In God Ohio Can Still Trust

Last week a federal appeals court ruled that Ohio’s motto, "With God, all things are possible," does not violate the First Amendment’s ban against government establishment of religion. In a 9-4 decision, the 6th U.S. Circuit Court of Appeals argued that the motto, a direct quotation from the New Testament, expressed both religious and philosophical sentiments of Ohio citizens that did not establish a state preference for a particular religion. Needless to say, the American Civil Liberties Union of Ohio, a party to the case, was not pleased.

Groups like the ACLU believe the First Amendment’s religion clauses present a dilemma: how can government protect the "free exercise" of religion without effecting an "establishment of religion"? To protect religion is necessarily to favor or advance it, they argue in effect, and therefore constitutes an "establishment of religion."

Unfortunately, the Supreme Court has interpreted the First Amendment so inconsistently as to give no clear direction to the lower federal courts. And so Judge Nelson chose to decide this case according to not one but several standards culled from the Supreme Court’s various rulings.

He first appealed to historical precedent, arguing that America’s "long and deeply entrenched tradition of civic piety" permits "a broadly worded expression" of religious and philosophical sentiments "widely shared" by Ohio citizens. Government may therefore accommodate what even a dissenting justice called "a shared human yearning for the spiritual." As long as the state does not force citizens to believe or act on the motto, it passed constitutional muster.

Judge Nelson also noted the religious appeals of American presidents to illustrate how religion has informed American self-government from the outset. As our nation’s first president told his countrymen in his farewell address, "Of all the dispositions and habits which lead to political prosperity, Religion and Morality are indispensable supports." He added that "reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle." Judge Nelson couldn’t agree more.

Citing the 1983 Marsh precedent, which permitted the Nebraska legislature to hire a chaplain, the majority opinion recited examples from the Founding period to refute today’s notion that government should "impose a secular political culture on the nation." Believing that "their actions reveal their intent," Judge Nelson noted that the same Congress which drafted and approved the First Amendment also approved a chaplain to open their sessions with prayer. This early practice of governmental piety places the burden on those who would argue against any state action that expresses a religious sentiment.

In addition, the appeals court observed a great similarity between Ohio’s 42-year-old motto and the national one ("In God we trust"), which Congress authorized just three years before Ohio’s became official. The court concluded that to rule against Ohio for adorning its capitol square with a motto similar to one inscribed above the House Speaker’s chair in Congress would be "ludicrous."

Next, Judge Nelson turned to an "endorsement test" devised by Justice Sandra Day O’Connor. She had argued that if a "reasonable observer" would interpret a state action as an endorsement of a particular religion, then the action violated the establishment clause of the First Amendment. The Ohio motto, albeit a direct quotation from the New Testament (Matthew 19:26), was to the appeals court’s satisfaction sufficiently broad as to convey "nothing uniquely Christian" to the "reasonable observer." In fact, the district court had earlier ruled the motto to be constitutional as long as the Christian source of the text was not included.

Last, the majority opinion employed a three-part test established in Lemon v. Kurtzman (1971) to evaluate the constitutionality of the motto: (1) It must have a "secular legislative purpose"; (2) the motto "neither advances nor inhibits religion," and (3) it must not "foster an excessive government entanglement with religion."

The appeals court discussed at length the motto’s secular purpose in "boosting morale" in its citizenry and acknowledging the "humility that government leaders frequently feel" as they serve the public to show that the motto passes constitutional muster. As for advancing or inhibiting religion, the motto gives to no church or religious organization special aid or privilege. Last, the court gave short shrift to the third prong of the Lemon test, merely stating that they see no evidence of "institutional" entanglement.

Given the Supreme Court’s indecisiveness regarding church and state, this case should be ripe for appeal. And if Judge Nelson’s opinion proves persuasive, he may have the Supreme Court singing, "Give me that old-time religious protection."

Lucas E. Morel is assistant professor of politics at Washington and Lee University in Lexington, Virginia and is an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University.