American Civil Liberties Union OH v. Capitol Square Review

• Decision Date: 06 December 2000
• Docket Number: No. 98-4106,98-4106
• Parties: (6th Cir. 2001) American Civil Liberties Union of Ohio and The Reverend Matthew Peterson, Plaintiffs-Appellants, v. Capitol Square Review and Advisory Board; Robert Taft, Governor of Ohio; Ronald R. Keller, Executive Director of the Board; Daniel Shellenbarger, Assistant Director of the Board; Richard H. Finan, Ohio State Senator; J. Kenneth Blackwell, Secretary of State; and Thomas M. Zaino, Tax Commissioner, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 289

243 F.3d 289 (6th Cir. 2001)

American Civil Liberties Union of Ohio and The Reverend Matthew Peterson, Plaintiffs-Appellants, v. Capitol Square Review and Advisory Board; Robert Taft, Governor of Ohio; Ronald R. Keller, Executive Director of the Board; Daniel Shellenbarger, Assistant Director of the Board; Richard H. Finan, Ohio State Senator; J. Kenneth Blackwell, Secretary of State; and Thomas M. Zaino, Tax Commissioner, Defendants-Appellees.

No. 98-4106

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 6, 2000

Decided and Filed: March 16, 2001

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 97-00863--James L. Graham, District Judge.

Mark B. Cohn, McCARTHY, LEBIT, CRYSTAL & HAIMAN, Cleveland, Ohio, Susan B. Gellman, WOLMAN, GENSHAFT & GELLMAN, Columbus, Ohio, Thomas D. Buckley, Jr., Raymond Vasvari, Jr., ACLU OF OHIO FOUNDATION, INC., Cleveland, Ohio, for Appellants. David M. Gormley, Edward B. Foley, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellees.

David R. Huggins, NATIONAL LEGAL FOUNDATION, Virginia Beach, Virginia, for Amici Curiae the AMERICAN FAMILY ASSOCIATION OF OHIO, CITIZENS FOR COMMUNITY VALUES, FAMILY FRIENDLY LIBRARIES OF OHIO, MEDINA COUNTY CHRISTIAN COALITION, CHRISTIAN COALITION OF OHIO, and TRUE BLUE PATRIOTS; John G. Stephanovich and Shawn A. Voyles, Virginia Beach, Virginia, for Amicus Curiae the AMERICAN CENTER FOR LAW & JUSTICE MID-ATLANTIC; Steven K. Green, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., and David M. Levine, BENESCH, FRIEDLANDER, COPLAN & ARONOFF, Cleveland, Ohio, for Amici Curiae AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE and THE ANTI-DEFAMATION LEAGUE.

Before: MARTIN, Chief Judge; MERRITT, NELSON, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.

NELSON, J., delivered the opinion of the court, in which BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, COLE, and GILMAN, JJ., joined. CLAY, J. (pp. 42-44), delivered a separate concurring opinion. MARTIN, C. J. (pp. 45-46), and MERRITT, J. (pp. 47-58), delivered separate dissenting opinions, with MARTIN, C. J., DAUGHTREY, and MOORE, JJ., joining in Judge MERRITT's dissent.

OPINION

DAVID A. NELSON, Circuit Judge.

The First Amendment of the United States Constitution begins with these familiar words: "Congress shall make no law respecting an establishment of religion . . . ." For more than 60 years now, the Fourteenth Amendment has been held to impose a like prohibition on the several states. See Cantwell v. Connecticut, 310 U.S. 296 (1940).

In 1959, three years after Congress passed and President Eisenhower signed legislation making "In God We Trust" our national motto, the State of Ohio adopted a similar motto: "With God, All Things Are Possible." Ohio Laws 128 v 252, eff. 10/1/59, codified at Ohio Rev. Code § 5.06.

The plaintiffs in the case at bar initially claimed that Ohio Rev. Code § 5.06 violates both the federal constitutional prohibition against a governmental establishment of religion and Article I § 7 of the Ohio Constitution. ¹ The state constitutional claim appears to have been abandoned at the trial level, and the district court rejected the plaintiffs' federal Establishment Clause claim. See American Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Bd., 20 F. Supp. 2d 1176 (S.D. Ohio 1998) (hereinafter "A.C.L.U.").

A divided three-judge panel of this court reversed the district court decision, each member of the panel writing separately. The several opinions of the panel members are reported at 210 F.3d 703 (Cohn, J.), 727 (Merritt, J.), and 730 (Nelson, J.).

After the filing of a petition for rehearing en banc, a majority of the active judges of the full court voted to grant rehearing. Under Sixth Circuit Rule 35(a), this had the effect of (1) vacating the judgment which the panel had entered on behalf of the court, (2) staying the mandate, and (3) restoring the case on the docket as a pending appeal. The full court has now had the benefit of supplemental briefing and oral argument, and the case is ready for final determination.

Upon reconsideration we have concluded that the Ohio motto does not violate the Establishment Clause. The judgment entered by the district court will therefore be affirmed.

We shall explain our reasoning shortly. First, however, we turn to a brief summary of the facts.

I

The state's current motto (an earlier one, "Imperium in Imperio," was revoked by the Ohio General Assembly in 1867) seems to have been the brainchild of a Cincinnati schoolboy named James ("Jimmy") Mastronardo. In the late 1950s Jimmy was encouraged by the then Secretary of State of Ohio, Ted W. Brown, to promote his idea before the General Assembly. (The district court opinion notes that Secretary Brown, "undoubtedly recognizing a chance for some excellent publicity," went so far as to register Jimmy as a "lobbyist." See A.C.L.U., 20 F. Supp. 2d at 1178.)

The lobbying efforts were crowned with success. And when the act adopting the motto was passed by the legislature and signed by the governor, Secretary Brown issued a press release explaining, among other things, that Jimmy "chose a verse in the New Testament, Matthew 19:26 . . . from which to draw the official motto." ² Pamphlets published by the state to describe Ohio's history, government, and official symbols also identified the source of the motto as Matthew 19:26.

The motto soon was displayed in conjunction with Ohio's seal - a "completely secular device," as the district court accurately observed - images of which graced Secretary Brown's letterhead and certain other official stationery and publications. The depiction of the seal itself was not changed, but a ribbon-like device bearing the words of the motto was sometimes added just beneath the seal, encircling its lower half. The Ohio Department of Taxation, among others, joined the Secretary of State's office in using both symbols on its official letterheads and some of its forms.

In 1996 the then Governor of Ohio, George V. Voinovich, recommended to the Capitol Square Review and Advisory Board that the motto be inscribed on the Ohio statehouse. (Governor Voinovich made his recommendation after noticing, on a trip to India, a government building adorned with this thought-provoking legend: "Government Work is God's Work.") The Board chose to leave the statehouse alone, but decided to replicate both the seal and the motto on bronze flatwork embedded at ground level in the plaza outside the High Street entrance to the statehouse. (The plaza, also known as "Capitol Square," has been described by the Supreme Court as "a 10-acre, state-owned plaza surrounding the statehouse in Columbus, Ohio." See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 757 (1995)). The seal-cum-motto display was to be ample in scale; its projected dimensions were twelve feet, four inches, by ten feet, nine inches.

The instant lawsuit was filed prior to installation of the seal and motto in the pavement of the plaza. The plaintiffs are the Reverend Mr. Matthew Peterson - an Ohio taxpayer employed as an associate pastor at a Presbyterian Church in Cleveland Heights, Ohio - and the American Civil Liberties Union of Ohio. The defendants include the board, the current governor, and sundry other officials.

The plaintiffs' complaint asserts claims arising under 42 U.S.C. § 1983, the First and Fourteenth Amendments to the Constitution of the United States, and Article I § 7 of the Ohio Constitution. The plaintiffs conclude their pleading with a prayer for relief in which they seek, among other things, an injunction to prevent the motto from being displayed on the plaza, or elsewhere on the statehouse grounds, or on the statehouse itself; a declaration that Ohio Rev. Code § 5.06 is unconstitutional; an injunction against any future use of the words "With God All Things Are Possible" as the state motto; and an award of costs and attorney fees. The parties have stipulated to an order preventing installation of the display on Capitol Square pending disposition of the lawsuit.

Following a trial, the district court issued the decision now being challenged here. While concluding that the motto per se is not unconstitutional, and thus declining to enjoin its use on Capitol Square or elsewhere, the district court did enjoin the state "from attributing the words of the motto to the text of the Christian New Testament." See A.C.L.U., 20 F. Supp. 2d at 1185. The state has not appealed this injunction, and we intimate no view as to whether the issuance of such an order was error.

II

As evidenced by the dissents herein, as well as by the lead and concurring opinions of the members of the original three-judge panel, this is not necessarily an easy case. We think it would be quite an easy case, however, if the constitutional prohibition against the enactment of legislation "respecting an establishment of religion" were to be read as meaning what it seems to have meant when the Bill of Rights (which includes the First Amendment, of course) was added to the federal Constitution. It would be an equally easy case, for that matter, if the prohibition were read as meaning what it seems to have meant when the Fourteenth Amendment was adopted, or when the Fourteenth Amendment was first held to extend the strictures of the Establishment Clause to the individual states.

A

For most of our history as an independent nation, the words of the constitutional prohibition against enactment of any law "respecting an establishment of religion" were commonly assumed to mean what they literally said. The provision was not understood as prohibiting the state from merely giving voice, in general terms, to religious sentiments widely shared by those of its citizens who profess a belief in God. As Justice William O. Douglas famously said,...