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March/April 1999

Discover more articles from this issue.

Principles or Procedure?

Do the religion clauses of the First Amendment say anything meaningful about the respective roles of the church and the state? In "Wrong Jurisdiction"...

On Rights and Restraints

Individual Rights and Structural Restraints The difference between rights and structure within the overall Constitution is commonplace. For government...

The Establishment Clause Assault

The Bell and McCord children were verbally assaulted at the school, not just by students, but by the faculty as well. Upside-down crosses were taped to...

With God All Things Are Possible

Background The controversy involved Capitol Square, a 10-acre site in Columbus, where the Ohio state capitol building, or "statehouse," is located. The...

Iambs And Pentameters

In the first ruling of its kind, a federal judge in Virginia declared that a public library cannot install filters on its computers. Why? Because the...

Outsiders!

In 1991 the Willis family moved to Troy, Alabama, from Seattle, Washington. Their youngest child, Rachel Willis, stayed home with Mrs. Willis, while their...

A Secular Nation?

The laws of every society reflect certain moral presuppositions. The law prohibits, allows, or promotes certain behaviors based upon what that society...

Magazine Archive »

Published in the March/April 1999 Magazine
by James L. Graham

Background

The controversy involved Capitol Square, a 10-acre site in Columbus, where the Ohio state capitol building, or "statehouse," is located. The Capitol Square Review and Advisory Board regulates all uses of Capitol Square, while the governor has the authority to approve all uses of the official state seal. The plaintiffs alleged that Governor George Voinovich approved the use of the motto and that he even originated the idea of displaying it at the statehouse.

In 1959 the General Assembly of Ohio enacted legislation declaring the phrase "With God All Things Are Possible" to be the state's official motto. No official legislative history of the statute exists, but contemporary documents and newspaper accounts indicate that it was suggested by a 12-year-old Cincinnati boy, James Mastronardo, who made several trips to Columbus to speak to the General Assembly on behalf of his proposal, which eventually passed. A press release issued at that time indicates that young James "chose a verse in the New Testament, Matthew 19:26 . . . from which to draw the official motto."

The state seal is a circular device that contains no religious symbols. In the foreground 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. In May 1996 Governor Voinovich recommended 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 Arguments

The ACLU sought a declaratory judgment declaring the motto unconstitutional, and requested a permanent injunction stopping the defendants from displaying it 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, plaintiffs asserted that Ohio's motto endorsed the Christian religion over other religions, and sought that use of the motto be forbidden unless justified by a compelling government interest (Larson v. Valente). The ACLU also argued too that the motto was sectarian because it is taken from the New Testament, specifically from Jesus, arguments that the court found unpersuasive.

First, though the motto appears to have been taken from the New Testament (Matthew 19:26), the words are only part of a sentence, and have been completely removed from their original context. In fact, as they appear on the motto, they do not suggest a denominational preference. In fact, they don't even state a principle unique to Christianity. They could be classified as generically theistic, and certainly compatible with the world's three major monotheistic religions: Judaism, Christianity, and Islam.

The golden rule, "Do Unto Others as You Would Have Them Do Unto You," is also attributed to Jesus. In fact, many common aphorisms originated in the Hebrew Bible or the New Testament. The national motto, "In God We Trust," was, it seems, inspired by the Hebrew Bible. None of these expressions are regarded as sectarian; neither should this motto.

The plaintiffs also presented no evidence that a reasonable person who read the words of the motto would recognize them as coming from Jesus or understand them to suggest a denominational preference. One witness, Rabbi Harold Berman, of Columbus, did not recognize the source of the motto. He said only that it "sounded vaguely familiar." Another witness, David Belcastro, an associate professor of religious studies at Capital University in Columbus, testified that the average college student would not know the source. The court concluded, therefore, 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, "Matthew 19:26." However, the statute that established the motto did not contain this reference, nor did the state intend to include it on the Capitol Square Plaza.

Despite the ACLU claim, this case is unlike County of Allegheny, in which the sectarian nature of the phrase "Glory to God in the Highest" was manifested by its context: the display of a creche depicting the birth of Jesus. The words of the Ohio motto, instead, were to be displayed in the context of the state seal, a completely secular device.

The ACLU argued that even if not sectarian, the motto constitutes a governmental preference of religion over nonreligion, which the Supreme Court has ruled is not permissible under Establishment Clause jurisprudence. However, the High Court didn't rule out every aspect of official acknowledgment of religion, such as in Marsh v. Chambers, which sets the precedent for this case.

Precedents

In Marsh the Court upheld the practice of the Nebraska legislature to begin each session with a prayer offered by a chaplain paid out of public funds. The Court noted that "the opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country."
The Court stated that one of the first actions of the original Congress, the same Congress that drafted the Establishment Clause, was election of chaplains for both houses, men were who were, in fact, paid out of the public treasury; that this practice has continued uninterrupted and has been followed consistently in most of the states. Chief Justice Warren Burger, speaking for the Court, said:

"Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns. In this context, 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."


He also said: To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward estab-lishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country."

Like the practice of opening legislative sessions with prayers--official mottoes, oaths, and inscriptions that acknowledge the religious heritage of our nation are also deeply embedded in our history and tradition. Thus the Court, in School District of Abington Township, Pennsylvania v. Schempp, referring to that tradition, said: "This background is evidenced today in our public life through the continuance in our oaths of office from the presidency to the alderman of the final supplication, 'So help me God.'"

Every justice or judge of the United States is required to take an oath to discharge faithfully and impartially the duties of the office, "so help me God."

Justice Stewart noted in Engel v. Vitale: "At the opening of each day's session of this Court, we stand while one of our officials invokes the protection of God. Since the days of John Marshall our crier has said, 'God save the United States and this Honorable Court.'"

In Lynch v. Donnelly, Chief Justice Burger, writing for the Court, said:
"There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789. .... Our history is replete with official references to the value and invocation of divine guidance in deliberations and pronouncements of the founding fathers and contemporary leaders."

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.

In County of Allegheny, Justice Blackmun, writing for the Court, acknowledged: "Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement of religious belief."

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.

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. It is also engraved over the entrance to the Senate chambers. 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." Congress has directed the president to proclaim a National Day of Prayer each year. Our presidents have repeatedly issued such proclamations.

The national anthem, adopted by an official act of Congress, concludes with the following verse: Oh! thus be it ever when freemen shall stand Between their lov'd home and the war's desolation, Blest with vict'ry and peace, may the heav'n-rescued land Praise the Power that hath made and preserved us a nation. 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."

The plaintiffs argued that this case should not be governed by the rule in Marsh because, in their view, its holding is limited to practices that "themselves were sanctioned by their history and ubiquity." Thus, plaintiffs claimed that Marsh must be limited to only those specific practices that began at or before the foundation of the republic and not similar or equivalent practices of later origin.

Yet the rule of Marsh is not so limited. Nebraska, of course, was not one of the original 13 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 more than 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.

Ohio's motto was adopted nearly 40 years ago. At least five other states have mottoes that contain some religious content. The national motto, "In God We Trust," was not officially adopted until 1956, just three years before Ohio adopted its motto. The phrase "Under God" was not added to the Pledge of Allegiance until 1954. The national anthem was adopted by an act of Congress in 1931.

The Court in Marsh did not limit its ruling to only those practices that could trace their origins to the founding of the republic; instead, the Court said, "It 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."

The Lemon Standard

The court in ACLU v. Capitol Square ruled that this case is an exception to the rule of Lemon v. Kurtzman, which is not the exclusive test or criterion in Establishment Clause cases. In Hunt v. McNair 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." 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.

Fourteen years ago in Lynch, Justice Sandra Day 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 contested government action "sends a message to nonadherents that they are outsiders, not full members of the political community."

Ohio's motto passes Justice O'Connor's endorsement test. In Lynch Justice O'Connor said that governmental "acknowledgments" of religion, such as legislative prayers, the 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, "in the only ways reasonably possible in our culture, the legitimate secular purposes 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, those practices are not understood as conveying government approval of particular religious beliefs."

Verdict

In light of history, there can be little doubt that Ohio's motto. "With God All Things Are Possible," does not violate the Establishment Clause. Thus, the Court ruled that the ACLU's motion that the motto itself be ruled unconstitutional and not placed in the seal was denied. The Court did, however, permanently forbid the state of Ohio from attributing the words of the motto to the text of the Christian New Testament. In light of the argument given above, in an attempt to balance our nation's religious heritage with the protections found in the Establishment Clause, that ruling seemed to be the most judicious and fair one possible.

James L. Graham is a United States district judge in the Southern District of Ohio.

Author: James L. Graham

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