Ohio ACLU to appeal federal decision upholding state’s Christian motto

Thursday, September 17, 1998

The Ohio chapter of the American Civil Liberties Union has not given up on its argument that the state motto – taken from the Christian New Testament – violates the separation of church and state.

On Tuesday, the ACLU filed a notice of appeal with the 6th U.S. Circuit Court of Appeals seeking a reversal of a district court decision handed down earlier this month allowing the state to inscribe its motto – “With God All Things Are Possible” – on a main entrance to the Statehouse in Columbus.

U.S. District Judge James L. Graham ruled in ACLU of Ohio v. Capitol Square Review and Advisory Board that the Christian-based motto could be inscribed anywhere on Statehouse grounds. Graham, however, said the state could not indicate the source of the motto.

Graham concluded that “an objective and reasonably informed observer” would not understand the motto as sectarian. Instead Graham called the passage taken from the Gospel of Matthew an aphorism that, like many others, has become part of “our common vocabulary.” As an example, Graham noted the national motto, “In God We Trust,” which is used on the dollar bill.

ACLU attorneys had argued that the state's use of the motto would violate the separation of church and state and that no Ohio citizen entering the Statehouse should be “forced to observe this association of the state government with the words of Jesus.”

Mark Cohn, one of the ACLU attorneys who argued against the motto, said that he believed Graham misconstrued First Amendment establishment-clause jurisprudence in upholding state use of the religious words.

“The words are from the Christian Bible and are wholly divine to Christians,” Cohn said. “Those words are either inspired by God or constitute divine words and they are not to be secularized at the whim of state politicians.”

Cohn said the state endorses religion over nonreligion by using the motto.

The ACLU had filed a request last week asking Graham to prevent the state from inscribing the motto on Statehouse grounds while the appeal is argued.

Ron Keller, executive director of the Capitol Square Review and Advisory Board, said that the motto has already been inscribed over the state seal in the west plaza of the capitol grounds.

Cohn said he would now seek a court order forcing the state to remove the inscription while the case is appealed.

Keller defended Graham's decision as “thoughtful and reasoned.” He said he did not believe the 6th Circuit would overrule it.

“I think the ACLU appealing the decision is fine,” Keller said. “They should do what they believe is right, but they are swimming upstream, as far as I'm concerned. I think this motto has different kinds of significance and meaning for all kinds of people and does not violate the establishment clause.”

Keller added that the motto was suggested by a 12-year-old Cincinnati boy, who did not know the its origin. “The boy claimed his mother used the passage three or four times a day, whenever he would offer up complaints of some sort.” In 1959, the Ohio General Assembly enacted the motto.

Cohn, however, said that regardless of the intention in adopting the motto, it still failed the Supreme Court test developed to determine when state actions or laws run afoul of the establishment clause.

In 1971, the U.S. Supreme Court in Lemon v. Kurtzman ruled that a government law or action would be permissible under the establishment clause if it had a secular purpose and it neither advanced nor inhibited religion, and it could not create an excessive entanglement between church and state. The high court has used that test to invalidate public school-sponsored prayers, Bible readings and other religious activities and symbols in public schools and settings.

Since that landmark case several of the justices have invoked an alternative test when deciding establishment-clause violations. Justice Sandra Day O'Connor in a concurring opinion in the 1984 Lynch v. Donnelly decision proposed a “no-endorsement” test. That test would forbid the government from sending a message that religious beliefs are endorsed or disapproved by government.

O'Connor wrote: “Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.”

Additionally, she wrote, “Government practices that purport to celebrate or acknowledge events with religious significance must be subjected to careful judicial scrutiny.”

Cohn said that Ohio's use of the motto sends a message of preference for Christianity specifically and religion in general.