AMERICAN CIVIL LIBERTIES UNION OF OHIO ; MATTHEW PETERSON , Reverend v. Capitol Square Review

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0148P (6th Cir.)
File Name: 00a0148p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AMERICAN C IVIL LIBERTIES
UNION OF OHIO ; M ATTHEW
P ETERSON , Reverend,
Plaintiffs-Appellants,
v.
C APITOL S QUARE R EVIEW
AND ADVISORY BOARD ;
R OBERT TAFT , Governor of
Ohio; R ONALD R. KELLER;
DANIEL S HELLENBARGER;
R ICHARD H. FINAN ; J.
KENNETH BLACKWELL,
Secretary of State; THOMAS
M. ZAINO , Tax
Commissioner,
Defendants-Appellees.
;>

1
No. 98-4106
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 97-00863—James L. Graham, District Judge.
Argued: November 4, 1999

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2 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
No. 98-4106
*The Honorable Avern Cohn, United States District Judge for the
Eastern District of Michigan, sitting by designation.
Decided and Filed: April 25, 2000
Before: MERRITT and NELSON, Circuit Judges; COHN,
District Judge.*
_________________
COUNSEL
ARGUED: Mark B. Cohn, McCARTHY, LEBIT,
CRYSTAL & HAIMAN, Cleveland, Ohio, for Appellants.
David M. Gormley, OFFICE OF THE ATTORNEY
GENERAL OF OHIO, Columbus, Ohio, for Appellees.
ON BRIEF: Mark B. Cohn, McCARTHY, LEBIT,
CRYSTAL & HAIMAN, Cleveland, Ohio, Susan B. Gellman,
WOLMAN, GENSHAFT & GELLMAN, Columbus, Ohio,
Thomas D. Buckley, Jr., ACLU OF OHIO FOUNDATION,
INC., Cleveland, Ohio, for Appellants. Edward B. Foley,
OFFICE OF THE ATTORNEY GENERAL OF OHIO,
Columbus, Ohio, for Appellees. David R. Huggins, THE
NATIONAL LEGAL FOUNDATION, Virginia Beach,
Virginia, John G. Stepanovich, Shawn A. Voyles, THE
AMERICAN CENTER FOR LAW & JUSTICE MID-
ATLANTIC, Virginia Beach, Virginia, for Amici Curiae.
COHN, D. J., delivered the opinion of the court.
MERRITT, J. (pp. 53-57), delivered a separate concurring
opinion, in which COHN, D. J., joined. NELSON, J. (pp. 58-
61), delivered a separate dissenting opinion.

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No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
3
1Leonard W. Levy, Origins of the Bill of Rights 102 (Yale Univ.
Press 1999).
_________________
OPINION
_________________
COHN, District Judge.
By separating government and religion the establishment
clause enables [a religious heterogeneous] society to
maintain some civility among believers and unbelievers
as well as among diverse believers.
– Leonard Levy1
I. Introduction
A. Issue
In this case we are called upon to decide whether or not the
official motto of the State of Ohio, “With God All Things Are
Possible,” taken directly from the New Testament of the
Christian Bible, violates the Establishment Clause of the First
Amendment to the Constitution. Disagreeing with the district
court, which found the words of the motto compatible with
the Constitution, American Civil Liberties Union v. Capitol
Square, 20 F. Supp. 2d 1176 (S.D. Ohio 1998), we find that
it does violate the Establishment Clause and, accordingly,
reverse the district court. Review is de novo, New Life
Baptist Church Academy v. Town of East Long Lake Meadow,
885 F.2d 940, 941 (1st Cir. 1989). Our reasons follow.
B. Parties
Plaintiffs-appellants are the American Civil Liberties Union
of Ohio and Matthew Peterson, a Presbyterian Minister.
Defendants-appellees are the Capitol Square Review and

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4 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
No. 98-4106
2While the suit is directed primarily at the installation in the Capitol
Square Plaza, the clear thrust of the complaint is at the use of the words
of the motto in all forms by the State of Ohio.
3The Establishment Clause reads in relevant part: “Congress shall
make no law respecting an establishment of religion . . . .” Under
Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 (1943), it is
applicable to the several states through the Fourteenth Amendment.
Advisory Board (Board), Ronald T. Keller, Executive
Director of the Board, Daniel Shellenbarger, Assistant
Director of the Board, and Richard H. Finan, an Ohio State
Senator and chairperson of the Board, as well as George
Voinovich, then Governor of Ohio, Bob Taft, then Secretary
of State of Ohio, now Governor, and Roger W. Tracy, then
Commissioner of the Ohio Department of Taxation. The
defendants collectively will be referred to as the State.
C. Background
1.
After seeing the motto, “Government Work is God’s
Work,” inscribed on a public building in India, Governor
Voinovich urged the Board to install an engraved state seal
and the words of the Ohio motto on a granite plaza at the west
end of the state house located in Capitol Square Plaza. In
1996, following an announcement that the Board intended to
do so, plaintiffs brought suit for a declaratory judgment and
injunction.2 Following a one-day trial, at which experts in the
field of religion testified as to the origins and interpretation of
the words of the motto in the context of which they are found
in the New Testament, and numerous exhibits were received
into evidence, the district court found that the words of the
motto were compatible with the Establishment Clause3 and
denied plaintiffs relief. The district court, however, without
explanation, permanently enjoined the State of Ohio from
attributing the words of the motto to the text of the New
Testament.
No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
61
F.Supp. 1183-85 makes it obvious, I think, that the Framers themselves
would not have dreamed that the adoption of Ohio’s religiously-oriented
motto could be thought to constitute an “establishment of religion.” In an
action no less “political” than the adoption of the national and state
mottos, for example, the Congress that gave us the First Amendment
called upon President Washington to proclaim – as he did – “a day of
public thanksgiving and prayer, to be observed by acknowledging with
grateful hearts the many and signal favours of Almighty God.” Id. at
1181 (citation omitted).
“‘Establishment of religion,’ as the term was used in the days of the
Founders, connoted such things as the payment of clerical salaries by the
state, the governmental prescription of articles of faith, the imposition of
religious tests for office, and the official endorsement of particular forms
of worship.” American Civil Liberties Union v. City of Birmingham, 791
F.2d 1561, 1568-69 (6th Cir.) (Nelson, J., dissenting), cert. denied, 479
U.S. 939 (1986). James Madison – “the draftsman of and the guiding
hand behind the First Amendment,” as the concurring opinion accurately
describes him – said during the debates of the First Congress that led up
to the adoption of the Establishment Clause that “he apprehended the
meaning of the words to be, that Congress should not establish a religion,
and enforce the legal observation of it by law, nor compel men to worship
God in any manner contrary to their conscience.” 1 Annals of Cong. 730
(1789), as quoted in Wallace v. Jaffree, 472 U.S. 38, 95 (1985)
(Rehnquist, J., dissenting). Ohio’s motto comes nowhere close to doing
this.
My problem, of course, is that within my lifetime there has been a
radical evolution in judicial thinking on what the Establishment Clause
proscribes. Justice Rehnquist, as he then was, alluded in his Wallace
dissent to a “mischievous diversion of judges from the actual intentions
of the drafters of the Bill of Rights.” Id. at 107. Mischievous or not, the
diversion is an obvious fact.
To say precisely how far the diversion from the Founders’ intentions
has progressed calls for powers of analysis – or divination – that I do
not possess. If the spirit that animated the Supreme Court’s decision in
Marsh v. Chambers were to guide us here, we would decide the present
case in accordance with the original understanding of the phrase “an
establishment of religion.” But I readily acknowledge that the Marsh
approach is not one that has been followed consistently – and that is why
I have chosen to rest mainly on the proposition that if the national motto
is constitutional, Ohio’s motto is constitutional too. This may be
simplistic, but I hope it at least has the virtue of being comprehensible.

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60 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
No. 98-4106
2The concurring opinion prompts me to add that if the
constitutionality of Ohio’s motto were to be decided according to the
intent of the Framers of the Establishment Clause, this would be a very
easy case indeed. The evidence marshalled by the district court at 20
could not have identified the source of either motto, and I
doubt that it is vanity alone which prompts me to suggest that
my ignorance is far from atypical.
If I am wrong in thinking that the reasonable observer need
not be omniscient, on the other hand, it is by no means clear
to me that an omniscient observer would recognize that our
national motto is not an endorsement of Judaism but would
conclude that Ohio’s motto is nonetheless an endorsement of
Christianity. Such an observer – completely familiar with the
long tradition of “ceremonial deism” described in the majority
opinion – would reasonably conclude, I believe, that both the
Ohio motto and the national motto fit comfortably within that
tradition.
An omniscient observer would know that Ohio’s motto law
(Ohio Rev. Code §5.06) is codified in the same chapter as
statutes designating the state wild flower (Ohio Rev. Code
§ 5.021), the official state bird (Ohio Rev. Code § 5.03), the
official state animal (Ohio Rev. Code § 5.032), the state coat
of arms (Ohio Rev. Code § 5.04), the official state tree (Ohio
Rev. Code § 5.05), the official state gem stone (Ohio Rev.
Code § 5.07), the official state invertebrate fossil (Ohio Rev.
Code § 5.071), the official state beverage (Ohio Rev. Code
§ 5.08), and the state song (Ohio Rev. Code § 5.09). The
statutory context hardly suggests that the challenged law
involves an establishment of religion.
Accordingly, and for substantially all of the reasons given
by the district court in its scholarly and thoughtful opinion,
American Civil Liberties Union of Ohio v. Capitol Square
Review and Advisory Board, 20 F. Supp.2d 1176 (S.D. Ohio
1998), I would affirm the holding that Ohio has not acted
unconstitutionally.2
No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
5
2.
The words of the motto, “With God All Things Are
Possible,” are a direct quotation from Chapter 19, Verse 26 of
the Gospel According to Matthew of the New Testament. It
reads in relevant part:
The children were brought to him that he might lay his
hands on them and pray. The disciples rebuked the
people; but Jesus said, “Let the children come to me, and
do not hinder them; for to such belongs the kingdom of
heaven.” And he laid his hands on them and went away.
And behold, one came up to him, saying, “Teacher,
what good deed must I do, to have eternal life?” And he
said to him, “Why do you ask me about what is good?
One there is who is good. If you would enter life, keep
the commandments.” He said to him, “Which?” And
Jesus said, “You shall not kill, You shall not commit
adultery, You shall not steal, You shall not bear false
witness, Honor your father and your mother, and, You
shall love your neighbor as yourself.” The young man
said to him, “All these I have observed; what do I still
lack?” Jesus said to him, “If you would be perfect, go,
sell what you possess and give to the poor, and you will
have treasure in heaven; and come, follow me.” When
the young man heard this he went away sorrowful; for he
had great possessions.
And Jesus said to his disciples, “Truly, I say to you, it
will be hard for a rich man to enter the kingdom of
heaven. Again I tell you, it is easier for a camel to go
through the eye of a needle than for a rich man to enter
the kingdom of God.” When the disciples heard this they
were greatly astonished, saying, “Who then can be
saved?” But Jesus looked at them and said to them,
“With men this is impossible, but with God all things are
possible.”

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6 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
No. 98-4106
4The King James Version and the Revised Standard Version differ
slightly in text. See The Interpreters Bible, Vol. VII pp. 482-87.
Matthew 19:13-26 (Oxford Annotated Bible with the
Apocrypha, Revised Standard Version)4 (emphasis added).
Essentially, what is being described is a dialogue between
Jesus, a rich young man, and Jesus’ disciples in which Jesus
concludes by saying that the salvation of a rich man is a
miracle that only God can accomplish. A similar account is
found in Mark 10:14-27 and Luke 18:15-27.
3.
a.
The American Heritage Dictionary of the English Language
(3d ed.1992) describes as the central and most commonly
sought meaning of Jesus, Christ, Christianity, and Christian
as follows:
- Jesus - A teacher and prophet who lived in the first
century of this era and whose life and teachings form the
basis of Christianity. Christians believe Jesus to be Son
of God and the Christ.
- Christ - The Messiah, as foretold by the prophets of the
Old Testament.
- Christianity - The Christian religion, founded on the life
and teachings of Jesus.
- Christian - Professing belief in Jesus as Christ or
following the religion based on the life and teachings of
Jesus.
The American Heritage Dictionary further describes as the
central and most commonly sought meaning of Matthew,
Apostle, Gospel, and Salvation as follows:
No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
59
1The concurring opinion suggests that a reasonable observer would
understand that the God of whom the national motto speaks could be a
mere golden calf, while the God of whom the state motto speaks could
not. The distinction, it seems fair to say, is one that would not leap
readily to the minds of most observers.
similar.1 A person exceptionally well versed in the bible, on
the other hand, might be aware that the declaration about
trusting in God harkens back to the pre-Christian Old
Testament (see Psalms 56:11), while the declaration about all
things being possible with God is part of a statement that the
Christian New Testament attributes to Jesus in a context
unique to Christianity. See Matthew 19:26.
I do not quarrel with the proposition that a government
motto would be unconstitutional, under our current
understanding of the Establishment Clause, if a hypothetical
“reasonable observer” would take Ohio’s motto to be an
official endorsement of the Christian religion. I do not
understand, however, why the observer should be deemed to
be omniscient as well as reasonable. All that is suggested by
the adjective “reasonable,” I believe, is an observer who is an
“informed member of the community” and who is “aware of
the history and context of the community and forum” in which
the challenged expression appears. See Capitol Square
Review and Advisory Board v. Pinette, 515 U.S. at 780-81
(1995) (O’Connor, J., concurring) (emphasis supplied). Such
an observer should not, I think, be presumed to have an
encyclopedic knowledge of the Old and New Testaments.
“There is always someone who, with a particular quantum of
knowledge, reasonably might perceive a particular action as
an endorsement of religion,” as Justice O’Connor observed in
her Capitol Square opinion, id. at 780, but that exceptional
“someone” is not our reasonable observer.
If I am correct in my understanding of the test, I do not
believe that a reasonable observer in Ohio would find “With
God All Things Are Possible” significantly more problematic
than “In God we trust.” I confess that prior to this lawsuit I

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58 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
No. 98-4106
_________________
DISSENT
_________________
DAVID A. NELSON, Circuit Judge, dissenting. In 1956
Congress enacted a law, now codified at 36 U.S.C. § 302,
declaring the national motto to be “In God we trust.” Three
of our sister circuits have upheld the constitutionality of this
federal statute against claims that it violates the First
Amendment as a “law respecting an establishment of
religion. . . .” 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 conclusion reached
in these decisions.
In 1959 the Ohio legislature enacted a law adopting “With
God All Things Are Possible” as the official motto of the
state. See Ohio Rev. Code § 5.06. The Fourteenth
Amendment makes the Establishment Clause of the First
Amendment applicable to the states, but the Supreme Court
has told us that “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.” Marsh v. Chambers, 463 U.S. 783, 790-91
(1983). This being so, and assuming (as I do) that the
national motto is not unconstitutional, I am led to the question
whether there is such a pronounced difference between “In
God we trust” and “With God All Things Are Possible” that
adoption of the latter declaration as a motto must be held to
violate the Establishment Clause notwithstanding that
adoption of the former is constitutionally permissible.
To a reasonable observer who did not happen to be a
biblical scholar, it seems to me, “In God we trust” and “With
God All Things Are Possible” would appear remarkably
No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
7
- Matthew - One of the 12 Apostles and the traditionally
accepted author of the first Gospel of the New
Testament.
- Apostle - One of a group made up especially of the 12
disciples chosen by Jesus to preach the gospel.
- Gospel - One of the first four books of the New
Testament, describing the life, death, and resurrection of
Jesus and recording his teaching.
- Salvation - Deliverance from the power or penalty of sin;
redemption.
These definitions are important to an understanding of the
reasons for our decision.
b.
In Lynch v. Donnelly, 465 U.S. 668, 708 (1984), Justice
Brennan, in describing the nativity scene (the place of Jesus’
birth), a scene “rooted in a biblical account of Christ’s birth,”
said in his dissenting opinion:
It is the chief symbol of the characteristically Christian
belief that a divine Savior was brought into the world and
that the purpose of this miraculous birth was to
illuminate a path towards salvation and redemption.
In a footnote Justice Brennan further explained:
For Christians, of course, the essential message of the
nativity is that God became incarnate in the person of
Christ. But just as fundamental to Jewish thought is the
belief in the “non-incarnation of God, . . . [t]he God in
whom [Jews] believe, to whom [Jews] are pledged, does
not unite with human substance on earth.” . . . This
distinction, according to [Martin] Buber, “constitute[s]
the ultimate division between Judaism and Christianity.”

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8 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
No. 98-4106
465 U.S. at 708 n. 14 (internal citations omitted.)
As such, Jesus is unique among all figures of the Christian
bible.
D. The District Court Decision
1.
The decision of the district court, finding the words of the
motto compatible with the Establishment Clause, began by
decontextualizing the meaning of Jesus’ words:
While the words of the motto appear to have been taken
from the Christian New Testament, specifically Matthew
19:26, they are only part of a sentence in that passage and
they have been completely removed from the context in
which they were used.
Removed from their Christian New Testament context,
the words of the motto do not suggest a denominational
preference. They do not state a principle unique to
Christianity. They could be classified as generally
theistic. They are certainly compatible with all three of
the world’s major monotheistic religions: Judaism,
Christianity, and Islam. Statements similar to the words
of the motto are found in the Hebrew Bible as well as the
Qur’an, the sacred book of the Muslims.
20 F. Supp. 2d at 1178-79 (footnotes omitted). The court
went on to apply a subjective test for a reasonably informed
observer (to be discussed below) reading the words of the
motto:
Plaintiffs have presented no evidence that a reasonable
person who reads the words of the motto would
recognize them as the words of Jesus or understand them
as suggesting a denominational preference. Plaintiffs’
witness, Rabbi Harold Berman, of Columbus, Ohio,
senior Rabbi of the Congregation Tefereth Israel for
No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
57
temple. The God of Ohio’s biblical motto is the God of
particular Christian religious groups. The God of Ohio’s
biblical motto prefers one set of groups and one theology over
another, a God who excludes nonbelievers and many other
Christians from being “saved” and from entering “into the
kingdom of heaven.” In the biblical passage from which
Ohio’s motto takes its meaning, “treasure in heaven” and
God’s approval can only come if the believer will, in the
words of Jesus, “follow me” and “be saved.” Thus Ohio’s
motto is unconstitutional under the Establishment Clause
because it discriminates among religions and groups within
the Christian religion and encourages a particular Christian
doctrine. It violates the Establishment Clause because it does
not meet the test set out by Madison’s colleague, Elbridge
Gerry, expressed in the congressional debates on the
Establishment Clause “that no religious doctrine shall be
established by law,” — a major principle underlying the
“equal liberty of conscience” that the framers intended to
enact. 1 Annals of Congress 729.
For these reasons and the reasons set out in Judge Cohn’s
well-researched opinion for the Court, Ohio’s legislated motto
“With God, All Things Are Possible” must be declared in
violation of the Establishment Clause of the First Amendment
of the Constitution of the United States.

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56 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
No. 98-4106
primary nor the secondary meaning of the words of Ohio’s
biblical motto is true. Although many Christian believers
accept these verses as true, others do not believe that a
powerful, all-knowing personal God intervenes in daily
affairs. They do not believe literally in the type of
personalized salvation expressed by Matthew. In addition,
many skeptics and nonbelievers hold that this state imposed
biblical verse is untrue. For example, the Scientific American
recently reported a survey of the 1800 members of the
National Academy of Sciences which shows that over 90 per
cent of the Academy — created by Congress in 1863 — do
not believe in a personal God who intervenes in the affairs of
human beings. E. Larson and L. Whitham, “Scientists and
Religion in America,” Scientific American (Sept. 1999).
Third. Whatever may be the meaning of the phrase, “In
God We Trust” on the coin of the realm, it does not specify a
personal, all-powerful, all-knowing God which makes “all
things possible” by intervening in daily affairs. It does not
necessarily run contrary to the religious beliefs of any
particular Christian denomination or group or any other
religion. It may not be entirely consistent with the views of
the National Academy of Sciences and nonbelievers, but it is
not particularly offensive. The god in whom we “trust” could
be the god of Jefferson’s deism or even perhaps the laws of
science or the cosmology of Newton or Einstein. The phrase
is sufficiently vague that it does not define the particular god
of any religion. Neither does it have a secondary meaning, a
connotation, a context, that requires that all of the coin of the
realm on which the phrase appears be “give[n] to the poor” in
order for the “rich man to enter into the kingdom of God.”
The god of the silver coin and the dollar bill — “In Whom
We Trust” — may be merely mammon or may be drawn from
any of the gods in the world’s vast pantheon of divinity that
has accumulated from Greek times to the present. The god of
the coin of the realm is not by any means the “God” of
Matthew 19:21-26, who makes “all things possible,” a God
who disapproves of mammon, and who through his son, Jesus
Christ, reportedly threw the money changers out of the
No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
9
eighteen years, did not recognize the source of the motto
when he first became familiar with it. He was only able
to say that it “sounded vaguely familiar.” Defendants’
witness, Dr. David Belcastro, an associate professor of
religious studies at Capital University in Columbus,
Ohio, opined that the average college student would not
know the source of the motto. The Court concludes that
an objective and reasonably informed observer would not
perceive the motto as sectarian.
20 F. Supp. 2d at 1179.
The district court found as the definitive meaning of the
words of the motto:
It inculcates hope, makes Ohio unique, solemnizes
occasions, and acknowledges the humility that
government leaders frequently feel in grappling with
difficult public policy issues.
20 F. Supp. 2d at 1182 (quoting the Memorandum Contra
Plaintiffs’ Motion for Preliminary Injunction p. 21.)
Finally, apparently to assure the continued
decontextualization of the words of the motto, and to avoid
any possibility of attaching a religious meaning to them, the
district court, without explanation or elaboration,
“permanently enjoined [the state of Ohio] from attributing the
words of the motto to the text of the Christian New
Testament.” 20 F. Supp. 2d at 1185.

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10 Am. Civil Liberties Union of Ohio, et al.
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No. 98-4106
5There is no formal legislative history of the act.
2.
In sum, the district court’s decision is predicated on a
reading of the words of the motto out of context, viewing
them subjectively, and prohibiting the State of Ohio (and
presumably all of its officers and employees) from disclosing
the origin of the words of the motto.
E. Adoption Of The Motto
The words were adopted as the official state motto in 1959
by an act of the General Assembly of the State of Ohio, Ohio
Rev. Code § 506,5 following the suggestion of a 12 year old
Cincinnati school boy. In publicizing its adoption, and the
suggestion that October 1, the day the motto became official,
be designated as “motto day” in Ohio, the Secretary of State
said in a press release:
The boy started petitioning the Legislature when he was
9 years old, [sic] Jimmy chose a verse in the New
Testament, Matthew 19:26, “But Jesus beheld them and
said unto them, With men this is impossible; but with
God, all things are possible,” from which to draw the
official motto.
II. The Trial
The trial record reflects the testimony of experts in religion
regarding the meaning of the words of the motto, examples of
official use of the words of the motto, and miscellaneous
documentary evidence relating to citizens’ understanding of,
and attitudes regarding, the use of the words of the motto.
No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
55
Ohio’s biblical motto test tends to establish a “confessional
state” and is therefore invalid. Stein v. Plainwell Community
Schools, 822 f.2d 1406, 1408 (6th Cir. 1987).
Second. The words “With God, All Things Are Possible”
have meaning. The most obvious primary meaning of the
words is that a personal, all-knowing, all-powerful God
intervenes in the daily affairs of individuals and through this
miracle of supernatural intervention makes “all things
possible.” The secondary meaning, or the connotation of the
words, as Judge Cohn’s opinion for the Court makes clear,
comes from the context from which the words were taken.
Salvation, eternal life and “treasure in heaven” can only be
achieved in one way:
Jesus said unto him, if thou wilt be perfect, go and sell
that thou hast, and give to the poor, and thou shalt have
treasure in heaven; and come and follow me.
But when the young man heard that saying, he went
away sorrowful; for he had great possessions.
Then said Jesus unto his disciples, Verily I say unto
you, That a rich man shall hardly enter into the kingdom
of heaven.
And again I say unto you, It is easier for a camel to go
through the eye of a needle than for a rich man to enter
into the kingdom of God.
When his disciples heard it, they were exceedingly
amazed, saying, Who then can be saved?
But Jesus beheld them, and said unto them, With men
this is impossible; but with God all things are possible.
Matthew 19:21-26 (emphasis added).
Most of the world’s many religions and some Christian
sects, denominations and theologians believe that neither the

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54 Am. Civil Liberties Union of Ohio, et al.
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No. 98-4106
constitutional and it equals “With God, All Things Are
Possible” and hence the latter must also be constitutional.
This argument is misguided for a large number of reasons,
three of which I will discuss.
First. Ohio’s biblical motto does not meet the
Establishment Clause test of “an equal liberty of conscience
for all” set out by our court in an Establishment Clause case
decided more than a decade ago. It fails because it is an effort
of political and religious groups “to use the state in support of
their particular beliefs.” We stated this principle of “equal
liberty” as follows:
From the beginning of the colonial period to the
present, American churches have taken their various
religious differences seriously, and under the Free
Exercise and Establishment clauses taken together, we
have generally accepted and settled on an
accommodation. The concept of the equal liberty of
conscience is our guiding principle. In our national and
community life, we can never be sure whether our
particular religious, sectarian and moral convictions will
be in the majority or the minority. So as a diverse people
we have rejected the notion of a confessional state that
supports religion in favor of a neutral state designed to
foster the most extensive liberty of conscience
compatible with a similar or equal liberty for others. To
those who act or argue against this principle of equal
liberty of conscience on grounds that their duty is to use
the state in support of their particular beliefs, we answer
that we cannot expect others to accept an inferior liberty.
To those who say that the principle of equal liberty of
conscience has the effect of rejecting the absolute nature
of their religious beliefs, we reply that if any principle
can be agreed to, it can only be that of an equal liberty of
conscience for all.
No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
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11
A. Testimony
1.
Ronald Stone, a professor of Christian Ethics at Pittsburgh
Theological Seminary, was called as a witness by plaintiffs.
He testified as follows:
. . . it was known to be part of the discourse in Matthew
about the rich young ruler seeking salvation and asking
questions about salvation, and then there’s quite a
lengthy dialogue,
. . . .
. . . it is in all three of the synoptic gospels, Mark,
Matthew, and Luke, and present[s] a view of salvation
which denies that it’s possible to be saved by the good
works of human beings, but it’s only by the grace of God
that one may be saved, which is quite a foundational
document to protestant perspectives and protestant
theology,
. . . .
[Jesus is] addressing himself to the listeners who are
the disciples. One couldn’t exclude some other listeners,
but it’s not clear that there is a larger group beyond the
disciples. The question has been asked if it’s this
difficult for the rich who follow all the commandments,
how could anyone be saved? And then the verse that is
at question here, and Jesus said unto them, with men, it’s
impossible, but with God, all things are possible. It’s not
possible with men. Men cannot do it. Humans can’t do
it, we would say in the contemporary world, but God can.
(JA at 119-20, 122).

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6A lectionary is a book or list of lections to be read at church services
during the year. See The Revised Common Lectionary (Abingdon Press
1992). A lection is a reading from scripture which forms part of a church
service.
Matthew Peterson, associate pastor of a Presbyterian church
in Columbus, also called by plaintiffs, explained in response
to a question:
Q. Does the verse Matthew 19:26 and the other parallel
versions in Mark and Luke have continuing religious
significance to you as a Christian?
A. They do indeed. Specifically, because we are asked
to preach on them at least once every three years, but
we really preach on it somewhat more often than
that, through the Lectionary,6 but also it has
significance for me because it talks about one of the
foundational statements in the Christian church, not
just Presbyterian, but the Christian church on how is
a person saved. And since really the establishment
of churches in the middle east thousands of years
ago, one of the main questions we have had is: Can
a wealthy person be saved? What is the relationship
between the wealthy and the poor? What is our
obligation as wealthy people to poor people? And
this statement by Jesus helps us very fundamentally
with some of those questions, and we refer to it all
the time in the church, not merely once every three
years as it appears in the Lextionary [sic].
(JA at 175-76). Peterson went on to testify:
In context this has everything to do with salvation, and it
has very important relevance to Christian teachings in
context. It is an expression of the omnipotence of God in
context with regard specifically to how are we saved.
Through Christ, we are saved. Can a rich person be
saved? Well, with mortals, with individuals, this is
No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
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_______________________
CONCURRENCE
_______________________
MERRITT, Circuit Judge, concurring. The argument that
persuades Judge Nelson to dissent is not that the intent of the
framers of the Establishment Clause, or the evolving
principles of separation of church and state over the last 200
years, or the reasoning of a Supreme Court case supports the
constitutionality of Ohio’s official motto. No argument based
on principle or the constitutional policy underlying the
Establishment Clause is advanced. “With God, All Things
Are Possible” would be placed on public buildings, state
banners and public documents and publications without any
serious attempt to justify such state conduct on the basis of
principle.
The real reason behind this state action adopting a religious
verse from the New Testament seems purely political: To
please certain politically influential religious groups.
Madison, the draftsman of and the guiding hand behind the
First Amendment, was not wrong when he predicted that such
religious and political “coalitions” would develop in the new
Republic and that a fundamental law should be adopted to
deter government and religious groups from the “tendency to
a usurpation on one side or the other, or to a corrupting
coalition or alliance between them.” IX The Writings of
James Madison, 487 (G. Hunt ed. 1910).
The argument of the State of Ohio and the dissent is
simplistic: “With God, All Things Are Possible” is harmless
and means approximately the same thing as “In God We
Trust.” Since “in God We Trust” is so innocuous that it
appears on all of the coin of the realm — all of our paper
currency and silver — it must be constitutional and thus it
must also be constitutional to require Ohio’s official biblical
verse to be placed on buildings and official publications. The
argument is a simple syllogism: “In God We Trust” is

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The National Conference for Community Justice, You Are
Asked To Give Public Prayer In A Diverse Society -
Guidelines for Civic Occasions (New York, NY).
Accordingly the decision of the District Court is
REVERSED and this case is REMANDED for entry of a
permanent injunction enjoining the State of Ohio, its agents
and employees from using the words “With God All Things
Are Possible” as the official state motto.
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13
impossible, you cannot effect your own salvation, but
with God, with God’s grace, a mystery we are not fully
sure we understand, we can be saved. God’s love is
manifold everywhere.
(JA at 176-77). He then concluded:
The state is, if it desires to engage as it appears to do in
theological dialogue or discourse, is indeed a formidable
opponent. It has a breadth and a depth that I as an
individual clergymen do not have, and when they desire
to engage in the dialogue, a theological dialogue in
explaining what they mean by God, I believe that to be an
inappropriate moment for the discussion. The discussion
needs to be taking place in synagogues and churches and
mosques around the state. And even in the halls of
legislature, we can discuss the Lord’s intention as
individual people, but when the state adopts a motto
which necessitates theological dialogue to explain it, for
example, we mean it has to do with the omnipotence of
God, oh, no, what we mean it has to do with salvation,
says Legislator X. In that dialogue, in that debate, you
are absolutely having a theological discussion. And
when it becomes a part of a building or part of Capitol
Square, you are solidifying, quite literally, a statement, a
theological statement, about God. And certainly in my
view, it violates the First Amendment.
(JA at 177-78).
2.
David Belcastro, an associate professor of Religious
Studies at Capital University, was called as a witness by
defendants. He testified:
Q. We heard . . . that . . . these words . . . refer to
salvation. In your experience as a theologian . . .,
have you found that that is universally agreed upon?

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14 Am. Civil Liberties Union of Ohio, et al.
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A. No.
Q. What are other interpretations, . . . .
. . . .
A. The words “With God All Things Are Possible” are
not in reference to salvation. They have to do with
discipleship. The question of salvation is not raised
by Jesus, it is raised by the rich man in the story. He
is preoccupied with his religious standing. Having
accomplished a great deal in his life and kept the
law, he wonders what more he must do to be saved.
Jesus responds: Sell all that you have, give it to
the poor, and follow me, which the rich man is not
able to do.
The disciples take up the same question. Well, if
he can’t be saved, who can? And at this point, Jesus
says the phrase about the camel and the eye of the
needle, and then followed with “With God All
Things Are Possible.”
The important point here is what follows shortly
thereafter. Jesus, once again in the gospels, is
turning people around from their self-centered
interest, in this case personal salvation, to his call
which is to a radical discipleship, and the very
next thing that Jesus says is: If anyone wants to be
my disciple, he must deny himself, take up the
cross, and follow me, very similar to what he says
to the rich young ruler.
The issue for Matthew is not the protestant
doctrine of justification by faith, the issue for
Matthew is: Who is Jesus, and what is he asking
of those who follow him that are entering into this
great event that he’s anticipating?
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51
to religion. Finding a state’s official motto unconstitutional
is not something we, as judges, do lightly.
Certainly the citizens of Ohio ought to have the right to
collectively assert their spirit and aspirations in the form of a
motto without judicial interference – unless in doing so they
run afoul of the fundamental laws which govern all of us.
However, that is what they have done here. The State of Ohio
has not given equal treatment to all religions; it has not taken
an even-handed approach; it has not followed a course of
conduct that is non-proselytizing and non-sectarian. While
the words of the motto may not overtly favor Christianity, as
the words of Jesus they, at a minimum, demonstrate a
particular affinity toward Christianity in the eyes and ears of
a reasonable observer – a person knowledgeable about the
Christian Bible and particularly the New Testament. In
attempting to accomplish a non-secular result, the State of
Ohio has neutered the words of Jesus, a historical figure at
least.
In sum, by official action, the Ohio legislature, in following
the suggestion of the 12 year old boy who suggested the
words of Jesus as the official motto of the state, has given an
unconstitutional preference to Christianity. The State of Ohio
has effectively said to all who hear or see the words “With
God All Things Are Possible,” that Christianity is a preferred
religion to the people of Ohio.
We recognize that what is good social policy is not always
good law. Here, in our view, the two coincide. The National
Conference for Community Justice, in advising those who are
asked to give prayers in a public setting, says:
Prayer on behalf of the entire community should be
easily shared by listeners from different faiths and
traditions . . . [and use] forms and vocabulary that allow
persons of different faiths to give assent to what is said.

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50 Am. Civil Liberties Union of Ohio, et al.
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you that that’s our view of life here as we open court.”
Would that be legal?
ASSISTANT ATTORNEY GENERAL: I think if it
were conveyed in a ceremonial way like the U.S.
Supreme Court marshal’s statement, “God save the
United States and this Honorable Court” every time the
nine justices walk in. That’s okay.
THE COURT: If every time we open court here
because we believe it’s true we say, “We want to advise
you of our view that with God all things are possible,” is
that good or okay?
ASSISTANT ATTORNEY GENERAL: If it’s simply
a ceremonial process, I do, but the more you say it, the
more coercive it becomes.
THE COURT: Suppose we had said, “As Jesus Christ
said in Matthew 19, we believe ‘with God all things are
possible,’” that we want you to agree with that. That
would change it, wouldn’t it?
ASSISTANT ATTORNEY GENERAL: No, that’s not
acceptable, both because you’re referring to one
religion’s text and you’re urging the listeners to accept
that statement.
THE COURT: But if we’re quoting from Jesus Christ
and we don’t just tell you we’re quoting . . . what’s the
difference?
ASSISTANT ATTORNEY GENERAL: Because the
words “with God all things are possible” don’t convey a
one-religion-only message.
VII. Conclusion
This decision should not be viewed as hostile to religion,
but rather, an effort to assure government neutrality in relation
No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
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15
Q. Is it fair to say, Professor, that persons can walk
away from this phrase, either in isolation or within
its broader Biblical context, with different
meanings?
A. Yes.
Q. We heard testimony this morning this phrase “With
God All Things Are Possible”, or similar words,
appear in three of the four gospels. Are you familiar
with that?
A. Yes.
Q. Does the fact that words similar to the state motto
appear in those three books have particular
significance to you as a scholar in terms of their
authenticity, their ties to Jesus and their validity as
opposed to other one-time only words of the Bible?
A. No.
Q. Why not?
A. They are completely taken out of context. The
words “With God All Things Are Possible” are not
pivotal words of this particular part of the gospel
story; they are rather incidental in some ways, and
they have been lifted out of context. They do not
carry the meaning intended by either Matthew,
Mark, or Luke or the authors attributed to those
names, and so placed in another context, they are
open to endless interpretations.
(JA at 210-13).
Thomas D. Kasulis, a professor and the chair of the
Division of Comparative Studies at Ohio State University,
was called as a witness by defendants. After testifying on
direct examination that the words of the motto were

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16 Am. Civil Liberties Union of Ohio, et al.
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No. 98-4106
“exhortative as opposed to factual,” Kasulis testified in cross-
examination as follows:
Q. Now, when you say that the phrase “With God All
Things Are Possible” is exhortative as opposed to
factual, in context, Jesus is talking about “With God
All Things Are Possible” to mean that salvation is
possible; is he not?
A. He is saying that what the disciples seem to believe
was impossible is possible because of God.
Q. And what that is is salvation?
A. That is right, yes. What they were asking about, yes,
was salvation.
(JA at 242).
B. Use Of The Motto
1.
Since their adoption as the official motto in 1959, the words
of the motto have been included by successive Secretaries of
State on official documents surrounding the official seal,
configured as follows:
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49
20We are not unmindful of the amicus curiae briefs filed by The
American Center for Law & Justice, Mid-Atlantic and The National Legal
Foundation, which argue, inter alia, the historical acceptability of
government acknowledging God. However, their arguments are
dependent upon the decontextualization and sanitization of the words of
the motto from their origin, which, as we state in this opinion, is
unacceptable.
repeats word-for-word, Jesus' answer to his disciples'
questions about the ability to enter heaven, and thereby
achieve salvation. As such, to the ears of a reasonable
listener, the motto comes directly from the voice of Jesus. To
suppress the knowledge that these are the words of Jesus, and
to say that they describe something other than the
achievement of salvation, is to put a premium on ignorance.
Moreover, to enjoin state officials from explaining the origin
of the words is to perpetuate such ignorance.
In sum, fairly read and understood, the State of Ohio has
adopted a motto which crosses the line from evenhandedness
toward all religions, to a preference for Christianity, in the
form of Christian text. Thus, it is an endorsement of
Christianity by the State of Ohio.20
2.
Our conclusion as to the constitutionality of the words of
the motto is reinforced by a colloquy at oral argument with
the Assistant Attorney General representing defendants:
ASSISTANT ATTORNEY GENERAL: The State of
Ohio readily concedes that a motto such as “In Jesus
Christ We Trust” would be unconstitutional, and neither
the State nor the United States expressed favoritism for
one religion in that way.
THE COURT: . . . Suppose our Court every day told
the lawyers when they assembled, “Litigants, with faith
in God all things are possible, and we are so instructing

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Story could say: “it is impossible for those, who believe the truth of
Christianity, as a divine revelation, to doubt, that it is the especial duty of
government to foster, and encourage it among all the citizens and
subjects,” Joseph Story, Commentaries of the Constitution of the United
States 723 (Vol. III, 1833), or that a member of Congress could introduce
a bill saying, “Whereas, The people of the United States are a Christian
people, and firmly believe in God, the Father Almighty, Maker of heaven
and earth; and in Jesus Christ His only Son, our Lord...”, H.R. No. 5795
(1880), or that the Supreme Court of Oklahoma could say: “it is well
settled and understood that ours is a Christian Nation, holding the
Almighty God in dutiful reverence,” Oklahoma v. Williamson, 347 P.2d
204, 207 (1959).
18Separating the words of the motto from context would require
further inquiry into their meaning – which is not necessarily the meaning
attributed to them by defendant; an unwarranted task in light of our view
that they cannot be decontextualized.
19The profession of interpretation, which encompasses
“communication activities designed to improve understanding” at
historical, natural, and cultural sites, would also be impacted by such an
injunction. See generally,The National Association for Interpretation,
http://www.interpnet.com.
Moreover, when an attempt is made to give them a different
meaning, as can be seen from the testimony at trial, a
theological dispute is the inevitable result.18 Additionally, the
injunctive order blotting out their origin or source simply
complicates the problem of meaning. Is the injunction to
apply only to a written account of the origin of the words of
the motto or does it apply, for example, to security officers in
Capitol Square when queried by visitors as to the origin of the
words of the motto? And what of the Ohio State Historical
Society? Is it also barred from explaining the origin of the
words of the motto?19
The words of the motto are not to be decontextualized in
order to allow them to pass constitutional muster. Whether
their source is formally attributed or not to Matthew, they are
the words of Jesus. No amount of semantic legerdemain can
hide the fact that the official motto of the State of Ohio
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17
Other state officials, including the State Tax Commissioner,
have used the seal and the words of the motto, or sometimes
the words of the motto separately, on official forms and
documents. Officials in several Ohio counties use the words
of the motto on public documents. The motto also appears on
the Franklin County Courthouse as well as on that county’s
seal and flag.
A pamphlet, Ohio’s Citizens Digest, distributed by the
Secretary of State lists, among other things, Ohio’s symbols.
Regarding the words of the motto, it says:
7. The State’s Motto
In 1959, the Ohio legislature adopted the state’s motto
“With God all things are possible” (Matthew 19:26).
(JA at 306.)
A pamphlet, Ohio: The Buckeye State, distributed by The
Ohio Historical Society reads in part:
STATE MOTTO
In 1866, a bill passed in the Ohio legislature specifying
a motto to be incorporated into the Great Seal.
The motto, Imerium in Imperio, “an empire within an
empire.” But the motto was to be short-lived.
Great clamor arose over the pretentious feudal meaning
of the Latin words, and in 1867, the law authorizing it
was repealed. Ohio had no motto for the next 91 years.
In 1958, Jimmie Mastronardo, a sixth grade student in
Cincinnati, became concerned that Ohio was the only
state to have no motto. He found the perfect one in
Matthew 19:26: “With God all things are possible.” His
classmates and interested friends helped him circulate a

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petition to the legislature, and in 1959, the new motto
was adopted.
(JA at 363.)
The State of Ohio web site, http://www.state.oh.us,
s p e c i f i c a l l y w e b p a g e
www.oplin.lib.oh.us/products/ohiodefined/ohd-9.html,
exhibits the words of the motto as follows:
2.
While the mottos of other states use the word “God” in
various combinations, Ohio’s is the only state motto which
quotes directly from either the Old Testament or the New
Testament of the Christian Bible.
C. Citizen Attitudes
The documentary evidence relating to citizen attitudes at
trial was of two kinds. Defendants introduced into evidence
numerous letters and petitions in support of placing the words
of the motto in Capitol Square. Plaintiffs introduced into
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16This would, of course, include those of the Bahai Faith, Buddhists,
Hindus, Native Americans, and non-believers.
17We have come a long way from when it was acceptable that a
Jewish man could be compelled to appear in court on his Sabbath day,
Simon's Executors v. Gratz, XXIII Am. Dec. 35 (1831), or Justice Joseph
C. Reasons
1.
As we have established above, the district court could
justify the secular cast of the words of the motto and remove
them from the strictures of the Establishment Clause only by
decontextualizing and blotting out their origins. In the
context in which the words of the motto are found – as the
words of Jesus speaking of salvation – to a reasonable
observer, they must be seen as advancing, or at a minimum,
showing a “particular affinity” for Christianity. Simply put,
they are an endorsement of the Christian religion by the State
of Ohio. No other interpretation in the context of their
presence in the New Testament is possible.
We are satisfied that the words of the motto cannot be
treated as they were by the district court. When Jesus spoke
to his disciples he was explaining to them what was needed of
them to enter heaven and achieve salvation, a uniquely
Christian thought not shared by Jews and Moslems.16
We are also satisfied that the words of the motto, when
considered by a reasonable observer, run afoul of the second
prong of the Lemon test and they implicitly endorse
Christianity, as prohibited by Lynch supra. They are at one
with the stand alone creche in Allegheny, supra, and they do
not partake of the various forms of ceremonial deisms as
described in Marsh supra, and in the “In God We Trust” and
Pledge of Allegiance cases. We see little difference in
quoting Jesus’ view on salvation, from a reference to him in
prayer or his portrait on a school wall.17

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15An example of the ill result of decontextualizing a phrase is the
perverse meaning given to the statement, “The first thing we do, let’s kill
all the lawyers,” uttered by Dick the butcher in Shakespeare’s II Henry VI,
act. iv, scene 2. See Michael Franck The First Thing We Do; Let’s Kill
All The Lawyers, Mich. Bar J., Oct. 1981 at 725.
In Deal v. United States, 508 U.S. 129 (1993), Justice
Scalia, writing for the Supreme Court, in interpreting the
word “conviction” in 18 U.S.C. § 924(c)(1) said:
. . . [a] fundamental principle of statutory construction
(and, indeed, of language itself) [is] that the meaning of
a word cannot be determined in isolation, but must be
drawn from the context in which it is used.
508 U.S. at 132.
In Smith v. United States, 508 U.S. 223 (1993), the
Supreme Court dealt with the meaning of the words “use of
a firearm” in 18 U.S.C. § 924(c)(1). Justice O’Connor,
writing for the Court, observed, “Language, of course, cannot
be interpreted apart from context.” 508 U.S. at 229. Justice
Scalia, in his dissent, agreed with Justice O’Connor, repeating
what he stated in Deal, supra. 508 U.S. at 241.
Lastly, in Bailey v. United States, 516 U.S. 137 (1995),
again dealing with the meaning of the word “use” in 28
U.S.C. § 924(c)(1), Justice O’Connor writing for the Supreme
Court said: “[T]he meaning of statutory language, plain or
not, depends on context.” 516 U.S. at 145.15
We believe that we are required to view the words of the
motto as part of the text in which they are found and give to
them, as reasonable observers, the meaning intended by Jesus
when he addressed his disciples as reported by Matthew in the
New Testament of the Christian Bible.
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evidence the results of a survey measuring public awareness
of community and country issues -- two questions of which
were directed to the words of the motto. Ninety percent of
those surveyed did not know of the words of the motto and,
of the ten percent who were aware of the words of the motto,
only a quarter of those were aware of its exact words.
III. The Positions Of The Parties; The Court’s Task
A. Plaintiffs
Plaintiffs’ position is generally as follows.
The words of the motto or words of Jesus in the New
Testament, to a reasonably well informed observer, violates
the Establishment Clause of the First Amendment to the
Constitution. The use of the words of the motto has no
secular purpose, constitutes the advancement of the Christian
religion, and entangles government in religious affairs. See
Lemon v. Kurtzman, 403 U.S. 602, 612, 613 (1971).
The use of the words of the motto is not of long standing or
a ubiquitous practice, as is prayer at the opening of a
legislative session and, thus, the words of the motto have not
become part of the fabric of our society. See Marsh v.
Chambers, 463 U.S. 783 (1983).
The display of the words of Jesus in the New Testament as
a motto also constitutes an endorsement of the Christian
religion and is, therefore, unconstitutional under County of
Allegheny v. American Civil Liberties Union, 492 U.S. 573
(1989).

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B. Defendants
Defendants’ position is generally as follows.
1.
The text and history of the Establishment Clause of the
First Amendment, coupled with the Supreme Court’s
interpretations, allow for non-sectarian references to God in
government symbols and practice. The State of Ohio has not
adopted an “establishment of religion” simply by referring
respectfully to God. The United States motto, “In God We
Trust”, on coins and currency, 36 U.S.C. § 302, the use of the
words “under God” in the Pledge of Allegiance, 4 U.S.C. § 4,
the approval of legislative prayer, and the support of military
chaplains, Marsh, supra, are all examples of permitted,
generalized, and respectful references to a higher power. That
the words of the motto are drawn from the words of Jesus
makes no difference. Standing apart from their original
context in the New Testament, the words of the motto do not
convey a message of endorsement of any one religion.
Rather, the words of the motto inculcate hope and
acknowledge the humility of Ohio’s government and its
leaders. The motto’s generalized reference to God is entirely
consistent with the text, the historic understanding, and the
modern interpretation of the Establishment Clause. See
Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997), cert.
denied, 523 U.S. 1024 (1998).
2.
Defendants argue that the generalized nature of the words
of the motto allow a wide range of permissible readings and
accommodate a wide range of views. They contend that the
words of Jesus are not necessarily Christian and that the
sacred text can be sanitized to eliminate its religious content.
Defendants do not take issue with, nor so much as mention,
the injunctive limitations imposed by the district court as to
forbidding mention of the origins of the words of the motto.
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disciples when they heard Jesus say it to them. The State and
district judge’s meaning of Jesus’ words is different than their
meaning to a reader of the New Testament acquainted with its
text, and is also certainly different than the meaning a
lectionary would ascribe to them when it suggests they be
read as the text on a particular Sunday.
Lastly, the meaning of the words of the motto is certainly
different than the meaning that would be ascribed to them by
persons engaged in biblical discourse or debating a point of
scripture.
2.
The Supreme Court, more than once, has dealt with efforts
to read words or phrases out of context. The predicate ruling
for these efforts is Judge Learned Hand’s observation in
NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941)
that:
Words are not pebbles in alien juxtaposition; they have
only a communal existence; and not only does the
meaning of each interpenetrate the other, but all in their
aggregate take their purport from the setting in which
they are used, of which the relation between the speaker
and the hearer is perhaps the most important part.
In Moskal v. United States, 498 U.S. 103 (1990), the
question was the meaning of the words “false made” in an
anti-counterfeiting statute. Justice Marshall, writing for the
Supreme Court, observed that “the meaning of language is
inherently contextual,” 498 U.S. at 108. Justice Scalia, in his
dissent, quoted Justice Felix Frankfurter saying:
. . . as Justice Frankfurter more poetically put it: “[I]f a
word is obviously transplanted from another legal source,
whether common law or other legislation, it brings its
soil with it.”
498 U.S. at 121 (citations omitted).

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44 Am. Civil Liberties Union of Ohio, et al.
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robes; the church speaks through the Cross, the Crucifix,
the altar and shrine, and clerical raiment. Symbols of
State often convey political ideas just as religious
symbols come to convey theological ones. Associated
with many of these symbols are appropriate gestures of
acceptance or respect: a salute, a bowed or bared head, a
bended knee. A person gets from a symbol the meaning
he puts into it, and what is one man’s comfort and
inspiration is another’s jest and scorn.
319 U.S. at 632-33.
It is equally so with a state motto. The words of a motto are
a form of symbolic speech whether vocalized or read and,
therefore, take their meaning from the text in which they are
located, as we shall describe.
B. Decontextualization
1.
Defendants, at oral argument, defined the meaning of the
words of the motto as follows:
[they] endor[se] the notion that Ohio has a bright future,
that their citizens do, that people ought to be optimistic
and hopeful about the future.
This meaning is consistent with the meaning the district
court found in the words of the motto. See supra Part I.D.
This meaning, of course, can be justified only if the words are
removed from the context in which they are found – and were
found by the Cincinnati schoolboy when he first suggested
they stand as the State of Ohio’s official motto. See supra
Part I.E.
The meaning argued by the State, and accepted by the
district court, is significantly different than the meaning
intended by Jesus when, as reported by Matthew, he spoke to
his disciples, and certainly different than the meaning to the
No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
v. Capitol Square Review, et al.
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7One commentator has referred to the Supreme Court’s religious
freedom decisions as a “bewildering array.” See Catharine Cookson,
Foundation of Church State Relations, Focus on Law Studies Vol. XV,
No. 1, p. 8 (Div. for Public Educ. of the Am. Bar Ass’n). See also Robert
A. Sedler, Understanding the Establishment Clause: The Perspective of
Constitutional Litigation, 43 Wayne L. Rev. 1317 (1997) for a
comprehensive review of the Supreme Court decisions in this area.
C. The Court’s Task
Our task is to resolve these conflicting views in light of
applicable precedent and with an understanding of the
significance of the words of the motto. In this connection,
some understanding of the use of mottos generally in public
life is an important consideration to our decision. We shall
first discuss the precedents as we understand them, and then
go on to discuss the use of mottos generally as well as the
significance of the words of the motto. After that, we shall
explain the reasons for the result in this case.
IV. The Precedents
A. Preliminary
In looking at the precedents underlying our decision,
“[C]andor compels acknowledgment . . . that we can only
dimly perceive the lines of demarcation in this extraordinarily
sensitive area of constitutional law.” Lemon, 403 U.S. at 612.
We believe that our job is to cull from the plethora of cases
constituting Establishment Clause jurisprudence those which
best lead to a proper decision.7
In our discussion of the precedents, we shall confine
ourselves to the essential holding of the several cases which
we believe best lead to a proper decision. In doing so, we will
not explicate on the variety of concurring and dissenting
opinions displayed in each of these cases except where
absolutely necessary to understand the holding of a particular
decision. It is our intention to demonstrate an understanding

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22 Am. Civil Liberties Union of Ohio, et al.
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of, and appreciation for, the precedents which determine our
decision.
These cases allow us to set the base line which divides the
acceptable from the unacceptable in government activity,
recognizing that government may not intrude into activity
which is essentially religious, and therefore confined to
private action, as compared to secular activity which may
have a religious cast, but is action with which the government
may cooperate.
B. Supreme Court Precedents
The first of the modern Establishment Clause cases is
Everson v. Board of Education, 330 U.S. 1 (1947) (use of tax
money as part of a general program to provide transportation
for public and parochial students does not violate the
Establishment Clause). There, the Supreme Court said:
The “establishment of religion” clause of the First
Amendment means at least this: neither a state nor the
Federal Government can set up a church. Neither can
pass laws which aid one religion, aid all religions, or
prefer one religion over another. Neither can force nor
influence a person to go to or to remain away from
church against his will or force him to profess a belief or
disbelief in any religion. No person can be punished for
entertaining or professing religious beliefs or disbeliefs,
for church attendance or non-attendance. No tax in any
amount, large or small, can be levied to support any
religious activities or institutions, whatever they may be
called, or whatever form they may adopt to each or
practice religion. Neither a state nor the Federal
Government can, openly or secretly, participate in the
affairs of any religious organizations or groups and vice
versa. In the words of Jefferson, the clause against
establishment of religion by law was intended to erect “a
wall of separation between Church and State.”
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. . . .
. . . Although the origin of mottoes is somewhat murky,
their present role is well defined. They are most usefully
thought of as rousing and inspirational rallying cries. In
fact it is as battle cries that mottoes and slogans got their
start, and they continue to serve very effectively in that
capacity.
In Wooley v. Maynard, 430 U.S. 705 (1977), the Supreme
Court had occasion to discuss the meaning of a motto when
it considered the State of New Hampshire’s requirement that
non-commercial vehicles bear license plates embossed with
the state motto “Live Free or Die.” The Supreme Court
defined the issue as follows:
We are thus faced with the question of whether the
State may constitutionally require an individual to
participate in the dissemination of an ideological
message by displaying it . . .
430 U.S. at 713.
In West Virginia State Board of Education v. Barnette, 319
U.S. 624 (1943), the Supreme Court reversed its position in
Minnersville School District v. Gobitis, 310 U.S. 586 (1940),
and held that it was unconstitutional to compel school
children to participate in a compulsory flag salute and pledge
of allegiance ceremony. In commenting on the significance
of these activities as symbolic speech, the Supreme Court
said:
Symbolism is a primitive but effective way of
communicating ideas. The use of an emblem or flag to
symbolize some system, idea, institution, or personality,
is a short cut from mind to mind. Causes and nations,
political parties, lodges and ecclesiastical groups seek to
knit the loyalty of their followings to a flag or banner, a
color or design. The State announces rank, function, and
authority through crowns and maces, uniforms and black

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of religion. We need not drain the meaning from the
reference to reach this conclusion.
980 F.2d at 448 (internal citations omitted).
VI. Analysis
Before applying the precedents we have discussed to the
words of the motto directly, we believe it important to have
an understanding of the meaning and significance of mottos
generally, as well as the defendants’ (and the district court’s)
efforts to decontextualize the words of the motto to achieve
a secular meaning and, therefore, pass Establishment Clause
muster.
A. Mottos
A “motto”, as defined in Webster’s Third New International
Dictionary (1986), is a short suggestive expression of a
guiding principle.”
The American Heritage Dictionary of the English Language
1180 (3d ed. 1992) contains two definitions for motto: (1) “A
brief statement used to express a principle, a goal, or an ideal”
or (2) “a maxim as a guide to one’s conduct.”
Brian Burrell, in The Words We Live By: The Creeds,
Mottoes, and Pledges that Have Shaped America, 158-59
(The Free Press 1997), discusses mottos as follows:
. . . the practice of adopting brief sentiments or maxims
as something to go by is widespread. In the corporate
sphere, in academia, in associations and clubs, in the
military, and in the public forum, mottoes help people to
set their bearings. While only a small percentage of
people actively espouse mottoes, the majority are quick
to defend them, and are generally pleased to have them.
This is because mottoes and slogans are the most
succinct ready-made opinions . . . .
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8Justice O’Connor’s views in this area of Constitutional law (as well
as other areas in which the Supreme Court appear to be divided into two
camps) are considered important beyond those of any of the other
justices. See Lisa Langendorfer, Establishing a Pattern: An Analysis of
the Supreme Court’s Establishment Clause Jurisprudence, 33 U. Rich. L.
Rev. 705 (1999).
330 U.S. at 15-16 (quoting Reynolds v. United States, 98 U.S.
145, 164 (1878).
In Lemon v. Kurtzman, 403 U.S. 602 (1971) (school
financing program for non-public schools involved excessive
government entanglement and therefore violated
Establishment Clause) the Supreme Court synthesized its
jurisprudence since Everson, and enunciated what has come
to be known as the Lemon test:
Every analysis in this area must begin with consideration
of the administrative criteria developed by the Court over
many years. Three such tests may be gleaned from our
cases. First, the statute must have a secular legislative
purpose; second, its principle or primary effect must be
one that neither advances nor inhibits religion; [and]
finally, the statute must not foster “an excessive
entanglement with religion.”
403 U.S. at 612 (internal citations omitted). The Supreme
Court observed that:
Judicial caveats against entanglement must recognize that
the line of separation, far from being a “wall,” is a
blurred, indistinct, and variable barrier depending on all
the circumstances of a particular relationship.
403 U.S. at 614.
In 1984, in Lynch v. Donnelly, 465 U.S. 668 (1984)(creche
as part of municipal Christmas display acceptable under
Establishment Clause), Justice O’Connor,8 in a concurring

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24 Am. Civil Liberties Union of Ohio, et al.
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opinion, gave a new gloss to the Lemon test with what has
come to be known as the endorsement test when she said:
The Establishment Clause prohibits government from
making adherence to a religion relevant in any way to a
person’s standing in the political community.
Government can run afoul of that prohibition in two
principal ways. One is excessive entanglement with
religious institutions, which may interfere with the
independence of the institutions, give the institutions
access to government or governmental powers not fully
shared by nonadherents of the religion, and foster the
creation of political constituencies defined along
religious lines. The second and more direct infringement
is government endorsement or disapproval of religion.
Endorsement sends a message to nonadherents that they
are outsiders, not full members of the political
community, and an accompanying message to adherents
that they are insiders, favored members of the political
community. Disapproval sends the opposite message.
465 U.S. at 687-88 (internal citations omitted). Justice
O’Connor went on to explain:
The purpose prong of the Lemon test asks whether
government’s actual purpose is to endorse or disapprove
of religion. The effect prong asks whether, irrespective
of government’s actual purpose, the practice under
review in fact conveys a message of endorsement or
disapproval. An affirmative answer to either question
should render the challenged practice invalid.
465 U.S. at 690 (emphasis added).
In 1985, in Wallace v. Jaffree, 472 U.S. 38 (1985) (statute
authorizing one minute of silent school prayer held
unconstitutional), a plurality of the Supreme Court approved
the endorsement test when it said: “In applying the purpose
test, it is appropriate to ask ‘Whether government’s actual
purpose is to endorse or disapprove religion.’” Id. at 56
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41
further acknowledge the dependence of our people and
our Government upon the moral directions of the
Creator. At the same time it would serve to deny the
atheistic and materialistic concepts of communism with
its attendant subservience of the individual.
It goes on to say:
It should be pointed out that the adoption of this
legislation in no way runs contrary to the provisions of
the first amendment to the Constitution. This is not an
act establishing a religion or one interfering with the
“free exercise” of religion. A distinction must be made
between the existence of a religion as an institution and
a belief in the sovereignty of God. The phrase “under
God” recognizes only the guidance of God in our
national affairs. The Supreme Court has clearly indicated
that the references to the Almighty which run through our
laws, our public rituals, and our ceremonies in no way
flout the provisions of the first amendment.
H.R. No. 83-1693, 1954 U.S.C.C.A. 2339.
In Sherman v. Community Consolidated School District 21
of Wheeling Township, 980 F.2d 437 (7th Cir. 1992), the
Court of Appeals for the Seventh Circuit, setting aside the
voluntary nature of the exercise, turned back a challenge to
the pledge of allegiance by the father of a minor child that the
inclusion of the reference to God was a violation of the
Establishment Clause. The essence of the Seventh Circuit
decision is best expressed in the concurring opinion which
says:
The Pledge of Allegiance with all of its intended
meaning does not effectuate an establishment of religion.
If legislative prayer based upon the Judeo-Christian
tradition is permissible . . ., and a Christmas nativity
scene erected by a city government is permissible . . .,
then certainly the less specific reference to God in the
Pledge of Allegiance cannot amount to an establishment

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40 Am. Civil Liberties Union of Ohio, et al.
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. . . .
We need not engage in such empirical investigation
because “we do not ask whether there is any person who
could find an endorsement of religion, whether some
people may be offended by the display, or whether some
reasonable person might think [the State] endorses
religion.” “[T]he endorsement inquiry is not about the
perceptions of particular individuals or saving isolated
non-adherents from the discomfort of viewing symbols
of faith to which they do not subscribe.” It is instead an
objective inquiry that this court is fully equipped to
conduct with the facts at hand. After making that
inquiry, we find 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.
74 F.3d at 217 (internal citations omitted).
2. The Pledge Of Allegiance
The Pledge of Allegiance was initially given official
recognition in June 1942 by a joint resolution of Congress. It
was amended to include the words “one nation under God” by
a joint resolution approved June 14, 1954. 68 Stat. 249. The
legislative history of the joint resolution, while skirting close
to giving an impermissible religious cast to the inclusion,
states:
At this moment of our history the principles underlying
our American Government and the American way of life
are under attack by a system whose philosophy is at
direct odds with our own. Our American Government is
founded on the concept of the individuality and the
dignity of the human being. Underlying this concept is
the belief that the human person is important because he
was created by God and endowed by him with certain
inalienable rights which no civil authority may usurp.
The inclusion of God in our pledge therefore would
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(quoting Lynch at 690). In her concurring opinion, Justice
O’Connor refined the endorsement test, saying:
The endorsement test does not preclude government
from acknowledging religion or from taking religion into
account in making law and policy. It does preclude
government from conveying or attempting to convey a
message that religion or a particular religious belief is
favored or preferred. Such an endorsement infringes the
religious liberty of the nonadherent, for “[w]hen the
power, prestige and financial support of government is
placed behind a particular religious belief, the indirect
coercive pressure upon religious minorities to conform to
the prevailing officially approved religion is plain.” At
issue today is whether state moment of silence statutes in
general, and Alabama’s moment of silence statute in
particular, embody an impermissible endorsement of
prayer in public schools.
472 U.S. at 70 (internal citations omitted). Also in Wallace,
Justice O’Connor first articulated what has come to be known
as the reasonable observer test when she said:
The relevant issue is whether an objective observer,
acquainted with the text, legislative history, and
implementation of the statute, would perceive it is a state
endorsement . . . .
476 U.S. at 76.
Finally, in School District of Grand Rapids v. Ball, 473
U.S. 373 (1985) (shared and released time school programs
violates Establishment Clause), the Supreme Court brought
Justice O’Connor’s clarifications together when it said:
It follows that an important concern of the effects test
is whether the symbolic union of church and state
effected by the challenged governmental action is
sufficiently likely to be perceived by adherents of the
controlling denominations as an endorsement, and by the

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9This is the same square in which the state has installed the great seal
with the words of the motto. See supra Part I.C.
nonadherents as a disapproval, of their individual
religious choices.
473 U.S. at 390.
C. Reasonable Observer
As to the reasonable observer, Justice O’Connor clarified
the definition in her concurring opinion, with two other
justices joining, in Capitol Square Review & Advisory Board
v. Pinette, 515 U.S. 753 (1995) (State of Ohio did not violate
Establishment Clause in allowing the Ku Klux Klan to
display crosses in Capitol Square9 during Christmas season)
stating:
I therefore disagree that the endorsement test should
focus on the actual perception of individual observers,
who naturally have differing degrees of knowledge.
Under such an approach, a religious display is necessarily
precluded so long as some passersby would perceive a
governmental endorsement thereof. In my view,
however, the endorsement test creates a more collective
standard to gauge “the ‘objective’ meaning of the
[government’s] statement in the community.” In this
respect, the applicable observer is similar to the
“reasonable person” in tort law, who “is not to be
identified with any ordinary individual, who might
occasionally do unreasonable things,” but is “rather a
personification of a community ideal of reasonable
behavior, determined by the [collective] social
judgment.” Thus, “we do not ask whether there is any
person who could find an endorsement of religion,
whether some people may be offended by the display, or
whether some reasonable person might think [the State]
endorses religion.” Saying that the endorsement inquiry
should be conducted from the perspective of a
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39
It will be of great spiritual and psychological value to our
country to have a clearly designated national motto of
inspirational quality in plain, popularly accepted English.
H.R. No. 84-1959, 1956 U.S.C.C.A. 3720.
In Aronow v. United States, 432 F.2d 242 (9th Cir. 1970),
the Court of Appeals for the Ninth Circuit declined to order
a three-judge court, convened under 28 U.S.C. § 2286, to
consider a challenge to the national motto on the grounds that:
It is quite obvious that the national motto and the slogan
on coinage and currency “In God We Trust” has nothing
whatsoever to do with the establishment of religion. Its
use is of a patriotic or ceremonial character and bears no
true resemblance to a governmental sponsorship of a
religious exercise.
432 F.2d at 243. The Ninth Circuit went on to say:
While “ceremonial” and “patriotic” may not be
particularly apt words to describe the category of the
national motto, it is excluded from First Amendment
significance because the motto has no theological or
ritualistic impact. As stated by the Congressional report,
it has “spiritual and psychological value” and
“inspirational quality.”
432 F.2d at 243-44 (internal footnotes omitted).
In Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996),
the Court of Appeals for the Tenth Circuit found a challenge
to the national motto under the Establishment Clause without
merit, stating:
The reasonable observer, much like the reasonable
person of tort law, is the embodiment of a collective
standard and is thus “deemed aware of the history and
context of the community and forum in which the
religious display appears.”

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38 Am. Civil Liberties Union of Ohio, et al.
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13The Star Spangled Banner was designated as our National Anthem
in 1931. See 46 Stat. 1508; 36 U.S.C. § 170.
14The fourth stanza of the Star Spangled Banner is as follows:
‘O, 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.’
discrimination does not immunize such practices from
scrutiny under the Fourteenth Amendment.
492 U.S. at 630 (internal citations omitted and emphasis
added).
B. In God We Trust And The Pledge Of Allegiance
The Supreme Court, while justifying inclusion of God in
the Pledge of Allegiance and “In God We Trust,” an
adaptation of text found in Psalms, as our national motto, has
not yet decided a direct challenge to these practices.
However, the courts of appeals have dealt with both the
national motto and the pledge of allegiance. Legislative
prayer as constitutional has already been discussed. See supra
Part III.D.2.
1.
The national motto, “In God We Trust,” was enacted into
law in 1956. See 70 Stat. 732, P.L. 851, 1956. After
describing the history of its use in coinage, beginning with the
Act of March 3, 1865 (13 Stat. 518), and the adoption of the
Star Spangled Banner13 as our national anthem (and
particularly its fourth stanza),14 the legislative history
regarding our national motto reads:
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10Also illustrative of the application of the purpose prong is the
Supreme Court’s decision in Stone v. Graham, 449 U.S. 39 (1980)
(holding unconstitutional a Kentucky statute requiring the posting of the
Ten Commandments, purchased with private contributions, on the wall of
each public school as having no secular legislative purpose). Ten
Commandments jurisprudence will likely be revisited one day by the
Supreme Court given the efforts of lower courts to work around this
decision, and the contentiousness of the issue within communities. See
Suhres v. Board of Comm’s, 894 F. Supp. 927 (W.D. N.C. 1995), 55 F.
Supp. 2d 834 (W.D. N.C. 1999); Alabama Freethought Assn. v. Moore,
893 F. Supp. 1522 (N.D. Ala. 1995). But see Harvey v. Cobb County,
Georgia, 811 F. Supp. 669 (N.D. Ga. 1993), aff’d 15 F.3d 1097 (11th Cir.
1994). See also Marc D. Stern, American Jewish Congress, Comm'n on
Law and Social Action, The Ten Commandments: Innocent Display or
Weapons in a Religious War, Sept. 1999.
hypothetical observer who is presumed to possess a
certain level of information that all citizens might not
share neither chooses the perceptions of the majority over
those of a “reasonable non-adherent,” nor invites
disregard for the values the Establishment Clause was
intended to protect. It simply recognizes the fundamental
difficulty inherent in focusing on actual people: There is
always someone who, with a particular quantum of
knowledge, reasonably might perceive a particular action
as an endorsement of religion. A State has not made
religion relevant to standing in the political community
simply because a particular viewer of a display might feel
uncomfortable.
515 U.S. at 779-80 (internal citations omitted).
D. The Lemon Test
1.
We shall not discuss either the purpose or entanglement
prongs of the Lemon test. Illustrative of a state statute held
unconstitutional under the purpose prong is Edwards v.
Aguillard, 482 U.S. 578 (1987) (mandatory teaching of
evolution violates Establishment Clause).10 Illustrative of a

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Of particular interest to our decision is the fact that the Supreme
Court in Stone declined to accept the argument that the Ten
Commandments can be removed from their biblical setting and simply be
considered as the “basic tenets of a particular scheme of Western
philosophical thought,” as said by one of the justices of the Kentucky
Supreme Court which split equally on the lower court decision finding
their posting constitutional. See Stone v. Graham, 599 S.W.2d 157, 158
(Ky. 1980); see also, Harvey v. Cobb County, supra.
state statute held unconstitutional under the excessive
entanglement clause is Lemon, supra (state program
supplementing the salaries of parochial school teacher of
secular subjects violates Establishment Clause).
2.
Three cases in which the Supreme Court considered the
effects prong of Lemon focus the rule for our purposes. These
are: Marsh v. Chambers, 463 U.S. 783 (1983) (opening
legislative session with prayer does not violate Establishment
Clause), Lynch v. Donnelly, 465 U.S. 668 (1984) (creche as
part of Christmas display does not violation Establishment
Clause), and Allegheny v. American Civil Liberties Union,
492 U.S. 573 (1989) (stand-alone creche on stairs of public
building violates Establishment Clause; Hanukkah menorah
as part of Christmas display does not violate Establishment
Clause).
In Marsh, the Supreme Court observed 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.
From colonial times through the founding of the
Republic and ever since, the practice of legislative prayer
has coexisted with the principles of disestablishment and
religious freedom. In the very courtrooms in which the
United States District Judge and later three Circuit
Judges heard and decided this case, the proceedings
opened with an announcement that concluded, “God save
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465 U.S. at 716 (internal citations and footnote omitted).
In Allegheny, supra, Justice Blackmun, in a footnote to his
majority opinion, in explaining legislative prayer as
constitutional in Marsh, said:
The function and history of this form of ceremonial
deism suggest that “those practices are not understood as
conveying government approval of particular religious
beliefs.”
492 U.S. at 595-96 n. 46 (quoting Lynch at 717) (emphasis
added). Justice Blackmun again used the term in
distinguishing creche displays, references to God in the motto,
and in the pledge of allegiance. See 492 U.S. at 603.
Justice O’Connor, in her concurring opinion in Allegheny,
explained ceremonial deism as follows:
Justice Kennedy submits that the endorsement test is
inconsistent with our precedents and traditions because,
in his words, if it were “applied without artificial
exceptions for historical practice,” it would invalidate
many traditional practices recognizing the role of religion
in our society.” This criticism shortchanges both the
endorsement test itself and my explanation of the reason
why certain long standing government acknowledgments
of religion do not, under that test, convey a message of
endorsement. Practices such as legislative prayers or
opening Court sessions with “God save the United States
and this honorable Court” serve the secular purposes of
“solemnizing public occasions” and “expressing
confidence in the future” These examples of ceremonial
deism do not survive Establishment Clause scrutiny
simply by virtue of their historical longevity alone.
Historical acceptance of a practice does not in itself
validate that practice under the Establishment Clause if
the practice violates the values protected by that Clause,
just as historical acceptance of racial or gender based

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12See also, Rostow, Sutherland Investigate 'Religion and First
Amendment,' Brown Daily Herald, May 4, 1964, at 1,4.
with legislative sessions. These practices have come to be
discussed under the rubric “ceremonial deisms,” a term first
found in the literature in a reference to the 1962 Meiklejohn
Lecture at Brown University given by Dean Eugene Rostow
of Yale University Law School.12 Regrettably, the reference
is in a book review by Professor Arthur E. Sutherland of
Harvard University Law School and then only in a footnote.
See Sutherland Book Review, 40 Ind. L.J. 83, 86 n. 7 (1965).
Professor Sutherland said:
. . . constitutional tolerance of the opening prayers in the
Congress would require some other theory – possibly the
idea that another class of public activity, which the Dean
of the Yale Law School recently called “ceremonial
deism,” can be accepted as so conventional and
uncontroversial as to be constitutional.
Id. at 86 (quoting Dean Rostow from memory).
Justice Brennan, in his dissenting opinion in Lynch, supra,
brought the phrase into Supreme Court jurisprudence when he
said:
Finally, we have noted that government cannot be
completely prohibited from recognizing in its public
actions the religious beliefs and practices of the
American people as an aspect of our national history and
culture. While I remain uncertain about these questions,
I would suggest that such practices as the designation of
“In God We Trust” as our national motto, or the
references to God contained in the Pledge of Allegiance
to the flag 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.
No. 98-4106 Am. Civil Liberties Union of Ohio, et al.
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the United States and this Honorable Court.” The same
invocation occurs at all sessions of this Court.
463 U.S. at 786. It then went on to find the practice
constitutional stating:
In light of the unambiguous and unbroken history of
more than 200 years, there can be no doubt that the
practice of opening legislative sessions with prayer has
become part of the fabric of our society. 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
establishment; it is simply a tolerable acknowledgment of
beliefs widely held among the people of this country.
463 U.S. at 792.
In Lynch, the Supreme Court, in finding the display of a
creche as part of a business district Christmas display
compatible with the Establishment Clause, said that “[w]e are
unable to discern a greater aid to religion deriving from
inclusion of the creche than from those benefits and
endorsements previously held not violative of the
Establishment Clause.” 465 U.S. at 682.
Allegheny, with its bifurcated holding, is particularly
instructional. The creche scene stood on the grand staircase
of a courthouse alone and included as part of the display
words of the New Testament “Gloria in Excelcis Deo”
(“Glory to God in the Highest”). The Supreme Court said:
. . . the creche sits on the Grand Staircase, the “main” and
“most beautiful part” of the building that is the seat of
county government. No viewer could reasonably think
that it occupies this location without the support and
approval of the government. Thus, by permitting the
“display of the creche in this particular physical setting”
the county sends an unmistakable message that it

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30 Am. Civil Liberties Union of Ohio, et al.
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supports and promotes the Christian praise to God that is
the creche’s religious message.
492 U.S. at 599-600 (footnotes and internal citations omitted).
The menorah, however, was part of an annual Christmas
display outside a city-county building and stood next to a
Christmas tree. In finding that it passed constitutional muster
the Supreme Court said:
. . . it is not “sufficiently likely” that residents of
Pittsburgh will perceive the combined display of the tree,
the sign, and the menorah as an “endorsement” or
“disapproval . . . of their individual religious choices.”
While an adjudication of the display’s effect must taken
into account the perspective of one who is neither
Christian nor Jewish, as well as of those who adhere to
either of these religions, ibid., the constitutionality of its
effect must also be judged according to the standard of a
“reasonable observer.” . . . When measured against this
standard, the menorah need not be excluded from this
particular display. The Christmas tree alone in the
Pittsburgh location does not endorse Christian belief;
and, on the facts before us, the addition of the menorah
“cannot fairly be understood to” result in the
simultaneous endorsement of Christian and Jewish faiths.
On the contrary, for purposes of the Establishment
Clause, the city’s overall display must be understood as
conveying the city’s secular recognition of different
traditions for celebrating the winter-holiday season.
492 U.S. at 620 (footnotes and internal citations omitted).
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11See generally, Steven B. Epstein, Rethinking the Constitutionality
of Ceremonial Deism, 96 Colum. L. Rev. 2083 (1996).
In Stein v. Plainwell Community Schools, 822 F.2d 1406,
1410 (6th Cir. 1987), we dealt with the practice of the
delivery of invocation and benedictions at public high school
commencement ceremonies, holding invalid those that “are
framed and phrased so that they 'symbolically place the
government's seal of approval on one religious view'-- the
Christian view,” (citing Marsh v. Chambers, supra at 792.)
In Washegesic v. Bloomingdale Public Schools, 33 F.3d
679 (6th Cir. 1994), we held unconstitutional the placing of
a portrait of Jesus in the hallway of a public school. In so
doing we rejected the argument that the picture has meaning
to all religions and that it is not inherently a symbol of
Christianity. On the authority of Lemon, supra, and Marsh,
supra, we said:
But Christ is central only to Christianity, and his portrait
has a proselytizing, affirming effect that some non-
believers find deeply offensive. Though the portrait, like
school prayers and other sectarian religious rituals and
symbols, may seem “de minimis” to the great majority,
particularly those raised in the Christian faith and those
who do not care about religion, a few see it as a
governmental statement favoring one religious group and
downplaying others. It is the rights of these few that the
Establishment Clause protects in this case.
33 F.3d at 684.
V. Ceremonial Deism11
A. Preliminary
Practices closer to home which now require discussion are
our national motto, “In God We Trust,” the inclusion of God
into the pledge of allegiance, and again, prayer in conjunction

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test of Lemon and found each of its criteria: secular purpose,
primary effect, and entanglement, were present. We said:
Moreover, the content of the prayers delivered at the
school board meetings clearly went beyond what was
necessary to solemnize or bring a more businesslike
decorum to such meetings. The prayers frequently called
for divine assistance or affirmation, sometimes by using
veiled references to the Bible. In addition, many prayers
mentioned Jesus by name. The board could have used
the inspirational words of Abraham Lincoln or, as in fact
one speaker did, the speeches of Dr. Martin Luther King,
Jr. to achieve the same ends. Instead, the board relied
upon the intrinsically religious practice of prayer to
achieve its stated secular end.
171 F.3d at 384. We concluded:
. . . we do not mean to imply that religion must be kept
entirely out of the public school system. Certainly
students might themselves wish to pray during the time
they spend at school. It is only when the government,
through its school officials, chooses to introduce and
exhort religion in the school system that Establishment
Clause concerns take shape. That is what has happened
in the present case, with the school board’s involvement
in promoting prayer crossing the line of constitutional
infirmity.
171 F.3d at 385-86.
2.
We also have had occasion to deal with situations in which
public schools incorporated either a reference to Jesus, or the
person of Jesus particularly, into a school activity. Because
of the clearly sectarian nature of what was done, we have
found a violation of the Establishment Clause.
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E. Sixth Circuit Precedents
1.
As we read the Establishment Clause jurisprudence of this
circuit we find consistency with what we have said above.
In American Civil Liberties Union of Kentucky v. Wilkins,
895 F.2d 1098 (6th Cir. 1990) and Doe v. City of Clawson,
915 F.2d 244 (6th Cir. 1990), we found nativity scenes not
offensive to the Establishment Clause because the settings in
which they were displayed were much like the setting of the
Menorah in Allegheny, supra, i.e., part of a Christmas display.
In Americans United for Separation of Church and State v.
City of Grand Rapids, 980 F.2d 1538 (6th Cir. 1992), sitting
en banc, we held that a menorah display erected during the
Hanukkah season in a traditional public forum did not violate
the Establishment Clause because it could not be seen as an
endorsement of religion by a reasonable observer. The
decision followed and explicated on Justice O’Connor’s
definition of a reasonable observer:
In attempting to define the “reasonable observer,” we
must look to the guidelines established by precedents
both from this court and the Supreme Court. Justice
O’Connor, who first promulgated the endorsement test,
has emphasized that, when adopting the perspective of
the reasonable observer, courts must consider all of the
facts presented in each case. “Every government practice
must be judged in its unique circumstances to determine
whether it constitutes an endorsement or disapproval of
religion.” She repeated this warning in Allegheny, noting
that “the endorsement test depends on a sensitivity to the
unique circumstances and context of a particular
challenged practice . . . .”
However, Justice O’Connor has also recognized that
when a court analyzes a religious display, some facts
should receive greater consideration than others. For
example, certain religious practices that might otherwise

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be unconstitutional are valid if their “history and
ubiquity” would convince a reasonable observer that such
practices merely represent an “acknowledgment” of
religion. Thus, because of their “history and ubiquity,”
Justice O’Connor approved the constitutionality of
legislative prayers such as those in Marsh v. Chambers.
She has also stated that the Establishment Clause permits
“government declaration of Thanksgiving as a public
holiday, printing of ‘In God We Trust’ on coins, and
opening court sessions with ‘God save the United States
and this honorable court.’” She repeated this reasoning in
Allegheny:
It is the combination of the longstanding existence
of practices such as opening legislative sessions with
legislative prayers..., as well as their nonsectarian
nature, that lead me to the conclusion that those
particular practices, despite their religious roots, do
not convey a message of endorsement of particular
religious beliefs.
980 F.2d at 1544 (internal citations omitted).
In Chaudhuri v. State of Tennessee, 130 F.3d 232 (6th Cir.
1997), a college professor who followed the Hindu religion
did not prevail on his challenge to a moment of silence, or
prayer, at university functions because of the non-sectarian
nature of the occurrence. There we said:
Any prayer has a religious component, obviously, but
a single-minded focus on the religious aspects of
challenged activities – which activities, in an
Establishment Clause case, are religiously-oriented by
definition – would extirpate from public ceremonies all
vestiges of the religious acknowledgments that have been
customary at civic affairs in this country since well
before the founding of the Republic. The Establishment
Clause does not require – and our constitutional tradition
does not permit – such hostility toward religion. The
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people of the United States did not adopt the Bill of
Rights in order strip the public square of every last shred
of public piety.
Rejecting the label “nonsectarian,” Dr. Chaudhuri and
amicus curiae (the National Committee for Public
Education and Religious Liberty) persist in labeling the
prayers in question as “Christian.” The plaintiff and the
Committee imply that TSU’s purpose in allowing the
prayers was to advance the cause of Christianity. But
these prayers, lacking any explicit or implicit reference to
Jesus Christ, do not strike us as overtly Christian.
130 F.3d at 236 (internal citations omitted).
In Hawle v. City of Cleveland, 24 F.3d 814, (6th Cir. 1994),
we found that the lease of airport space for a chapel did not
violate the Establishment Clause because:
. . . the chapel serves the secular purpose of
accommodating the religious needs of travelers [sic] and
providing them with a place for rest and comfort.
Moreover, because a reasonable observer would not
conclude that the city endorses religion by allowing the
diocese to maintain the chapel, the chapel’s lease and its
authorizing ordinance do not constitute an endorsement
of religion, and thus their primary effect is one that
neither advances nor inhibits religion. We find, finally,
that the chapel’s lease and its authorizing ordinance also
do not foster an excessive government entanglement with
religion.
24 F.3d at 822.
Lastly, in our most recent exposition on the Establishment
Clause, Coles v. Cleveland Board of Education, 171 F.3d 369
(6th Cir. 1999), we found that the Cleveland Board of
Education’s practice of opening each meeting with a prayer
violated the Establishment Clause. In coming to this
conclusion, we analyzed the practice under the three prong

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