American Civil Liberties Union v. Capitol Square Review & Advisory Board

MERRITT, Circuit Judge,

dissenting.

At the outset, we should keep firmly in mind that for more than 50 years, Ohio has expressly informed its citizens in many ways — in the law itself and in its legislative history and in various state publications and on tax returns and other state official forms — that its motto recites the message of Jesus in Matthew 19:26. That is not, as the Court seems to suggest, a secret kept from the citizens of Ohio. The state is now proceeding to display Christ’s message of salvation in stone and bronze on state structures and in public squares. The religious motto may soon be made to appear on friezes above entrances of state buildings, just as Governor Voinovich proposed in 1996 as he was running for election to the Senate, and it may soon appear *313in legislative and judicial chambers as a symbol of Ohio as a religious state dedicated to Christ’s teachings.

Judge Nelson’s opinion for the Court approves Ohio’s adoption of Christ’s words. In doing so, the Court makes two basic mistakes in interpretation. First, through selective quotations of 18th and 19th Century “historical evidence,” the Court spends the first half of its analysis trying to show that the Establishment Clause means only that the government may not itself — in the words of Justice Storey taken from Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 49, 3 L.Ed. 650 (1815)—formally “create or continue” a state church and “compel citizens to worship” there “or to pay taxes” in support of the state church, as was the case with the Church of England and the Episcopal Church in 18th Century Virginia. Second, the Court spends the remaining half of its opinion trying to show that Christ’s message about God’s power and man’s salvation represents no more than an innocuous “secular aphorism” for “boosting morale, instilling confidence and optimism, and exhorting the listener or reader not to give up and to continue to strive.” We will take up the Court’s two main points in turn.

I.

The Establishment Clause forbids much more than the state church that the majority discusses at length. It also forbids prayer in public schools, prayer at graduation and .high school football games, religious creche sets on the public square, posting the Ten Commandments in public schools and other public places, using public funds to support religious schools, banning the teaching of evolution, requiring creationism to be taught, and other similar efforts to advance Christianity.1 For at least 30 years, the Supreme Court has made it clear that the Clause is much broader in scope than the majority of our Court believes:

The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be “no law respecting an establishment of religion.” A law may be one “respecting” the forbidden objective while falling short of its total realization. A law “respecting” the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion but nevertheless be one “respecting” that end in the sense of being a step that could lead to such establishment and hence offénd the First Amendment.

*314Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (emphasis in original).

Even viewing the majority’s state-church theory in its most favorable light, the historical evidence does not support the idea that forbidding a state church was the Founders’ only purpose. James Madison, the draftsman and the guiding hand behind the Establishment Clause, and upon whom the majority relies, was himself concerned that “religious and political coalitions” endorsing Christianity would develop in the new republic. IX The Writings of James Madison, 487 (G. Hunt ed.1910). He believed that the prohibitions contained in the Establishment Clause would be necessary to deter the government and religious sects from the “tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them.” Id. In the Congressional debates surrounding the passage of the Establishment Clause, Madison’s colleague Elbridge. Gerry proposed that the Clause would prohibit much more than a state church or compelled worship. According to Gerry, the Establishment Clause would ensure that “no religious doctrine [not simply a state church] shall be established by law.” 1 Annals of Cong. 729.

The majority’s lengthy discourse on the state-church view of the Establishment Clause — a view that even the majority opinion halfway admits is not the controlling law — has so clouded the majority’s judgment that it is unable to properly apply the endorsement test. Although a three-member minority of the current Supreme Court appears to subscribe to some version of Judge Nelson’s narrow historical view of the Establishment Clause, see Santa Fe Independent School District v. Doe, 530 U.S. at 320, 120 S.Ct. 2266 (Rehnquist, C.J., dissenting, joined by Scalia and Thomas, JJ.),2 this is not the Court’s majority position. The six other justices have adopted the position that “government speech endorsing religion” is also forbidden. Id. at 310, 120 S.Ct. 2266. In Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), the Court struck down an Alabama statute that required a moment of “prayer and meditation” for students in the state school system. In her concurrence, Justice O’Connor suggested that appropriate test for such questions was “whether government’s purpose is to endorse religion and whether the statute actually conveys a message of endorsement.” Id. at 69, 105 S.Ct. 2479 (O’Connor, J., concurring). This standard was later adopted by the six-justice majority in Santa Fe Independent School District, 530 U.S. at 312, 120 S.Ct. 2266, which set forth the “endorsement of religion” test that controls the case now before our court. This test gives teeth to the Supreme Court’s general directive that we should be particularly wary of government sponsored religious expression:

Whether the key word is “endorsement,” “favoritism,” or “promotion,” the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious beliefs or from “making adherence to a religion relevant in any way to a person’s standing in the political community.”

County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 593-94, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (citing Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring)).

II.

In response to our dissenting opinion, the majority and Judge Clay in his sepa*315rate concurrence have simply stated again, but more vehemently, that Jesus’ words to his disciples, “with God, all things are possible,” are in no way different from “In God We Trust” found on the coin of the realm. They harp on this argument over and over.

Although I do not concede that the national motto passes the non-endorsement test of the Establishment Clause, I should emphasize that there is a vast constitutional difference between the two. While the phrase “In God We Trust” refers broadly to a shared human yearning for the spiritual, the Ohio motto conveys a sectarian view of God as interventionist, active, and omnipotent. The national motto does not specify a personal, all-powerful, all-knowing God who makes “all things possible” by intervening in daily affairs. The God in whom we trust could be the god of Jefferson’s deism or even the laws of science or the cosmology of Newton or Einstein. It does not define the god of any religion. The god of the silver coin and the dollar bill — “In Whom We Trust” — may be drawn from any of the gods of the world’s vast pantheon of divinity that has accumulated from Greek times to the present.

The majority accuses us of “draw[ing][an] exquisitely fine distinction[ ]” between the national motto and the Ohio motto. The distinction is neither fine nor exquisite. It is crucial. It is a perilous step between these two mottoes — from an anomalous adoption of a carefully drawn non-sectarian statement of spirituality and religiosity to the adoption by a government of an explicitly sectarian teaching of faith. The majority would— wittingly or not — allow the national motto to become a shield for a vast array of government-sponsored religious activity. If the Ohio motto stands because it is analogous to the national motto, then what is to stop our governments from adopting any other sectarian teachings or practices that are seemingly universal in nature, or whose sectarian origins can be obscured?

Judge Graham in the court below enjoined the State of Ohio from citing Matthew 19:26, attributing the quote to Jesus, or making any reference to the undeniable religious origins of the motto. The need to enjoin any reference to the biblical source of the Ohio motto demonstrates the vast difference between it and the national motto. It is tantamount to an admission of unconstitutionality. Noting that this aspect of the case was not appealed, the majority never confronts the fact that the injunction is a tacit recognition of the Christian nature of the phrase. Although we are not told what constitutional provisions require or permit such an injunction, the thought seems to be that the religious motive and content of the Ohio motto can somehow be obliterated by removing the quotation marks. This notion is as offensive as it is mistaken. As demonstrated by Matthew Peterson, a Presbyterian pastor and one of the plaintiffs in this case, Ohio is debasing a deeply held Christian message into greeting card banality. Suppressing Christ as the witness to God’s efficacy in this world and yet enshrining his words in the state motto is spiritual plagiarism for the sake of a better-looking tax form.

Ignoring the identity of the speaker and focusing on the content of the message, Judge Nelson’s opinion for the Court completely overlooks the fact that Ohio’s biblical motto describes how to achieve salvation through God’s grace. Even if we remove the quotation from its immediate biblical setting, eliminating the rich man story about salvation and the prospect of entering the kingdom of heaven,3 the most *316obvious primary, and literal, 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” — including the Christian rewards of salvation, rebirth and eternal life in heaven. Although some Christian sects take this view of God’s power as literally true, many other religious people do not. In addition, many skeptics and nonbelievers do not agree that God’s power to intervene is so great that He makes “all things possible.” The Scientific American has reported a survey of the 1800 members of the National Academy of Sciences which shows that over 90% of the Academy — -created by Congress in 1863— does 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).

Despite the insistence of the majority to the contrary, the motto does more than pay “lip service” to the power of God. It does more than “irritate” people. It has the capacity to alienate citizens of Ohio, to create in-groups and out-groups on the basis of their identification with and knowledge of the words of Jesus as contained in the New Testament. That the rabbi, as a non-Christian, could not identify the exact origins of the motto is an irony lost on the majority, but it is an exclusion all non-Christians will come to share whenever they walk past the inscription on Capitol Square and wherever else it will now appear.

Instead of analyzing the meaning of the motto in terms of God’s power and salvation through grace, the majority seeks to justify the motto as secular on the grounds that Jesus “was not saying anything new” but “was simply using a proverbial phrase that was commonly known and accepted as true” by Jews of the time. In support of the secular nature of the motto, the majority then makes the same point that Pennsylvania made in trying to justify the reading of daily Bible verses in school in Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). Pennsylvania said the Bible reading was secular because it “instill[ed] morality.” Likewise, Judge Nelson’s opinion justifies Ohio’s use of Jesus’ words because “the Bible has become a moral as well as religious source of insights in our Western culture.” The Supreme Court has expressly rejected this justification under the Establishment Clause. When Pennsylvania asserted that its secular purpose in requiring ten Bible verses to be read to begin the school day was to “instill morality,” the Supreme Court held that this justification was simply a pretext for endorsing Christianity. Id. at 223-25, 83 S.Ct. 1560. “Readings from the speeches and messages of great Americans, for example, or from the documents of our heritage of liberty” would serve the purpose, and would be regarded as “unsatisfactory or inadequate only to the extent that the present activities do in fact serve religious goals,” Id. at 280, 83 S.Ct. 1560 (Brennan, J., concurring). Likewise, in the case of the Ohio motto, any number of other phrases exhorting Ohioans to greater achievements would serve the same purpose^ — except they would contain no Christian message.

Finally, in one of the most remarkably creative passages in all Establishment Clause jurisprudence, the majority explicitly relies on the canon of construction noscitur a sociis (“it is known from its associates” Black’s Law Dictionary 1060 *317(6th ed.1990)). The Court advises us that the state motto is codified in § 5.06 of the Ohio Rev. Code and is “surrounded” by eleven other code sections in which the state adopts as its own various things like the buckeye as the “official tree of this state,” the “white tailed deer as the official animal,” tomato juice as the “official beverage” and so on. The majority then infers that Christ’s message “with God, all things are possible” has no more religious content than the buckeye, tomato juice or the white tailed deer.

A much more credible interpretation of Ohio’s motto is the one given by the defendant Attorney General of Ohio in her letter to constituents of July 26, 2000, written during her reelection campaign. In that letter Attorney General Montgomery explains that the motto is a meaningful symbol of “faith” and says:

America was founded on faith.
Our great nation is guided by our religious beliefs sustained and strengthened by our spiritual values....
The destruction of our state motto is part of a carefully constructed plan to strip America of every last symbol of our faith.

Letter from Betty Montgomery, Ohio Attorney General, to constituents of July 26, 2000 (emphasis added).

To say that Christ’s words “with God, all things are possible” is merely a symbol of hope, inspiration and good luck, like the buckeye, is as plausible as saying that the Cross, the symbol of Christ’s death and resurrection to save mankind, is not uniquely Christian because crucifixion was a common means of execution in Rome or that the Star of David is not uniquely Jewish because the hexagram also appeared in Islamic art during the Middle Ages. The majority’s simple-minded, secular explanation of Christ’s message may upset many devout Christians who take the words seriously and understand their deeper meaning. It is also in direct conflict with the Ohio Attorney General’s own view of the meaning of the motto.

The Ohio motto is not inscribed in a vacuum. Messages carry different meanings depending on the identities of speaker and listener, the setting in which words are spoken, and whether they are accompanied or alone. As we have recognized, “both the content and the context of the religious display must be analyzed, and the constitutionality of a display’s effect must be judged, according to the standard of a reasonable observer.” Kunselman v. Western Reserve Local Sch. Dist. Bd. of Educ., 70 F.3d 931, 932 (6th Cir.1995) (holding that the school mascot “Blue Devils” did not violate the Establishment Clause). As Judge Avern Cohn pointed out in his earlier panel opinion in this case, courts have many times “dealt with efforts to read words and phrases out of context.” ACLU v. Capitol Square Review and Advisory Board, 210 F.3d 703, 724 (6th Cir.2000). He then quoted Judge Learned Hand:

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.

Id. (quoting NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir.1941)).

This is a fact-intensive inquiry for which the Supreme Court has mapped broad contours to guide our analysis. In deciding questions of endorsement, the physical space of the message is relevant: religious displays in government areas heighten establishment concerns, see County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 626-27, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (“The display of religious symbols in public areas of core government buildings runs a special risk of ‘mak[ing] religion relevant, in reality or public perception, to status in the political community.’ ”) (O’Connor, J., concurring) *318(citation omitted), whereas traditionally public fora remove the State as speaker, see Capitol Square Review v. Pinette, 515 U.S. 753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (allowing a Ku Klux Klan cross, with a disclaimer, on a plaza traditionally open as a public forum). The presence of an accompanying message can be relevant, see Allegheny County, 492 U.S. at 573, 109 S.Ct. 3086 (allowing a combined holiday display of a Chanukah menorah, a Christmas tree, and a sign saluting liberty during winter holidays but rejecting as unconstitutional a creche standing alone in the Allegheny county courthouse), as can the availability of secular alternatives, see id. at 618 n. 67, 109 S.Ct. 3086 (Blackmun, J.). And the history and ubiquity of a traditional sentiment with some religions overtones can be relevant — as seen on every dollar bill, heard before every legislative session, spoken in every pledge of allegiance — neutralizing what would otherwise be expressions of piety.

Taking each of these considerations in turn, we can see how the context of the Ohio motto enhances rather than reduces its Christian content. The motto is to be placed on government buildings and forms. It is to be displayed perpetually and alone. And it does not enjoy pervasive secular use. Jesus is describing His own God, His Father — not Zeus, nor a Muslim, Hindu, Buddhist, Roman or deist god. The sum of these factors has before led us to find a violation of the Establishment Clause. In Washegesic v. Bloomingdale Pub. School, we ordered the removal of a portrait of Jesus Christ that had been hanging alone in the hallway of the Bloomingdale Secondary School for the last thirty years. There, we noted

The defendants argue that the picture has meaning to all religions and that it is not inherently a symbol of Christianity. The case would be different if the school had placed representative symbols of many of the world’s great religions on a common wall. 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.

Washegesic v. Bloomingdale Pub. Schools, 33 F.3d 679, 684 (6th Cir.1994) cert. denied, 514 U.S. 1095, 115 S.Ct. 1822, 131 L.Ed.2d 744 (1995).

Whether by invoking his words or his image, the State should not align itself with Jesus Christ. Yet that is precisely what Ohio has done, in big bronze letters in the Capitol Square. The majority would dismiss this encroachment on religious freedom as merely an innocuous example of civic piety. Nearly two centuries ago, however, James Madison condemned such establishment by increments, observing about one such relatively minor example: “The object of this establishment is seducing; the motive to it is laudable. But is it not safer to adhere to a right principle, and trust to its consequences, than confide in the reasoning however specious in favor of a wrong one.” Elizabeth Fleet, Madison’s Detached Memoranda, 3 Wm. and Mary Q. 534, 555-562 (1946) (cited in Walz v. Tax Comm’n of New York, 397 U.S. 664, 684 n. 5, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)). Today, our Court has been seduced into establishment by increments. Tomorrow will bring another innocuous expression of “civic piety” from Christianity in another city or state on another public building in another public square. Turning Christ’s unique message of salvation through grace into a public bumper sticker is not only deeply offensive to many devout Christians. It says to others that their beliefs are inferior and hence turns Christian doctrine into an offi*319cial state advertising label that discriminates against nonbelievers and other religions that do not accept Christ as their savior.

. See Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (prayer in schools); Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (forbidding school-initiated prayer at graduations); Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (same at high school football games); County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (displaying religious creche sets on a public square); Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (posting the Ten Commandments in public schools); Committee For Public Ed. and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973) (using public funds to support religious schools); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (banning the teaching of evolution in state-funded academic institutions); Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (requiring creationism in public school curricula). See also, e.g., Larkin v. Grendel's Den, 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982) (striking down a Massachusetts statute granting churches veto rights over applications for liquor licenses within 500 feet of the church); Texas Monthly v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989) (holding that a tax exemption granted only to religious periodicals violates the Establishment Clause).

. In addition, it is important to note that the minority view of the Establishment Clause is still broader than Judge Nelson's narrow perspective, in that it recognizes that the Establishment Clause was "also designed to stop the Federal Government from asserting a preference for one religious denomination or sect over others.'' Wallace, 472 U.S. at 113, 105 S.Ct. 2479 (Rehnquist, J., dissenting).

. 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.
*316And 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 ere 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 (King James version) (emphasis added).