• Professor David Mayer is the faculty advisor to the Federalist Society.

        U.S. District Judge James L. Graham has authored many wise, well-reasoned judicial opinions.  Unfortunately, his recent opinion in ACLU v. Capital Square Review and Advisory Board is not one of them.  Judge Graham's decision upholding "With God All Things Are Possible" as the official motto of the state of Ohio errs in its application of relevant Supreme Court recedents and demonstrates, sadly, an insensitivity to religious freedom in the true sense.
        Judge Graham acknowledged that the words of the motto are taken verbatim from the Christian New Testament, specifically Matthew 19:26 ("Jesus said to them, `With men this is impossible, but with God all things are possible'").  Indeed, his order enjoined the State from citing that Scripture as the source of the motto.  Nevertheless, he held that Ohio government's use of the motto on the Statehouse plaza, as well as on official documents and other state publications, is not an endorsement of religion forbidden by the Establishment clause of the First Amendment.
        Relying on the testimony of one of the State's witnesses, Dr. David Belcastro, a professor of religious studies at Capital University, who opined that "the average college student would not know the source of the motto," Judge Graham concluded that "an objective and reasonably informed observer would not perceive the motto as sectarian."  The constitutionality of the motto ought not depend so heavily on the ignorance of the average citizen.  It is an undeniable fact that the motto is a direct quote from Jesus's words as reported in the New Testament.
        "Removed from their Christian New Testament context, the words of the motto do not suggest a denominational preference," Judge Graham added, "They do not state a principle unique to Christianity" but are "certainly compatible with all three of the world's major monotheistic religions."  If Judge Graham is right, this observation provides all the more reason why the motto is unconstitutional.  By adopting these words as its official motto, the state of Ohio is endorsing not only monotheism but a particular form of theism: belief in a God who can act supernaturally, performing miracles that violate the laws of nature, a God to whom "all things are possible."
        The plain language of the motto itself distinguishes it from the more benign words of the national motto, "In God We Trust," or other state mottos with some religious content, such as South Dakota's "Under God the People Rule," Arizona's "Ditat Deus" (God Enriches), or Colorado's "Nil Sine Numine" (Nothing Without Providence).  (In light of the last two examples, perhaps Judge Graham's order should have required Ohio to use the motto only in Latin, to ensure that Ohioans remain blissfully ignorant of its sectarian origins.)
        Ohio's motto is unique among all state mottos in making a specific assertion not only that God exists but that God has particular attributes.  Thus, the motto does far more than merely "acknowledge the religious heritage of our nation," as Judge Graham asserted.  The motto is clearly unconstitutional under both the major tests the Supreme Court has used in establishment clause cases in recent years.  Judge Graham erred in his application of both tests.
        Under the rule of Lemon v. Kurtzman, the Ohio motto is fatally flawed in at least two respects.  First, it clearly lacks a "secular legislative purpose"; its purpose is to endorse religion, as the history of the motto and its derivation from the New Testament clearly show.  The motto was adopted by the state legislature in 1959, at the suggestion of a twelve-year-old Cincinnati boy who chose the words from Matthew 19:26.  Perhaps because of Cold War anxieties, the decade of the1950s was one in which legislators sought to demonstrate not only their patriotism but also their religious--and specifically, their Christian--fervor, to distinguish themselves from "godless" Communists.
        Ignoring this clear history, Judge Graham accepted unquestioningly the State's ridiculous assertion that the motto has a valid secular purpose: "It inculcates hope, makes Ohio unique, solemnizes occasions, and acknowledges the humility that government leaders frequently feel in grappling with difficult policy issues," the State argued.  If so, it does this by sanctioning belief in a monotheistic, supernatural, and Christian God--undoubtedly an impermissible purpose of endorsing religion.
        Second, the motto's "principal or primary effect" is to advance religion.  Judge Graham denied this, simply pointing to the "long tradition of government acknowledgment of religion in mottoes, oaths, and anthems," but he failed to consider the clear evidence of the motto's religious effects which he himself acknowledged earlier in his opinion: Governor Voinovich recommended engraving the motto on the Statehouse after he returned from a trip to India where he saw the motto "Government Work Is God's Work" inscribed on a public building.  A state government official using the imprimatur of his office to endorse his own religious beliefs is the very act that the religious-freedom provisions of both the United State
Constitution and the Ohio Constitution were designed to prohibit.
        The Ohio motto also violates another test, suggested by Justice Sandra Day O'Connor in recent years as an alternative to the traditional analysis.  Her test would prohibit government actions reasonably perceived as "endorsement" of religion.  Placement of an overtly Christian motto on the Statehouse would, in Justice O'Connor's words, "send a message to nonadherents that they are outsiders, not full members of the political community."  Judge Graham's simplistic assertion that Ohio's motto passes Justice O'Connor's endorsement test because it's a mere governmental "acknowledgment" of religion, fails to take O'Connor's test seriously and actually apply it.
        Near the end of his opinion, Judge Graham digressed into a discussion of Thomas Jefferson's famous characterization of the First Amendment religion clause as "a wall of separation between church and state."  He dismissed Jefferson's understanding as unathoritative, arguing that Jefferson "had no role in the drafting of the Constitution or the Bill of Rights," an argument which is somewhat of a red herring.  Jefferson indeed played a crucial role in the addition of the Bill of Rights to the Constitution (see Chapter Six of my book, The Constitutional Thought of Thomas Jefferson), and his views on religious freedom were shared with his good friend and collaborator, James Madison, whose authority as author of the First Amendment cannot be denied.  Indeed, Madison late in his life wrote a series of essays, called the "Detached Memoranda," in which he questioned the constitutionality of Congress's practice of beginning each session with a prayer--a practice which Judge Graham called as "the most compelling evidence of the meaning of the Establishment Clause."  Why should the unconstitutional acts of the First Federal Congress be regarded as "more compelling" evidence of original intent than James Madison's mature views of the First Amendment's meaning?
        Sadly, Judge Graham's anti-Jefferson diatribe reveals his own religious biases, as does his conclusion that "this nation was founded on transcendent values which flow from a belief in a Supreme Being."  Contrary to this assertion, this country was not founded on belief in God.  Rather, the founding principle of the United States--the feature that distinguishes its legal system from that of other nations, including the European monarchies (which were founded on a belief in God and a supposed divine sanction for monarchy)--is the principle of individual freedom, ensured by a system of limited government.  Not belief in God, but constitutional protection of the individual's right to believe (or not believe) in God, is one of our founding principles.  It is consistent with the Founders' overall plan to create a constitutional order in which the coercive power of government would be strictly limited to a few legitimate purposes.  Everything else that is of value to people in civil society--including religious belief--was left to the private sphere.  The Founders' commitment to religious freedom does indeed show how highly they valued religion: they valued it enough to keep it beyond the sphere of government control.
        The Founders' vision of a republican government strictly limited to a few legitimate purposes, unfortunately, has not been realized; government today intrudes in people's lives in many ways contrary to the Founders' design of limited government.  Thanks to the First Amendment, however, at least one aspect of the Founders' vision--their commitment to the individual's freedom of conscience--has been preserved.  That's why it is so important to maintain the constitutionally-mandated rule of government neutrality with regard to matters of religious belief, even where (as with Ohio's state motto) the issue seems largely symbolic.  Let's keep government restricted to its proper sphere, and leave religion where it belongs--in each individual's conscience.