dissenting.
I join the dissent of Judge Mlerritt, but write separately to express my personal belief that Ohio’s motto trivializes the very faith it purports to strengthen.
The Supreme Court has consistently described the Establishment Clause as forbidding not only state action motivated by the desire to advance religion, but also that intended to “disapprove,” “inhibit,” or evince “hostility” toward religion. See Edwards v. Aguillard, 482 U.S. 578, 616, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (Scalia, J., dissenting). I believe that successive attempts at public piety make true religion ring more and more hollow. By adding to the spate of state-sponsored religious imagery, I believe that this motto makes Jesus’ words a mere symbolic commodity, and inhibits religion as much as advances it.
Justice Kennedy noted in 1992 that the First Amendment’s Religion Clauses ensure religion’s freedom from government interference as much as they command the state not to bolster a particular faith. “The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference.” Lee v. Weisman, 505 U.S. 577, 589, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). James Madison knew this, too. He did not think the Establishment Clause should be included among the Bill of Rights purely as a protective measure for the minority. Rather, “experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.” Id. (citing James Madison, Memorial and Remonstrance Against Religious Assessments (1785), in 8 Papers of James Madison 301 (W. Rachal, R. Rutland, B. Ripel, & F. Teute eds., 1973)).
When Jesus’ key to eternal salvation is lumped in the Ohio statutes with the Buckeye tree and tomato juice, the signal sent is that religion is no more important than those two nice but ultimately inconsequential things. To many, religion is much more important, perhaps the most important force in their lives. I fear that Ohio has given Christianity a crutch it is better left without. I respectfully dissent.