The Nuts and Bolts of the 3/16/01 Motto Decision

March 18th 2001

The following is selected text from the 6th District Court opion that rulled 9 to 4 that Ohio's state motto "With God All Things Are Possible" was consitutional. The decision was handed down on March 16th, 2001. To read the entire decision click on the next link:

Motto Court Decision issued on 03/16/2001


"Given the history referred to above, it seems reasonably clear to us that in the age of Washington, Jefferson and Madison, as in the age of Lincoln, the statute in which Ohio established its current motto would not have been deemed violative of the United States Constitution as a law respecting an establishment of religion. And, all things considered, we think the plaintiffs were probably wise to abandon any attempt to show that there was ever a time when the motto would have been deemed to violate Article 1 7 of the Ohio Constitution.

The motto involves no coercion. It does not purport to compel belief or acquiescence. It does not command participation in any form of religious exercise. It does not assert a preference for one religious denomination or sect over others, and it does not involve the state in the governance of any church. It imposes no tax or other impost for the support of any church or group of churches. Neither does it impose any religious test as a qualification for holding political office, voting in elections, teaching at a university, or exercising any other right or privilege. And, as far as we can see, its adoption by the General Assembly does not represent a step calculated to lead to any of these prohibited ends.

The motto is merely a broadly worded expression of a religious/philosophical sentiment that happens to be widely shared by the citizens of Ohio. As such, we believe, the motto fits comfortably within this country's long and deeply entrenched tradition of civic piety, or "ceremonial deism," as Yale Law School's Eugene Rostow called it. Like state-financed prayers by a legislative chaplain, "it is simply a tolerable acknowledgment of beliefs widely held among the people of this country." See Marsh v. Chambers, 463 U.S. 783, 792 (1983). Judged by historical standards, adoption of the motto no more represents a step toward an establishment of religion than does our own practice of opening each session of court with a crier's recitation of the set piece that concludes - in words also called out in the United States Supreme Court each day that Court sits - "God save the United States and this Honorable Court."

If our history demonstrates anything, it demonstrates that "[t]he people of the United States did not adopt the Bill of Rights in order to strip the public square of every last shred of public piety." Chaudhuri v. State of Tenn., 130 F.3d 232, 236 (6th Cir. 1997), cert. denied, 523 U.S. 1024 (1998). The notion that the First Amendment commands "a brooding and pervasive devotion to the secular," to borrow the late Justice Arthur Goldberg's dismissive phrase, is a notion that simply perverts our history. See School Dist. of Abington Township v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring).

The large body of historical evidence concerning the original understanding of the constitutional provisions at issue here may or may not be dispositive of the present appeal. The importance of that evidence, however, can hardly be doubted. See Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888) (quoted with approval in Marsh, 463 U.S. 790), where the Supreme Court declared that an act "passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument . . . is contemporaneous and weighty evidence of its true meaning." (Emphasis supplied.)

In Marsh itself - where the Supreme Court applied what it held to be the "true meaning" of the Establishment Clause - the Court sustained the constitutionality of a practice under which the State of Nebraska paid the salary of a clergyman employed to serve as chaplain to the state legislature. It was the chaplain's job to offer a public prayer at the opening of each legislative day.(8) The Supreme Court pointed out that "the men who wrote the First Amendment Religion Clause did not view paid legislative chaplains and opening prayers as violative of that Amendment . . . ." Marsh, 463 U.S. at 788. This fact, reinforced by the fact that the practice had been followed at both federal and state levels ever since, established more than an historical pattern, in the Court's view; the historical evidence, said the Court, "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.

If Marsh remains good law today (and the Court has given us no solid reason to doubt that it does), the Supreme Court's decision in that case obviously supports the conclusion reached by the district court in the case at bar. The actions of the First Congress, as we have seen, reveal that its members were not in the least disposed to prevent the national government from acknowledging the existence of Him they were pleased to call "Almighty God," or from thanking God for His blessings on this country, or from declaring religion, among other things, "necessary to good government and the happiness of mankind."

The drafters of the First Amendment could not reasonably be thought to have intended to prohibit the government from adopting a motto such as Ohio's just because the motto has "God" at its center. If the test which the Supreme Court applied in Marsh is to be taken as our guide, then, Ohio's God-centered motto clearly passes constitutional muster.

The national government itself adopted just such a motto in the Act of July 30, 1956 (70 Stat. 732)), now codified as 36 U.S.C. 302: "'In God we trust' is the national motto."(9) No fewer than three of our sister circuits have upheld the constitutionality of the national motto against challenges based on the Establishment Clause. See Aronow v. United States, 432 F.2d 242 (9th Cir. 1970); O'Hair v. Murray, 588 F.2d 1144 (5th Cir.), cert. denied, 442 U.S. 930 (1979); Gaylor v. United States, 74 F.3d 214 (10th Cir.), cert. denied, 517 U.S. 1211 (1996). The Supreme Court has never questioned the proposition that the national motto can survive scrutiny under the Establishment Clause, and we should be utterly amazed if the Court were to question the motto's constitutionality now.(10) The national motto happens to be inscribed directly above and behind the Speaker's Chair in the United States House of Representatives Chamber, and the idea of any federal court having the temerity to order the inscription stricken from the nation's Capitol strikes us as ludicrous.



*****


It has been argued that there is a world of constitutional difference between "In God We Trust" and "With God All Things Are Possible."(11) In the real world, it seems to us, the alleged difference is almost impossible to discern. To the reasonable observer - a person relatively unschooled in the more esoteric reaches of theology, philosophy, and biblical exegesis - both mottos would appear to have been cut from the same bolt of cloth. The purported distinction strikes us as utterly unpersuasive.(12)

Our "reasonable observer" is a judicial construct, of course - much like the "reasonable person" in the law of torts - but this fictive being often plays an important role in contemporary First Amendment jurisprudence. This is so because, under our current understanding of the Establishment Clause, we should almost certainly be required to hold the Ohio motto unconstitutional were we to conclude that a reasonable observer would take the motto to be an official endorsement of the Christian religion. See Pinette, 515 U.S. at 778-80 (O'Connor, J., concurring). "The relevant issue," as Justice O'Connor has said elsewhere, is "whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement . . . ." Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O'Connor, J., concurring).

Although the reasonable observer is "deemed aware of the history and context of the community and forum in which the religious display appears" Pinette, 515 U.S. at 780 (O'Connor, J., concurring), such an observer is not to be deemed omniscient. While "[t]here is always someone who, with a particular quantum of knowledge, reasonably might perceive a particular action as an endorsement of religion," that "someone" does not personify the community ideal with which we are concerned in applying the endorsement test. Id. (O'Connor, J., concurring).

The truth of the matter, of course, is that no reasonable observer of the Ohio scene is likely to have an encyclopedic knowledge of press releases issued more than 40 years ago by the late Secretary of State Ted W. Brown. (See the text accompanying note 2, supra.) And - depressing though it may be to anyone inclined to agree with the framers of the Northwest Ordinance that schools and the means of education should forever be encouraged for the reason that "[r]eligion, morality, and knowledge [are] necessary to good government and the happiness of mankind" - it is also true that most Ohio citizens credited with being aware of "the history and context" of their community are unlikely to have even the vaguest notion of the source from which Ohio's motto was drawn. At the trial of this case, for example, one of the plaintiffs' own expert witnesses - a Jewish rabbi (who, it should be said in fairness, did not present himself as an expert on the gospels) - admitted that he could not have identified the source of the motto before his recollection was refreshed by the A.C.L.U. If placed under oath, similarly, few members of this court could deny having been in the same boat as the rabbi.(13) If our "reasonable observer" is to bear any reasonable resemblance to ordinary people, ignorance alone would doubtless provide a sufficient guaranty that such an observer would not see Ohio's motto as an endorsement of Christianity.

It is probably not the case, however, that the idealized observer ought to be deemed as ill-informed as he or she almost certainly would be in real life. See Pinette, 515 U.S. at 780, where Justice O'Connor, in her concurring opinion, said that "proper application of the endorsement test requires that the reasonable observer be deemed more informed than the casual passerby . . . ." As a matter of law, in other words, it may well be that the reasonable observer ought to be deemed to know about Secretary Brown's press releases and other official literature identifying the source of the motto,(14) as well as being credited with detailed knowledge of the text of the New Testament, plus some familiarity with the religious and philosophical traditions of the various peoples, ancient and modern, who have contributed to the religious, cultural and philosophical heritage of the State of Ohio.

Based on the record before us, we consider it most unlikely that an observer as well informed as this could discern an endorsement of Christianity in the words of Ohio's motto. There is, after all, nothing uniquely Christian about the thought that all things are possible with God.

But the question before us is not whether a reasonable person could be irritated by any or all of this. Much of what government does is irritating to someone. For example, the substantive content of the forms distributed by the Ohio Department of Taxation - particularly the line on the income tax form that says "AMOUNT YOU OWE" - is likely to be more irritating to more Ohioans than any motto imprinted on the Tax Department's stationery. This hardly makes the income tax unconstitutional. Our level of irritation with a given governmental action is simply not a reliable gauge of the action's constitutionality. The mere fact that something done by the government may offend us philosophically or aesthetically does not mean, ipso facto, that the Constitution is offended.

Under the form of government that has served us well for over two centuries, the role of this court in the case now before us is a narrow one. The United States Constitution requires us to decide one question and one question only: whether Ohio Rev. Code 5.06 is a "law respecting an establishment of religion." If we answer that question in the negative, our job is over. We might wish that the Framers of the Constitution had chosen to give us the powers of a council of revision, but they did not do so.

Obviously, however, the plaintiffs are not without a remedy. As helpfully explained in the latest edition of the Ohio Citizen's Digest, "Ohio's state government contains three branches: executive, legislative and judicial." The plaintiffs' remedy lies not with the judicial branch, but with the branch that repealed the first Ohio motto by which some of the state's citizenry were irritated.

For all of the foregoing reasons, and for the reasons articulated by the District Judge Graham in his carefully drawn opinion, the challenged judgment is AFFIRMED.(22)


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