IN THE UNITED STATES DISTRICT COURT
AMERICAN CIVIL LIBERTIES UNION OF OHIO
CAPITOL SQUARE REVIEW and ADVISORY BOARD
Case No. C2-97-863
Magistrate Judge King
BRIEF AMICUS CURIAE
IN SUPPORT OF DEFENDANTS
TABLE OF CONTENTS
Table of Authorities
TABLE OF AUTHORITIES
Abington v. Schempp, 374 U.S. 203 (1963)
Messages and Papers of the Presidents (J. Richardson, ed. 1897)
C. Millard, Gods Signature Over the Nations Capital (1988)
R. Patterson and R. Dougall, The Eagle and the Shield: A History of the Great Seal of the United States (1976)
The Writings of James Madison (Gaillard Hunt, ed. 1910)
Statutes and Government Documents
The Declaration of Independence (U.S. 1776)
U.S., Congress, House, Flag - Pledge of Allegiance, House Rept. 1693 to Accompany H.J.
Res. 243, 83rd Cong., 2nd Session, 1954 in Vol. 2, 1954 United States Code Congressional
and Administrative News
Public Law 84-851, July 30, 1956
101 Congressional Record 7796, 9449 (1955)
INTEREST OF AMICUS CURIAE
The National Legal Foundation represents the following organizations as Amicus Curiae in this case:
Counsel of record for Amicus Curiae, David R. Huggins, is a staff attorney for the National Legal Foundation. Counsel for Amicus Curiae specializes in constitutional litigation and has participated in other cases relating to First Amendment and other constitutional freedoms.
Each of the organizations listed above is a non-profit, public interest organization, with a strong interest in matters of public policy, especially as they pertain to the preservation of our nations religious heritage, and to the freedom of religious expression guaranteed by our Constitution, and each of them seeks to work toward a proper rendering of the First Amendment, as understood by the Framers of the Constitution.
Of even greater importance in this case, however, is that each of these organizations represents citizens of Ohio. Each of them is comprised largely, if not exclusively, by citizens of this state and, thus, their members have a direct interest in this issue, and will be directly affected by this Courts decision.
SUMMARY OF ARGUMENT
Courts have often looked to history to review the actions of the Framers of the First Amendment and to thereby determine how to apply the Amendment in keeping with the Framers intent and understanding. Our history shows that the Framers saw no conflict between the prohibitions of the Establishment Clause and practices such as conducting opening prayers in Congress, acknowledging God in Presidential speeches, and issuing proclamations for days of Thanksgiving in recognition of Gods blessings upon our nation. In addition, our government acknowledges our religious heritage through our Pledge of Allegiance, with inscriptions on our government buildings, and by proclamations from the executive branch. These "practices" have endured to the point that they are now "traditions" in this country which continue to this day. Moreover, those which have been challenged over the years have been upheld as constitutional.
The example most relevant to this case, however, is that our government has imprinted a patently religious message on our coins with the words "In God We Trust". Despite the religious content, this motto has survived two legal challenges. 
Ohios public display of its state motto is therefore permissible, as it is no different than the aforementioned practices, and because it is particularly similar to the use of the national motto on our currency. Ohios motto does not coerce any citizen to subscribe to the sentiment expressed. It is merely a benign acknowledgment of religious beliefs widely held throughout our history, and is an expression appropriate to a "religious people whose institutions presuppose the existence of a Supreme Being". Zorach v. Clauson, 343 U.S. 306 (1952). The framers of the First Amendment would not only have approved of displaying the motto, they would have been appalled at the relentless efforts being carried on in their names, to purge this country of every vestige of religion in the public sphere, and at the historical revisionism used in support of that effort.
The importance of deciding this case in light of history cannot be overstated. As Justice Holmes said, "a page of history is worth a volume of logic."  In making its decision, this Court should focus on the historical context which gave rise to our long tradition of publicly expressing religious sentiments, and not only on the religious content of Ohios motto. Our nations history is replete with instances where government has publicly expressed religious sentiments, often -- and most notably -- with the participation and approval of those who drafted the First Amendment. An inquiry conducted in the light of history will lead inevitably to the conclusion that the display of Ohios motto is consistent with the Framers understanding of the First Amendment, and that it has neither the purpose nor the effect of promoting religion.
Because this case is rooted in history, it is properly analyzed, not under the test in Lemon v. Kurtzman, 403 U.S. 602 (1971), but rather under the reasoning of the Supreme Court in Marsh v. Chambers, 463 U.S. 783 (1983), where the Court upheld the practice of a state legislature having a paid chaplain open its daily sessions with prayer. The Marsh Court reasoned that due to the acceptability and prevalence of such practices at the time the First Amendment was drafted, the framers of that Amendment must have seen no conflict between the two.
That Court was therefore persuaded that the test in Lemon, whatever its purported virtues, was not appropriate for use in all cases. In fact, the Supreme Court has "repeatedly emphasized [its] unwillingness to be confined to any single test or criterion" in First Amendment cases. A departure from Lemon is sometimes necessary, and this is one such case. Indeed, we must avoid using "formulaic abstractions", such as the test in Lemon, that "conflict with our long accepted constitutional traditions." Lee v. Weisman, 505 U.S. at 644 (Scalia, J., dissenting).
This Court must not reject, on constitutional grounds, historical practices that were wholly acceptable to the framers of the First Amendment. Otherwise, we run the risk of reading into the Constitution a meaning that was never intended and, thereby, creating a society bereft of all public religious expression something our founders never even imagined, much less, intended. In short, this Court must reject the claim implicit in Plaintiffs argument here -- that Plaintiffs better understand the First Amendment than did the very people who drafted it.
Even if strict government "neutrality" is our goal, it must be pursued carefully, and not carried so far, or enforced so zealously, as to become a mere guise for hostility toward religion. Abington v. Schempp, 374 U.S. 203, 306 (1963) (the Court stating 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.") (Goldberg, J. and Harlan, J., concurring).
A decision for Plaintiffs would thus be in direct conflict with the intentions of the framers of the First Amendment, and with practices and traditions of this nation which have endured for generations, and which continue to this present day. This Brief therefore urges this Court to find in favor of Defendants.
In evaluating any case under the First Amendment, courts have always sought to apply the two clauses thereof so as not to "undermine the ultimate constitutional objective as illuminated by history." Walz v. Tax Commission, 397 U.S. 664, 671 (1970). The Supreme Court has noted with respect to Constitutional interpretation that, "[a]ny deviation from their [the Framers] intentions frustrates the permanence of that Charter and will only lead to . . . unprincipled decisionmaking . . . ." Wallace v. Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist, J., dissenting). 
Recurrence to these fundamental principles of interpretation is particularly important in the present case. Reflection upon the historical events surrounding the adoption of the First Amendment shows that acknowledgment and observance of Americas religious heritage by government is not the type of activity which the Framers intended the Establishment Clause to forbid. In fact, the kind of government activity at issue in this case was known at the time the First Amendment was drafted, and was approved of by many who took part in that endeavor.
It is for this reason that this case should be analyzed and considered under the reasoning in Marsh v. Chambers, 463 U.S. 783 (1983), rather than the test in Lemon v. Kurtzman, 403 U.S. 602 (1971). There are cases in which the test from Lemon is not appropriate, and this is one such case.
At the time the First Amendment was drafted, officials of our new government took part in, or were witness to, numerous instances of government acknowledging God in explicitly religious terms. These acknowledgments were made by various branches of our government, and apparently did not engender litigation over their compatibility with the Establishment Clause.
In the case of Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court cited much of this history in support of its finding that legislative prayer was a constitutional practice, and found this history relevant to its analysis. That Court noted, for instance, that just three days after the First Congress authorized appointment of paid chaplains to open sessions of Congress with prayer, the same Congress reached final agreement on the language of the First Amendment. Id. at 788. The Framers clearly saw no conflict between the proscriptions of the Establishment Clause and the daily observance of prayer at the very seat of government.
This was true, however, for the executive as well as the legislative branch. George Washington, in his first inaugural address, also acknowledged Americas religious heritage:
George Washington, First Inaugural Address, in 1 Messages and Papers of the Presidents, at 44 (J. Richardson, ed. 1897).
Moreover, it was the first Congress that urged President Washington,
Id. at 56.
As the Supreme Court has noted, this Thanksgiving resolution was passed by the Congress on the same day that final agreement was reached on the language of the Bill of Rights including, of course, the First Amendment. Marsh, 463 U.S. at 788, n. 9; Lynch v. Donnelly, 465 U.S. at 675, n. 2. President Washington did, in fact, set aside November 26, 1789 as a day on which the American people could "unite in most humbly offering [their] prayers and supplications to the great Lord and Ruler of Nations . . . and [to] beseech Him to pardon [their] national and other transgressions . . . ." 1 Messages and Papers, at 56.
Many more examples could be cited but, suffice it to say, the Framers of the First Amendment both engaged and acquiesced in practices similar to the one proposed in this case, and appear to have found no constitutional defect in them. It would seem a safe assumption that the framers of the First Amendment would not have stood by silently, had they observed frequent violations of their own work for which they had risked so much. Moreover, as those who best knew the intentions behind that Amendment, it is their understanding, as revealed by their actions, that should guide us today in deciding such cases.
The historical acceptability and longevity of a practice lends to it a certain presumption of constitutionality. County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 670 (1989) (Kennedy, J., concurring in the judgment in part and dissenting in part) ("[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause"; and "the meaning of the Clause is to be determined by reference to historical practices and understandings.") (Emphasis added).
On that basis, the Supreme Court has noted on two occasions that the Congress that drafted the First Amendment "was 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, 174-5 (1926), cited in Lynch v. Donnelly, 465 U.S. 668, 674 (1984).
The Supreme Court in Marsh took the history it considered in that case to be of the utmost relevance in deciding an issue much like the one presently before this Court. Thus, that Court stated that "historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress their actions reveal their intent." Id. at 790. (Emphasis added).
The conduct of the Framers therefore makes it abundantly clear that they also never intended the Establishment Clause to forbid the government from publicly acknowledging our nations religious heritage. Plaintiffs, however, still ask this Court to acquiesce in the notion that, while the very authors of the First Amendment publicly invoked Gods blessings, called for days of national thanksgiving, and urged the nation to seek Gods "pardon" for its "transgressions", Ohio would somehow violate that same First Amendment by placing its motto on public display.
Evidently Plaintiffs regard the Framers views as either quaint or irrelevant, or both, and would have this Court ignore their intentions (as revealed by their actions, Marsh) altogether. However, any interpretation of the Establishment Clause that "sweeps away the practices of the Framers themselves . . . is implausible as well as inappropriate. We should not treat them [the Framers] as hypocrites about their own handiwork." American Jewish Congress v. City of Chicago, 827 F.2d 120, 140 (7th Cir. 1987) (Easterbrook, J., dissenting).
The public display of Ohios state motto is perfectly consistent with our centuries old tradition of government publicly acknowledging Gods sovereignty in our nations affairs. For reasons noted above, consistency with historic practice is highly relevant to this case, and a factor to which the Court should give considerable weight. Examples too numerous to mention could be cited, but the following brief list illustrates the wealth and extent of this tradition:
This nation thus enjoys a long tradition of public officials acknowledging God and his sovereignty in our nations affairs,  and the tradition continues to this day. All of the statements quoted above bear strong resemblance, both in word and in spirit, to the Ohio state motto. Therefore, any "test" this Court might use to find this proposed action unconstitutional would be improper. As noted above, the historical acceptability and longevity of a practice should mean that we, today, begin our analysis with the presumption that these practices, or those sufficiently similar, are indeed constitutional. County of Allegheny, 492 U.S. at 670.
Plaintiffs claim -- that the display of Ohios state motto is unconstitutional -- must fail, since our federal government displays a similar motto, "In God We Trust", on our nations currency, and this practice has withstood two legal challenges. Their claim must fail, as well, because our nation has a long tradition of displaying religious sentiments on our government buildings, and the longevity of this practice should insulate it from attack on the grounds that it somehow violates the First Amendment.
President Eisenhower ordered that the national motto, "In God We Trust" be placed on our currency in 1956.  However, his order only codified a ninety-year tradition of these words appearing on various coins. The motto was actually first approved to appear on coins by Salmon P. Chase, the Secretary of the Treasury, on December 9, 1863.  The motto then made its first appearance on a two-cent bronze coin in 1864. The use of the motto increased thereafter. As the modern era began, the motto was inscribed on a number of new coins for their debut, including the Lincoln Penny (1909), the Mercury Dime (1916), the Jefferson Nickel (1938), the Standing Liberty Quarter (1916), the Washington Quarter (1932), and the Roosevelt Dime (1946).
In this same tradition, in 1954 the words "Under God" were added by Congress to the nations Pledge of Allegiance. This occurred just two years before President Eisenhower issued his executive order for the motto "In God We Trust" to appear on our currency. The House Committee on the Judiciary supported passage of the bill for the addition to the Pledge of Allegiance by stating, in pertinent part, that "[t]he inclusion of God in our Pledge therefore would further acknowledge the dependence of our people and our Government upon the moral directions of the Creator."  Congress then expanded the use of the motto "In God We Trust" in 1955, calling for it to appear on all coins and on all paper money as well. 
As previously noted, the use of the national motto on our currency has been held constitutional, despite two separate legal challenges. In the case of Aronow v. United States, 432 F.2d 242, 243 (9th Cir. 1970), the court stated emphatically: "It is quite obvious that the national motto and the slogan on coinage and currency In God We Trust has nothing whatsoever to do with the establishment clause." That court further held that the use of the motto in this way bore "no true resemblance to a governmental sponsorship of a religious exercise." Id. In OHair v. Blumenthal, 462 F. Supp. 19, 20 (W.D. Tex. 1978), the court, relying on Aronow, held that the use of the national motto on coins and currency was consistent with the First Amendment. That court looked, not only to Aronow, but also to Justice Brennans comments in Abington v. Schempp, 374 U.S. 203 (1963), in which "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." OHair, 462 F. Supp. at 20.
In Abington, Justice Brennan stated, in his concurrence, as follows: "it is not that the use of these four words [the national motto] 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 present that type of involvement which the First Amendment prohibits." Id. at 303.
This nation also has a long tradition of inscribing religious sentiments and scriptural references on government buildings, a practice nearly identical to what is proposed by the state of Ohio in this case. Here again, examples abound, but the following list illustrates the point: 
Apparently, neither our founders, nor those who designed our nations most prominent buildings, shared Plaintiffs view that a citizens "beneficial use" of government buildings would be "impaired by confrontation with [ ] religious motto[s]." (Plaintiffs Complaint, p. 4). Moreover, how is it, exactly, that our government may express the religious belief that the "Unknown Soldier" is "known but to God", yet the State of Ohio is said to be forbidden by our Constitution to display its motto, because it expresses a religious belief ? Reason and credulity are thus stretched to the breaking point, when -- despite the examples listed here -- Plaintiffs claim either that (1) the display of the Ohio motto is somehow different -- in a legally relevant way -- than what is described above; (2) that it is unconstitutional anyway; or (3) that the Framers cared so little for the import of their own work, that they either violated its spirit themselves, or willingly countenanced the same by others.
The examples given here show that Plaintiffs are either ignoring or discounting the rich vein of history that undergirds this case. As noted above, however, the Supreme Court has implied that longevity is a valuable asset in these cases. This would seem particularly true when a historical practice undertakes the daunting task of surviving under the "strict separationist" point of view.
Plaintiffs imply, though, that an important distinction between the Ohio motto and the words "In God We Trust" on our currency or the examples shown above, is that the Ohio motto is more than mere religious sentiment, but the actual words of "Jesus Christ" (see Plaintiffs Complaint, p. 2), thus removing any purported "presumption" in its favor, its longevity notwithstanding. Such an argument fails, however, when viewed in the light of simple logic and/or "historical practices and understandings." County of Allegheny, 492 U.S. at 670.
In fact, were such a distinction to be carried to its logical conclusion, it would yield absurd results. What if the Ohio motto simply quoted or paraphrased the "golden rule"?  Were a state to choose this for its motto, should that be cause for litigation? The argument must also fail, however, because indisputably, our government, through various leaders, has often uttered the very words of Biblical figures throughout our history. As noted above, President Lincoln frequently did so without hesitation.
Plaintiffs also find constitutional infirmity in the fact that the display of the Ohio motto in public will be an offense to certain citizens who do not share the sentiments expressed therein; Plaintiffs fear that "direct contact" by such citizens with the motto "will directly injure them", as the motto will constitute "a serious insult to their religious sensibilities." (Plaintiffs Complaint, p. 4). But, this is anything but an insurmountable obstacle to the mottos display. Lee v. Weisman, 505 U.S. at 597 (the majority stating: "we do not hold that every state action implicating religion is invalid if one or a few people find it offensive.").
Plaintiffs also take exception to the government expending public funds for such displays. (Plaintiffs Complaint, p. 5). However, the list offered above of religious inscriptions on government buildings brings such an argument into serious question. Indeed, the "question" becomes whether that can, therefore, truly be considered a "serious" argument.
Thus, Plaintiffs find themselves in the unenviable position of arguing against history.  Though some would expunge our history of all things religious,  they cannot escape the fact that our nations past is replete with public proclamations of our belief in God and His sovereignty. This type of public expression is a longstanding, uninterrupted tradition that has enriched our nation, and one which should not fall under Plaintiffs unforgiving view of the Establishment clause. 
To display the Ohio motto would not be materially different from things done long ago by people who well understood the First Amendments true meaning. Nor would the display be any different at all from the displays of religious sentiment catalogued, in part, above. The display of the motto is simply "a tolerable acknowledgment of beliefs widely held among the people of this country." Marsh, 463 U.S. at 792. As such, it should be permitted, if not encouraged, by every part of government, including the courts.
Throughout our nations history our government has openly declared its faith in, and reliance upon, God and His favor. Moreover, many of our public buildings bear words of religious import, and our very currency displays our national motto, "In God We Trust".
This history is a source of pride to some, and of embarrassment to others, but it is our history, nonetheless. This Court must therefore decide this case in the light of that history. The display of Ohios motto will no more endanger the Establishment Clause than does the Biblical inscription on the Liberty Bell, or the national motto on our coins.
Thus, this Court should view with some scepticism, the notion that the First Amendment will not allow today what was permitted long ago by its very authors. Moreover, the burden of proving such a claim should be placed firmly and irrevocably upon those who, by their "untutored devotion to neutrality", would make it their business to deny the citizens of Ohio this simple acknowledgment of their history and tradition.
Respectfully submitted this day of December, 1997.
THE NATIONAL LEGAL FOUNDATION
(1) Aronow v. United States, 432 F.2d 242 (9th Cir. 1970) and OHair v. Blumenthal, 462 F. Supp. 19 (W.D. Tex. 1978).
(2) This aphorism of Justice Holmes is quoted by Justice Scalia in his dissent in Lee v. Weisman, 505 U.S. 577, 632 (1992). Justice Scalia stated that this should apply with "particular force to our Establishment Clause jurisprudence."
(3) James Madison, arguably the chief architect of the First Amendment, stated that the proper approach to the Constitution was to "resort[ ] to the sense in which the Constitution was accepted and ratified by the nation." Letter from James Madison to Henry Lee (June 25, 1824), in IX The Writings of James Madison, at 191(Gaillard Hunt, ed. 1910). Abraham Lincoln held the same view, stating in his first inaugural address that "the intention of the lawgiver is the law."
(4) Second Inaugural Address in Vol. I Messages and Papers of the President, at 382 (J. Richardson, ed. 1897).
(5) Abraham Lincoln, A Presidential Proclamation in Vol. VIII Messages and Papers of the Presidents, at 3238 (J. Richardson, ed. 1897).
(6) Id. at 3237.
(7) These practices, and others like them, are often characterized, and sometimes permitted by courts only because they are viewed as, "civil religion." Counsel for Amicus Curiae does not endorse the notion of "civil religion" and, therefore, will not raise it here, but would urge this Court to give such an argument, if raised by other counsel, due consideration.
(8) Public Law 84-851, July 30, 1956.
(9) Salmon P. Chase to James Pollock, in R. Patterson and R. Dougall, The Eagle and the Shield: A History of the Great Seal of the United States, at 515 (Washington, D.C.: Department of State 1976).
(10) U.S., Congress, House, Flag - Pledge of Allegiance, House Rept. 1693 to Accompany H.J. Res. 243, 83rd Cong., 2nd Session, 1954 in Vol. 2, 1954 United States Code Congressional and Administrative News, at 2340.
(11) 101 Congressional Record 7796, 9449 (1955).
(12) Aronow v. United States, 432 F.2d 242 (1970); OHair v. Blumenthal, 462 F. Supp. 19 (W.D. Tex. 1978). The OHair court also concluded that the Aronow court found the use of the national motto on currency to be constitutional under "the Lemon test", in that (1) the display of the motto had a secular purpose; (2) that its primary effect was not the advancement of religion; and (3) that "it would be ludicrous to argue that the use of the motto fosters any excessive government entanglement with religion. OHair, 462 F. Supp. at 20.
(13) Catherine Millard, Gods Signature Over the Nations Capital (1988).
(14) "Do unto others as you would have them do unto you." Luke 6:31.
(15) Admittedly, the Supreme Court qualified its reasoning from history in Marsh, stating that "[s]tanding alone, historical patterns cannot justify contemporary violations of constitutional guarantees . . . .", but the same reasoning that then saved the legislative prayer in that case, should also save the display of Ohios motto in this one as the Court also held, "their [the framers] actions reveal their intent." Id. at 790. The framers actions, i.e., making public proclamations of a belief in and reliance upon God, reveal their intent that this sort of conduct should co-exist peacefully with the Establishment Clause.
(16) See Lee v. Weisman, 505 U.S. 577, 633 (1992), for Justice Scalias trenchant criticism of those who are so "oblivious to our history as to suggest that the Constitution restricts preservation and transmission of religious beliefs . . . to the private sphere." (Scalia, J., dissenting, quoting in part the majority opinion).
(17) Id. at 632, Justice Scalia stating that our nations constitutional protections must rest not on the "philosophical predilictions" of judges, but on "deep foundations in the historic practices of our people."
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