Center for Law and Religious Freedom
A Division of Christian Legal Society

PUBLIC RELIGIOUS MOTTOS

1. INTRODUCTION
   
   In the United States, religious mottos appear on public buildings, on coins and currency, and in national and state anthems. This is consistent with a broader tradition in America upholding legislative and judicial prayer, the pledge of allegiance (including the phrase "under God" added in 1954, Pub.L. 396, 68 Stat. 249), public chaplains, public chapels, presidential proclamations of thanksgiving and prayer, and subsidized religious holidays. Strict separationists contend it is inconsistent with other Establishment Clause jurisprudence requiring the government not to endorse religion. Nevertheless, public religious mottos have generally been sustained primarily on the grounds that they represent a long-standing form of civic piety.



2. DISCUSSION



1. In God We Trust
   
   "In God we trust" is among the best known American mottos ¹. Three appellate courts have upheld its use on currency and coins. Two of these cases find it constitutional under the Lemon test². Gaylor v. United States, 74 F.3d 214 (10^th Cir. 1996), cert. den'd, 517 U.S. 1211 (1996) (citing, inter alia, O'Hair v. Blumenthal, 462 F.Supp. 19 (W.D. Tex. 1978), aff'd sub nom. O'Hair v. Murray, 588 F.2d 1144 (5^th Cir. 1978) (per curiam), and cert. den'd, 442 U.S. 930 (1979)). One of these courts also upheld it under the endorsement test, Gaylor, 74 F.3d at 217 ³; and an additional court upheld it by finding the national motto entirely excluded from the First Amendment. Aronow v. United States, 432 F.2d 242 (9^th Cir. 1970) ⁴.
   
   The application of the Lemon test to the national motto is most controversial in relation to the first two prongs⁵. Gaylor contends that the secular purposes underlying the national motto include symbolizing the historical role of religion in our society, formalizing our medium of exchange, and expressing confidence in the future. 74 F.3d at 216 (citations omitted). O'Hair adds, "Its use is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise." 426 F.Supp. at 20 (citing, inter alia, Aronow v. United States, 432 F.2d 242 (9^th Cir. 1970)). Aronow goes further and states the motto "has no theological or ritualistic impact." Aronow, 432 F.2d at 243 (the court did not employ the Lemon test).
   
   Regarding the national motto's primary effect, Gaylor followed dicta in Supreme Court decisions stating that the motto is "a form of ceremonial deism,' which through historical usage and ubiquity cannot be reasonably understood to convey government approval of religious belief." Gaylor, 74 F.3d at 216 (referring to the dicta as binding "almost as firmly" as an outright holding) (citing County of Allegheny v. ACLU, 492 U.S. 573, 603 (1989) (citing Lynch v. Donnelly, 465 U.S. 668, 693 (1984) (O'Connor, J., concurring); id at 716-17 (Brennan, J. dissenting) ("[S]uch practices as the designation of 'In God We Trust' as our national motto, or the reference to God contained in the Pledge of Allegiance can best be understood, in Dean Rostow's apt phrase, as a form of 'ceremonial deism,' protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content."))⁶.
   
   In Allegheny, the U.S. Supreme Court analogized the national motto to the non-sectarian legislative prayer upheld from an originalist perspective in Marsh v. Chambers, 463 U.S. 783 (1983). Allegheny, 492 U.S. 602-03. The Court stated that Marsh validated "such practices as our national motto ("In God We Trust") and our Pledge of Allegiance" (with the phrase "under God"), because it stood for the proposition that non-sectarian references to religion and practices dating from the founding of the republic are constitutional. Id. Other comments by Supreme Court justices find the national motto constitutional because the motto's long use has allegedly diminished its purely religious significance⁷.
   
   In Wooley v. Maynard, 430 U.S. 705 (1977), which held that a state, consistent with the First Amendment, could not require private persons to display a secular state motto on vehicle license plates, the Supreme Court sounded a cautionary note in dicta:

   It has been suggested that today's holding will be read as sanctioning obliteration of the National motto, 'In God We Trust' from United States coins and currency. That question is not before us today but we note that currency, which is passed from hand to hand, differs in significant respects from an automobile, which is readily associated with its operator. Currency is generally carried in a purse or pocket and need not be displayed by the public. The bearer of currency is thus not required to publicly advertise the National Motto.

   Id. at 717 n.15. Accordingly, the Court has implied it is skeptical of any public regulation or statute requiring individuals to display the national motto on their private property. Wooley did not speak directly to the public display of the national motto, which already occurs on public buildings ⁸.



2. State Religious Mottos


The Sixth Circuit recently held constitutional Ohio's official state motto, "With God, All Things are Possible." American Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Board, 243 F.3d 289 (6^th Cir. 2001) (en banc). Ohio adopted this motto in 1959, and began displaying it in conjunction with the state seal, three years after Congress adopted the national motto. Id. at 291. It is a direct quote from Matthew 19:26. Id. at 292. Nevertheless, the Court upheld the constitutionality of Ohio's motto and its placement with the seal on bronze flatwork in the plaza outside the statehouse ⁹, based upon the endorsement test, Lemon test, and an originalist defense of similar federal practices echoing Justice Brennan's treatment of the national motto as a form of harmless ceremonial deism or civic piety. Id. at 293-301. Interpreting the Establishment Clause, the Sixth Circuit explained:



[T]he [federal] prohibition against enactment of laws establishing religion . . . was not understood to be a prohibition against fostering or protecting religion . . . nor was it understood to be a prohibition against employing generalized religious language in official discourse. The notion that the First Amendment was designed to impose a secular political culture on the nation would have struck most 19^th Century judges as absurd.

Id. at 298.

The Sixth Circuit held that the reasonable observer "aware of the history and context of the community" would likely have no idea that the state motto was based on Matthew 19:26¹⁰. Id. at 302-03. According to the Court, "[t]here is, after all, nothing uniquely Christian about the thought that all things are possible with God. . . . [It] as much at home in the Greek philosophical tradition as within the Judeo-Christian tradition." Id. at 303. Applying the Lemon test, the Court argued that the state motto served a number of secular purposes including inculcating hope, making Ohio unique, solemnizing occasions, "acknowledg[ing] the humility that government leaders frequently feel in grappling with difficult public policy issues," "exhorting the reader to strive, and reinforcing the citizen's sense of membership in an identifiable state." Id. at 306-08. The Court held that the primary effect was not to advance religion, but "pay[] lip service to the puissance of God." Id. at 308.


3. CONCLUSION
   
   Religious mottos including the national motto have withstood constitutional scrutiny largely because they are deemed a form of civic piety similar to long-standing federal and state public observances including legislative prayer. The movement today to expand publication of these religious mottos on governmental buildings including public classrooms is, nevertheless, sure to meet resistance premised on the idea that this new use is for expressly religious purposes esigned to advance religion. It remains to be seen whether the same legal framework protecting religious mottos to date will protect these efforts or undermine their existing usage. Litigation could turn on what the legislative record reveals about the reasons for publishing the religious motto in new contexts.

¹"In God we trust" can be traced loosely to both the Old and New Testament. See Psalm 56:4, 11; Isaiah 12:2; 36:7; 2 Cor. 1:9; 1 Tim. 4:10; 1 Tim. 6:17; Heb. 2:13.

²In 1971, the U.S. Supreme Court decided Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), and courts began using its test to determine whether government conduct violated the Establishment Clause. The Lemon test consists of three prongs: (1) whether the challenged action has a secular purpose, (2) whether the primary effect of the challenged action is to promote or inhibit religion, and (3) whether the challenged practice leads to an excessive government entanglement with religion. Id. at 612-13.

³The Tenth Circuit held that a "reasonable observer, aware of the purpose, context, and history of the phrase 'In God we trust,' would not consider its use or its reproduction on U.S. currency to be an endorsement of religion." Gaylor v. United States, 74 F.3d 214, 217 (10^th Cir. 1996), cert. den'd, 517 U.S. 1211 (1996).

⁴Accord Opinion of the Justices, 108 N.H. 97, 228 A.2d 161 (N.H. 1967).

⁵Both Gaylor and O'Hair also found that the motto did not foster an excessive government entanglement with religion. O'Hair, 462 F.Supp. at 20 (referring to the idea of entanglement as "ludicrous"); Gaylor, 74 F.3d at 216.

⁶O'Hair agreed without analysis that the motto did not have the effect of advancing religion. 462 F.Supp. at 20.

⁷See also School District of Abington Township v. Schempp, 374 U.S. 203, 303 (1963) (Brennan, J., concurring) ("[T]he Establishment Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. This rationale suggests that the use of the motto 'In God We Trust' on currency, on documents and public buildings and the like may not offend the clause. It is not that the use of those four words can be dismissed as 'de minimis'-for I suspect there would be intense opposition to the abandonment of that motto. 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."); Marsh v. Chambers, 463 U.S. 783, 818 (1983) (Brennan and Marshall, JJ., dissenting) (stating the view that mottos like "In God we trust," "God save the United States and this Honorable Court," and "One Nation Under God," are consistent with the Establishment Clause, "not because their import is de minimis, but because they have lost any true religious significance."); Engel v. Vitale, 370 U.S. 421, 449-50 (1962) (Stewart, J., dissenting) (the motto and other practices established 200 years ago reveal "[w]e are a religious people whose institutions presuppose a Supreme Being.")

⁸American Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Board, 243 F.3d 289, 301 (6^th Cir. 2001) (en banc) ("The national motto happens to be inscribed directly above and behind the Speaker's Chair in the United States House of Representatives Chamber."); Opinion of the Justices, 228 A.2d at 101-02 (finding constitutional a state resolution requiring "In God we trust" to be "prominently displayed, and maintained, on the wall of each and every class room in all of our public education institutions. . . ."; adding that the national motto already appeared on public buildings). Accord Schempp, 374 U.S. at 303 (Brennan, J., concurring) ("[U]se of the motto 'In God We Trust' on . . . public buildings and the like may not offend the [Establishment] Clause.")

⁹Cf. Webb v. City of Republic, Missouri, 55 F.Supp.2d 994 (W.D. Mo. 1999) (establishment clause forbids use of religious symbol, a fish, in municipal seal); American Civil Liberties Union v. City of Stow, 29 F.Supp.2d 845 (N.D. Ohio 1998) (city's seal with its display of the cross violates the Establishment Clause since "an objective and reasonably informed observer" would conclude that adherence to the Christian faith is "relevant to a citizen's standing in the political community.")

¹⁰A poll conducted in the Spring of 1997, using questions framed by the ACLU, revealed that only about two percent of randomly selected citizens of Summit County, Ohio, could come reasonably close to recalling the content of Ohio's motto, to say nothing of its source." Capitol Square Review, 243 F.3d at 289 n.13.