AMERICAN CIVIL LIBERTIES UNION OF OHIO
United States District Court, S.D. Ohio.
September 1, 1998.
OPINION AND ORDER
The issue presented in this case is whether the official motto of the state of Ohio "With God All Things Are Possible" is an endorsement of religion forbidden by the Establishment Clause of the First Amendment of the United States Constitution. [FN1] The plaintiffs are the American Civil Liberties Union of Ohio, Inc., and Matthew Peterson, a Presbyterian minister. The defendants include the Capitol Square Review and Advisory Board ("Board"); Ronald T. Keller, Executive Director of the Board; Daniel Shellanbarger, Assistant Director of the Board; and Richard H. Finan, an Ohio State Senator, who is Chairperson of the Board. Also named as defendants are the Governor of the State of Ohio, George Voinovich; the Secretary of State, Bob Taft; and the Commissioner of the Ohio Department of Taxation, Roger W. Tracy.
Capitol Square is a ten-acre site in the center of Columbus, Ohio where the Ohio state capitol building, or "statehouse", is located. The Board is charged by law with the duty of regulating all uses of Capitol Square and is vested with the authority to approve all improvements and additions to the statehouse and the statehouse grounds. Ohio Rev.Code § 105.41.
The governor is vested by law with the authority to approve all uses of the official seal of the state of Ohio. See Ohio Rev.Code § 5.10. Plaintiffs allege that Governor Voinovich approved the use of the motto in conjunction with the seal pursuant to the authority vested in him and that he originated the idea of displaying the motto at the statehouse. Secretary of State Taft and Tax Commissioner Tracy allegedly display the motto on official stationery and forms used in their official functions.
On October 1, 1959, the General Assembly of the state of Ohio enacted legislation declaring that the phrase "With God, All Things Are Possible" shall be the state's official motto. [FN2] There is no official legislative history of the statute which adopted the motto, but contemporary documents and newspaper accounts indicate it was suggested by a twelve-year-old Cincinnati boy, James Mastronardo, who made several trips to Columbus to speak to the Ohio General Assembly on behalf of his proposal. Ohio's then secretary of state, Ted W. Brown, undoubtedly recognizing a chance for some excellent publicity, "legitimized" James's efforts to influence the legislators by registering him as a lobbyist and later by presenting him with a special citation after the statute had been passed and signed by the governor. A press release issued at that time by Secretary of State Brown indicates that in 1865, the General Assembly adopted the motto "Imperium in Imperio" but repealed it two years later on the ground that it "smacked too much of royalty." Affidavit of Ronald T. Keller In Support of Defendants' Memorandum of Law, Attachment One. Brown's press release also states that young James "chose a verse in the New Testament, Matthew 19:26, ... from which to draw the official motto." Id.
Shortly after the motto was officially adopted, Secretary of State Brown created a distinctive design by inscribing the motto on a ribbon-like device and combining it with the state seal, which he then used on his letterhead and other official documents. His successors have followed suit and certain other state officials, including the tax commissioner, have done likewise.
The state seal is a circular device which contains no religious symbols. In the foreground of the seal are a sheaf of wheat and a sheaf of arrows. In the background are mountains and a rising sun; between the background and foreground are a river and cultivated fields. See Ohio Rev.Code § 5.04. In May 1996, after returning from a trip to India where he saw the motto "Government Work Is God's Work" inscribed on a public building, Governor Voinovich recommended to the Board that the state motto be inscribed above the main entrance to the statehouse. In November, 1996, the Board adopted a modified version of the governor's recommendation and decided to engrave the state seal and motto on a granite plaza at the west entrance of the statehouse. The state seal and ribbon-like device bearing the motto, which the state proposes to install at the Capitol Square Plaza, will be made of bronze and embedded in a granite pavement at ground level. The combined display will be ten feet, nine inches by twelve feet, four inches. The letters of the motto will be six to eight inches in height.
Plaintiffs seek a declaratory judgment declaring the motto unconstitutional, and they request a permanent injunction enjoining the defendants from displaying the motto on the Capitol Square Plaza and from using it in any official way in the future.
Citing County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 608-609, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) ("we have expressly required 'strict scrutiny' of practices suggesting 'a denominational preference' ") plaintiffs assert that Ohio's motto endorses the Christian religion over other religions and must be invalidated unless it is justified by a compelling government interest. See Larson v. Valente, 456 U.S. 228, 246, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). Plaintiffs assert that the motto is sectarian because it is taken from the Christian New Testament, specifically, from a saying attributed to Jesus. The Court finds this argument unpersuasive.
While the words of the motto appear to have been taken from the Christian New Testament, specifically Matthew 19:26, they are only part of a sentence in that passage and they have been completely removed from the context in which they were used. [FN3]
Removed from their Christian New Testament context, the words of the motto do not suggest a denominational preference. They do not state a principle unique to Christianity. They could be classified as generically theistic. They are certainly compatible with all three of the world's major monotheistic religions: Judaism, Christianity, and Islam. Statements similar to the words of the motto are found in the Hebrew Bible [FN4] as well as the Qur'an, [FN5] the sacred book of the Muslims.
The Golden Rule, "Do Unto Others As You Would Have Them Do Unto You," is also a saying attributed to Jesus in the Christian New Testament. [FN6] Many aphorisms which are part of our common vocabulary have their origin in the Hebrew Bible or the Christian New Testament. The national motto, "In God we trust," 36 U.S.C. § 186, appears to have been inspired by a passage in the Hebrew Bible. [FN7] None of these expressions are regarded as sectarian, nor should the motto here under consideration.
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 eighteen years, did not recognize the source of the motto when he first became familiar with it. He was only able to say that it "sounded vaguely familiar." Defendants' witness, Dr. David Belcastro, an associate professor of religious studies at Capital University in Columbus, Ohio, opined that the average college student would not know the source of the motto. The Court concludes that an objective and reasonably informed observer would not perceive the motto as sectarian.
In some of its usages of the motto, the state has included a citation to the New Testament text, "Matt. 19:26." However, the statute which established the motto does not contain this reference, nor does the state intend to include it with the words to be inscribed on the Capitol Square Plaza.
This case is unlike County of Allegheny, in which the sectarian nature of the phrase "Glory to God in the Highest" [FN8] was manifested by its context, namely the display of a creche depicting the birth of Jesus. See 492 U.S. at 580. In the instant case, the words of the motto will be displayed in the secular context of the state seal, a completely secular device.
Plaintiffs further argue that even if the motto is not sectarian, it nevertheless constitutes a governmental preference of religion over nonreligion which violates the Establishment Clause. The Supreme Court has said in other contexts that the Establishment Clause does not permit official preference of religion over nonreligion. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 8, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989); Wallace v. Jaffree, 472 U.S. 38, 41 n. 37, 53, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). [FN9] The Court has also held, however, that certain forms of official acknowledgment of religion which are regarded as part of the "fabric of our society" are permitted by the Constitution. Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). This case is governed by that rule.
In Marsh, the Court upheld the practice of the Nebraska legislature to begin each of its sessions with a prayer offered by a chaplain chosen by the executive board of the legislative council and paid out of public funds. The Court noted that:
463 U.S. at 786. The Court further noted that one of the first actions of the original Congress, the same Congress which drafted the Establishment Clause, was the selection of chaplains for both houses who were paid out of the public treasury; that this practice has continued uninterrupted to the present time and has been followed consistently in most of the states. See Marsh, 463 U.S. at 787-790. Chief Justice Burger, speaking for the Court, said:
Marsh, 463 U.S. at 790. The Chief Justice went on to state:
Marsh, 463 U.S. at 790.
Like the practice of opening legislative sessions with prayers, official mottoes, oaths, and inscriptions which acknowledge the religious heritage of our nation are also deeply embedded in the history and tradition of this country. Thus, the Court in School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203, 213, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), referring to that tradition, said:
Every justice or judge of the United States is required by law to take an oath to faithfully and impartially discharge the duties of the office "So help me God." 28 U.S.C. § 453.
Justice Stewart noted in Engel v. Vitale, 370 U.S. 421, 446, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962):
In Lynch v. Donnelly, 465 U.S. 668, 674-675, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), Chief Justice Burger, writing for the Court, said:
The Chief Justice noted, "The day after the First Amendment was proposed, Congress urged President Washington to proclaim 'a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God.' " Lynch, 465 U.S. at 675 n. 2 (Citation omitted). Almost all presidents since Washington have issued thanksgiving proclamations specifically invoking the deity. Id.
In Lynch and in other cases, the Court has made specific reference to the national motto, "In God We Trust" and the language "One Nation Under God," which is part of the Pledge of Allegiance to the American flag. See County of Allegheny, 492 U.S. at 602-603, 625; Lynch, 465 U.S. at 693; School Dist. of Abington Tp., 374 U.S. at 303; Engel, 370 U.S. at 440 n. 5 (Douglas, J. concurring). Title 31, U.S.C. §§ 324 and 324(a) require the imprinting of the national motto "In God We Trust" on the coin and currency of the United States.
In County of Allegheny, 492 U.S. at 602-603, Justice Blackmun, writing for the Court, acknowledged:
The Court has never suggested that the national motto or the Pledge of Allegiance are unconstitutional. The national motto has been upheld by three circuit courts. See Gaylor v. United States, 74 F.3d 214 (10th Cir.1996); O'Hair v. Murray, 588 F.2d 1144 (5th Cir.1979) (per curiam ) cert. denied, 442 U.S. at 930 (1979); Aronow v. United States, 432 F.2d 242 (9th Cir.1970).
The national motto "In God we trust" is prominently engraved on the wall above the speaker's dias in the chamber of the House of Representatives. See County of Allegheny, 492 U.S. at 673. It is also engraved over the entrance to the Senate chambers. See Engel, 370 U.S. at 440 n. 5.
Congress has set aside a special prayer room in the Capitol for use by members of the House and Senate. This room is decorated with a large stained glass panel that depicts President Washington kneeling in prayer. Around him is etched the first verse of the Sixteenth Psalm: "Preserve me, O God, for in Thee do I put my trust ." See County of Allegheny, 492 U.S. at 672.
Congress has directed the president to proclaim a National Day of Prayer each year "on which [day] the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals." 36 U.S.C. § 169h. Our presidents have repeatedly issued such proclamations. See Lynch, 465 U.S. at 677.
The National Anthem, adopted by an official act of Congress, concludes with the following verse:
Plaintiffs argue that this case should not be governed by the rule in Marsh because, in their view, its holding is limited to practices which "themselves were sanctioned by their history and ubiquity." Memorandum In Reply, p. 21 (emphasis in the original). Thus, plaintiffs argue that Marsh must be limited to only those specific practices which began at or before the foundation of the republic and not similar or equivalent practices of later origin. The rule of Marsh is not so limited. Nebraska, of course, was not one of the original thirteen states. It was not admitted to the union until 1867, yet the Court upheld its practice of opening legislative sessions with prayer. Furthermore, the Nebraska practice did not precisely coincide with the practice of the original Congress. For example, in Nebraska, one Presbyterian minister served for over 16 years. In contrast, the original Congress provided for the appointment of two chaplains of different denominations who would alternate between the two chambers on a weekly basis. Marsh, 463 U.S. at 793 n. 13.
Ohio's motto was adopted nearly forty years ago. At least five other states have mottoes which have some religious content. [FN10] The national motto "In God we trust" was not officially adopted until 1956, just three years before Ohio adopted its motto. [FN11] The phrase "Under God" was not added to the Pledge of Allegiance until 1954. H.R.J.Res. 243, 83d Cong., 68 Stat. 249 (1954). The National Anthem was adopted by an act of Congress in 1931. See 36 U.S.C. § 170.
The Court in Marsh, 463 U.S. at 790-791, did not limit its ruling to only those practices which could trace their origins to the founding of the republic; instead, the Court said, "[I]t would be incongruous to interpret that Clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government."
This Court concludes that, like Marsh, this case is an exception to the rule of Lemon v. Kurtzman, 403 U.S. 602 (1971). The Court said in Lynch, 465 U.S. at 679, that Lemon was not the exclusive test or criterion in Establishment Clause cases. In Hunt v. McNair, 413 U.S. 734, 741, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973), the Court said that the three prongs of the Lemon test "are no more than helpful signposts, ..." But even if Lemon were applicable here, the result would not change. The motto has a valid secular purpose. "It inculcates hope, makes Ohio unique, solemnizes occasions, and acknowledges the humility that government leaders frequently feel in grappling with difficult public policy issues." Memorandum Contra Plaintiffs' Motion for Preliminary Injunction, p. 21. Viewed in the context of a long tradition of government acknowledgment of religion in mottoes, oaths, and anthems, the Ohio motto does not have the primary or principal purpose of advancing religion, and it does not foster excessive government entanglement with religion. See Gaylor v. United States, 74 F.3d 214 (10th Cir.1996).
Fourteen years ago in Lynch, 465 U.S. at 667-668, Justice O'Connor proposed a new two-pronged test for Establishment Clause cases: "entanglement" and "endorsement". Her endorsement test has received support from other members of the Court and it appears that a majority of the Court applied it in County of Allegheny. Under Justice O'Connor's endorsement test, the Establishment Clause is violated when an objective and informed observer would conclude that the government action in question "sends a message to nonadherents that they are outsiders, not full members of the political community, ..." See Wallace, 472 U.S. at 76; Lynch, 465 U.S. at 688. [FN12]
Ohio's motto passes Justice O'Connor's endorsement test. In Lynch, 465 U.S. at 693, Justice O'Connor said that governmental "acknowledgments" of religion, such as legislative prayers, government declaration of Thanksgiving as a public holiday, printing "In God We Trust" on coins, and opening court sessions with "God save the United States and this honorable court" serve
See also County of Allegheny, 492 U.S. at 595.
If the various actions of the federal government reviewed above do not offend the Establishment Clause, there can be little doubt that Ohio's motto "With God All Things Are Possible" does not. It is entirely proper for the state to inscribe the motto with the state seal on a granite pavement at the entrance to its state capitol building and to use it in like manner on official documents.
The Justices of the Supreme Court disagree among themselves on the proper role of religion in public life and the extent of the Court's authority to decide these issues under the Establishment Clause. This debate is not merely an academic exercise. Indeed, the fundamental question is just what values may properly inform and mould the public policy of the nation. Will they be exclusively secular or will they include the values embodied in the nation's religious heritage? Some argue that government's position must be one of strict neutrality. Others argue that in the realm of values, there is no such thing as neutrality. Indeed, it seems indisputable that the laws of every society reflect certain moral presuppositions. The law prohibits, allows, or promotes certain behaviors based upon what that society deems right or wrong. In America today, both sides of the debate on such divisive public issues as abortion, euthanasia, homosexuality, and pornography are taking a distinct moral stance. Thus, the issue of the role of religion in public life is an important one which deserves the public's attention.
History has played a significant role in the Court's interpretation of the Establishment Clause. The average citizen, as well as the constitutional scholar, understands that the history surrounding the writing of the Constitution sheds light on what it meant to the men who wrote it, and to the people of the United States who ratified it through their duly elected representatives. Those who oppose government acknowledgment of religion invariably invoke the now famous words of Thomas Jefferson who said that the Establishment Clause was intended to erect "a wall of separation" between church and state. [FN13] Many Americans assume that Jefferson played an instrumental role in the adoption of the First Amendment and that his metaphor is an authoritative comment on its meaning. This belief, which has reached the status of a civic myth, has contributed to public confusion about the history and meaning of the First Amendment. In fact, Jefferson had no role in the drafting of the Constitution or the Bill of Rights. Indeed, he was not even in the country; he was in France, where he served as United States minister to the French government from 1785 to 1789. Jefferson's comment about a wall of separation was contained in a letter he wrote more than a decade after the Bill of Rights was ratified by the states. [FN14]
Jefferson, who was the third president of the United States, was an advocate of the anti-religious philosophy of the European Enlightenment. [FN15] His position on the role of religion in public life stands in stark contrast to that of the nation's first president. [FN16] George Washington was not only the first Chief Executive but he was also the President of the Constitutional Convention and presided over that body's deliberations as it drafted the Constitution. He was the most highly respected public figure of the day. In his first inaugural address, Washington deliberately made prayer a part of his first official act as President:
Lee v. Weisman, 505 U.S. 577, 633, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992).
The most compelling evidence of the meaning of the Establishment Clause is to be found in the actions of the Congress which drafted it and submitted it to the states for their approval. The first Congress is "a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instrument." Myers v. United States, 272 U.S. 52, 174-175, 47 S.Ct. 21, 71 L.Ed. 160 (1926). See also Lynch, 465 U.S. at 674. On the same day it approved the language of the First Amendment, the first Congress urged the president to declare "a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many signal favours of Almighty God." See Lynch, 465 U.S. at 675 n. 2. On the very same day it approved the language of the Establishment Clause, the first Congress reenacted the Northwest Ordinance. Article 3 thereof states:
Northwest Territory Ordinance, Art. III, 1 Stat 51n, 52n (1787). Congress made adherence to the Northwest Ordinance a condition of statehood.
The actions of the first Congress were a clear signal to the states that the members of that first Congress believed it was proper under the Establishment Clause for the federal government to acknowledge religion in various ways. The states ratified the First Amendment after the first Congress took these actions, and no records exist indicating that the states voiced any disagreement with Congress's interpretation of the Establishment Clause as evidenced by its actions. Thus, it is fair to assume that the Bill of Rights was ratified with the understanding that those actions were proper under the First Amendment.
That this nation was founded on transcendent values which flow from a belief in a Supreme Being seems beyond dispute. The Declaration of Independence, which specifically invokes the deity on four occasions states:
Washington, in his farewell address said:
John Adams, the nation's second president, said:
In Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952), the Supreme Court said, "We are a religious people whose institutions presuppose a Supreme Being."
In School Dist. of Abington Tp., 374 U.S. at 213, the Supreme Court said:
Thirty-five years ago, Justice Goldberg warned that "untutored devotion to the concept of neutrality" can lead to "a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious," a result "not only not compelled by the Constitution, but ... prohibited by it." [FN19] School Dist. of Abington Tp., 374 U.S. at 306. I believe that striking down Ohio's motto "With God all things are possible" would evince the kind of brooding devotion to the secular which Justice Goldberg warned against.
Plaintiff's motion for declaratory and permanent injunctive relief is granted in part and denied in part. Plaintiff's request for declaratory and injunctive relief declaring the motto "With God all things are possible" unconstitutional and permanently enjoining its use as the official motto of the state of Ohio and specifically enjoining the state from installing the motto at the Capitol Square Plaza are hereby denied. The state of Ohio is permanently enjoined from attributing the words of the motto to the text of the Christian New Testament.
The Clerk shall enter final judgment in accordance herewith.
It is so ORDERED.
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