denied, 450 U.S. 965, 101 S. Ct. 1480, 67 L. Ed.

2d 613 (1981) (stating that references to God in governmental

ceremonies, coins, and seals — such as “In God We Trust” —

“do not violate the Establishment Clause”).

At least four other United States Circuit Courts of Appeal

have stated, or strongly suggested, that the use of the national

motto does not violate the Establishment Clause. See, e.g.,

Glassroth v. Moore, 335 F.3d 1282, 1300 (11th Cir. 2003)

(strongly suggesting that the national motto does not violate

the Establishment Clause); Freethought Society of Greater

Philadelphia v. Chester County, 334 F.3d 247, 264-65

(3rd Cir. 2003) (agreeing that the use of “In God We Trust”

does not violate the Establishment Clause); American Civil

Liberties Union of Ohio v. Capital Square Review and

Advisory Board, 243 F.3d 289, 301 (6th Cir. 2001)

(“The Supreme Court has never questioned the proposition

that the national motto can withstand scrutiny under the

Establishment Clause, and we should be utterly amazed if

the Court were to question the motto’s constitutionality

now”); Sherman v. Community Consolidated School Dist.

21, 980 F.2d 437 (7th Cir. 1992) (observing that the phrase

“In God We Trust” is “secular, having lost [its] original

religious significance”); citing ACLU v. St. Charles, 794 F.2d

265, 271 (7th Cir. 1986), cert. denied, 479 U.S. 961, 107

S. Ct. 458, 93 L. Ed. 2d 403 (1986).

Accordingly, every Circuit Court that has ever addressed

the constitutionality of our national motto has held wat it

does not violate the Establishment Clause. There is no

disagreement among the lower federal courts regarding this

issue that necessitates review by this Court.

Ill. Petitioner’s Reliance on McCreary County, Ky. v.

American Civil Liberties Union of Ky., 545 U.S. __,

125 S. Ct. 2722 (2005) is Misplaced.

Petitioners argue that this Court's opinion in McCreary

County, Ky. v. American Civil Liberties Union of Ky.,

545 U.S. _, 125 S. Ct. 2722 (2005), which addressed the

display of the Ten Commandments, compels a reversal of

the Fourth Circuits’ opinion in this matter. This reliance upon

McCreary County is misplaced.

McCreary County addressed the display of Ten

Commandments, which this Court has held “are undeniably

a sacred text in the Jewish and Christian faiths” and are “an

instrument of religion.” 545 U.S. _, 125 S. Ct. at 2732;

citing Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192,

66 L. Ed. 2d 199 (1980); School Dist. of Abington, Township

v. Schempp, 374 U.S. 203, 224 83 S. Ct. 1560, 10 L. Ed. 2d

844 (1963). In contrast to the Ten Commandments, our

national motto, as discussed above, has been repeatedly held

to convey a dominantly secular message which does not

violate the Establishment Clause. Even if the repeated

findings by this Court that our national motto is a

constitutionally acceptable form of ceremonial deism is

incorrect, and that it instead has some religious meaning,

this Court has held that “simply having religious content or

promoting a message consistent with a religious doctrine does

not rur. afoul of the Establishment Clause.” Van Orden v.

Perry, 575 U.S. __, __, 125 S. Ct. 2854, 2863 (2005), citing

Lynch v. Donnelly, 465 U.S. 668, 680, 104 S. Ct. 1355,

(1983); Marsh v. Chambers, 463 U.S. 783, 792, 103 S. Ct.

3330 (1983); McGowan v. Maryland, 366 U.S. 420, 437-

440, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Walz v. Tax

Comm'n of City of New York, 397 U.S. 664, 676-678,

90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970). While the

Establishment Clause forbids “sponsorship, financial

support, and active involvement of the sovereign in religious

activity”, Walz, 397 U.S. at 668, the Establishment Clause

was never intended to “entirely sweep away all government

recognition and acknowledgment of the role of religion in

the lives of our citizens for to do so would exhibit not

neutrality but hostility to religion.” County of Alleghany, 492

U.S. 573, 623 109 S. Ct. 3086 (O’Connor, J. concurring).

Petitioners argue that the opinion in McCreary altered

the first prong of the Lemon test to require only an “ostensible

and predominant purpose of advancing religion.” 545 U.S.

__, 125 S. Ct. at 2733. However, a review of the opinion in

McCreary reveals that the guidance set forth in Wallace v.

Jaffree, 472 U.S. 38, 56, 105 S. Ct. 2479, 2489 (1985),

“that a statute must be invalidated if it is entirely motivated

by a purpose to advance religion,” and in Lynch v. Donnelly,

465 U.S. 668, 680, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1983)

that the purpose inquiry looks to determine whether

government “action was motivated wholly by religious

considerations,” was not overruled. Indeed, this Court cited

Wallace and Lynch with approval in numerous places in its

McCreary opinion. In any event, it his difficult to fathom

how the display of our national motto, which conveys a

secular message, could have the “ostensible and predominant

purpose of advancing religion.”

“th regard to the petitioner’s second argument

reg, ng the application of the endorsement test to the

assessment of secular purpose, this Court noted in McCreary

that observers are “presumed to be familiar with the history

of the government’s actions and competent to learn what

history has to show.” 545 U.S. at __, 125 S. Ct. at 2737,

citing Santa Fe Independent School Dist. v. Doe, 530 U.S.

290, 308, 120 S. Ct. 2266. In this case, the observer is a

citizen who is presumed to know that “In God We Trust” is

our nétional motto, and knows that such words have been

displayed for decades on government buildings and on the

coins and paper money he or she carries in his or her pockets.

Petitioners rely completely on the McCreary decision

handed down by the Supreme Court, but fail to

mention whatsoever the Van Orden v. Perry, 575 U.S. _,

__, 125 S.Ct. 2854, 2863 (2005) opinion handed down the

very same day, which upheld the constitutionality of the

display of the Ten Commandments on the grounds of the

Texas State Capitol. In choosing not to apply the Lemon test

in Van Orden, the Court’s plurality opinion noted that “the

factors identified in Lemon serve as no more than helpful

signposts.” 575 U.S. at__, 125 S. Ct. at 2861, citing Hunt v.

McNair, 413 U.S. 734, 741, 93 S. Ct. 2868, 37 L. Ed. 2d 923

(1973). In any event, Justice Breyer’s opinion in Van Orden

notes that courts must look at the history, purpose and context

of a particular display in determining whether it is a symbolic

endorsement of religion. Van Orden v. Perry,575 U.S. at _,

125 S. Ct. at 2869 (2005) (“I see no test-related substitute

for the exercise of legal judgment”). Consideration of the

history, purpose and context of our national motto, in addition

to the decisions and opinions of this Court addressing our

national motto, demonstrate that it does not constitute a

symbolic endorsement of religion and does not violate the

Establishment Clause.

CONCLUSION

WHEREFORE, the Respondent respectfully requests

that the Court deny the Petition for a Writ of Certiorari.

Respectfully submitted,

James R. Morcan, Jr.

Womeate CARLYLE SANDRIDGE

& Rice, PLLC

Attorneys for Respondent

One West Fourth Street

Winston-Salem, NC 27101

(336) 721-3600

No. 05-203

In The

Supreme Court of the Gnited

CHARLES F. LAMBETH, JR.,

AND MICHAEL D. LEA,

~ Petitioners,

Vv.

THE BOARD OF COMMISSIONERS OF

DAVIDSON COUNTY, NORTH CAROLINA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

REPLY BRIEF FOR PETITIONERS

Of Counsel: GEORGE DALY

WILLIAM W. VAN ALSTYNE Counsel of Record

William and Mary GEORGE DALY, P.A.

School of Law 139 Altondale Avenue

P.O. Box 8795 Charlotte, North Carolina

Williamsburg, Virginia 28207

23185 (704) 333-5196

gdaly1@bellsouth.net

JOHN W. GRESHAM

FERGUSON, STEIN, CHAMBERS

GRESHAM & SUMTER

741 Kenilworth Avenue

Charlotte, North Carolina

28204

(704) 375-8461

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO (800) 226-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITTES ....0..........0:.cccccccceceeeesscceeeeves ii

REPLY BRIEF FOR PETITIONERS ...............00cscceeesees 1

1. This is not a case about the national motto as

PARED vevecenincectuensentepovisintintnsseviventinaipiinebesdineanenians 1

2. Analysis of Van Orden v. Perry, 545 U.S. __,

125 S. Ct. 2854 (2005) demonstrates conclu-

sively that the decision below is irreconcilable

with McCreary County v. ACLU of Kentucky,

545 U.S. __, 125 S.Ct. 2722 (2005), and

therefore should be remanded for reconsidera-

TABLE OF AUTHORITIES

Page

CASES:

Allegheny County v. ACLU, 492 U.S. 573, 109 S. Ct.

a cciarctaileinchciieiiincllitcnrunlaietiidpsaalidinettaniiaamiaiintaldasitatial 4

Edwards v. Aguillard, 482 U.S. 578 (1987)... 2

Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105

GPG Bd crcsnnditovatunicintansnnntemaiaptinstkiniibindiedatnnlpiviinittcmant 1,2

McCreary County, Kentucky v. American Civil

Liberties Union of Kentucky, 545 U.S. __, 125

Be, See ND discs cccteesiccnehecsiinsictienidiiinliinntiants 2, 3, 4,5

Van Orden v. Perry, 545 U.S. __, 125 S. Ct. 2854

SP cxndeitinccnentinandininntnstapeatuinitbiendbarctcipeistaiiiehomepadinists 2, 3,4

REPLY BRIEF FOR PETITIONERS

This is not a case about the national motto as such

The first and second arguments in the brief in opposi-

tion rehearse the dicta in this Court and the holdings in

the lower courts concerning the national motto as such

and its use on coin and currency. None of those cases

considered legislative motive or the development of the

presentation of the display. The case presented here is

different in kind from those cases. It involves the display

of “In God We Trust” unidentified as the national motto,

recently installed as the most prominent feature of the

main County building, and intended to and reasonably

perceived to state a religious message. This is, as the

Fourth Circuit recognized,

“governmental action which goes beyond tradi-

tional uses of the phrase, as discussed in the

[Supreme] Court’s dicta and by our precedents,

which have been limited to the phrase’s use on

coins and currency, and as the national motto.”

Pet. App. 10a. Accordingly the Fourth Circuit applied the.

Lemon’ and endorsement tests, rather than a ceremonial

deism or other analysis, to determine whether the Estab-

lishment Clause was infringed.

This is not just another national motto case, any more

so than if the Congress enacted tomorrow that “Equal

Justice Under Law” should be removed from the main

pediment of this Court and replaced with “In God We

Trust,” with the purpose stated in the legislative history as

* Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971)

being to bring this Nation back to a fundamental belief in

God as the source of our laws.

This case presents allegations that the unidentified

creed “In God We Trust” was displayed with a purpose to

send a religious message and in fact sent such a message

to an objective observer. This case is properly analyzed, on

a motion to dismiss for failure to state a claim, under the

rules formulated in McCreary County, Kentucky v. Ameri-

can Civil Liberties Union of Kentucky, 545 U.S. __, 125

S. Ct. 2722 (2005.)

Analysis of Van Orden v. Perry, 545 U.S. __, 125

S. Ct. 2854 (2005) demonstrates conclusively that

the decision below is irreconcilable with McCreary

County v. ACLU of Kentucky and therefore should

be remanded for reconsideration

McCreary County ruled that the first prong of Lemon

requires only an “ostensible and predominant purpose of

advancing religion,” 545 U.S. ___, 125 S. Ct. at 2733, not

an entirely religious purpose.” A “primary” or a “preemi-

nent” purpose to advance religion is sufficient to state a

claim. 545 U.S. __, 125 S. Ct. at 2735, quoting Edwards v.

Aguillard, 482 U.S. 578, 594 (1987). It further held that

the endorsement test, with its assessment of context and

history, applied to the assessment of secular purpose, 545

U.S. __, 125 S. Ct. at 2736-37. The Fourth Circuit failed

to heed either of these rules. If it had, it would have found

that Petitioners had stated a claim.

* Petitioners argued in the Fourth Circuit that “dominant” purpose

was the test. Pet. App. 6.

Respondent argues that Van Orden v. Perry, 545 U.S.

__., 125 S. Ct. 2854 (2005), requires that the governmen-

tal religious statement made here be upheld. Respondents

recognize, however, that Van Orden produced no majority

opinion, and that the separate concurrence of Justice

Breyer notes that courts “must look at the history, purpose

and context of a particular display in determining whether

it is a symbolic endorsement of religion.” Brief in Opposi-

tion, 16. Petitioners agree with this proposition, and a

fuller consideration of Justice Breyer’s opinion drives

home the point of how clearly McCreary County controls

the case presented here.

Van Orden ruled that the religious display at issue

there could remain in place, while McCreary County

upheld a preliminary injunction against the continued

maintenance of its display. The difference in result came

about because Justice Breyer joined the opinion of the

Court in McCreary, whereas in Van Orden he concurred in

the result but not in the plurality’s reasoning. He took

differing views of (1) a Ten Commandments monument on

State Capitol grounds, donated years ago by a private civic

organization and expressly said by the donor to be for the

purpose of combating juvenile delinquency, being one of 38

monuments and markers variously scattered elsewhere

about the Capitol grounds, of which no record of official

motivation survived and which had gone legally unchal-

lenged for some forty years, and (2) recently posted, large,

readily visible copies of the Commandments in court-

houses, surrounded by historical documents featuring

governmental] religious statements, as to which suit had

been brought shortly after their installation. Justice

Breyer weighed all these differences of fact in deciding

whether the constitutional line had been crossed. By his

own admission the critical difference was that the Capitol

display had been in place, unchallenged, for some forty

years. 125 S. Ct. at 2870 (“... a further factor is determi-

native here. ... 40 years passed ... ”). By also expressly

approving of Justice O'Conner’s csncurring epiaicn in

McCreary County, see Van Orden, 125 S. Ct. at 2872, and

by expressly joining the opinion of the Court in McCreary

County, he made plain that while in his view the display of

a long-unchallenged religious text as one among many

placements was constitutionally permissible, the very

same text was not permissible in a new, aggressive,

untraditional imposition — that his letting pass the Capitol

display was not a signal to those who would seize upon the

verisimilitude of newly proposed religious impositions in

the public sector to those essentially grandfathered by the

passage of time.

The case at bar falls clearly on the McCreary County

side of Justice Breyer’s line. The complaint alleges that

the predominant driving force of the recently imposed

display was to raise the vi sility of a religious motif,

signaling to all who entered the Governmental Center that

a singular religious credo governed within. The affront is

distinctly more substantial than was the merely seasonal

créche in Allegheny County v. ACLU, 492 U.S. 573, 109

S. Ct. 3086 (1989).

CONCLUSION

The Fourth Circuit plainly erred in imposing a re-

quirement that entirely religious purpose be pleaded, and

that history and context were not to be considered in

assessing purpose. The minimum required here is to

reverse the judgment below and remand for reconsidera-

tion in light of McCreary County.