American Civil Lib. Union v. Capital Sq. Review

• Decision Date: 01 September 1998
• Docket Number: No. C2-97-863.,C2-97-863.
• Citation: 20 F.Supp.2d 1176
• Parties: AMERICAN CIVIL LIBERTIES UNION OF OHIO, et al., Plaintiffs, v. CAPITOL SQUARE REVIEW AND ADVISORY BOARD, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

20 F.Supp.2d 1176

AMERICAN CIVIL LIBERTIES UNION OF OHIO, et al., Plaintiffs, v. CAPITOL SQUARE REVIEW AND ADVISORY BOARD, et al., Defendants.

No. C2-97-863.

United States District Court, S.D. Ohio, Eastern Division.

September 1, 1998.

Mark B. Cohn, Trial Attorney, Cooperating Attorney, ACLU of Ohio Foundation, Inc., Cleveland, OH, Thomas D. Buckley, Jr., (Pro Hac Vice), Trial Attorney, Cooperating Attorney, ACLU of Ohio Foundation, Inc., Cleveland, OH, Joan M. Englund, Trial Attorney, Trial Attorney, Legal Director, ACLU of Ohio Foundation, Inc., Cleveland, OH, Scott T. Greenwood, Trial Attorney, Cooperating Attorney, ACLU of Ohio Foundation, Inc., Cincinnati, OH, for Plaintiffs; David Goldberger, Cooperating Attorney, ACLU of Ohio Foundation, Inc., Columbus, OH, Louis A. Jacobs, Cooperating Attorney, ACLU of Ohio Foundation, Inc., Upper Arlington, OH, of counsel.

Betty D. Montgomery, Atty. Gen. of Ohio, Michael Renner, Chief Counsel, Jeffrey S. Sutton, State Solicitor, David M. Gormley, Arthur J. Marziale, Jr., Asst. Attys. Gen., Office of Ohio Atty. Gen., Columbus, OH, John G. Stepanovich, Chesapeake, VA, (Attorney for Amicus Curiae American Center for Law and Justice), for Defendants.

OPINION AND ORDER

GRAHAM, District Judge.

The issue presented in this case is whether the official motto of the state of Ohio "With God All Things Are Possible" is an endorsement of religion forbidden by the Establishment Clause of the First Amendment of the United States Constitution.¹ The plaintiffs are the American Civil Liberties Union of Ohio, Inc., and Matthew Peterson, a Presbyterian minister. The defendants include the Capitol Square Review and Advisory Board ("Board"); Ronald T. Keller, Executive Director of the Board; Daniel Shellanbarger, Assistant Director of the Board; and Richard H. Finan, an Ohio State Senator, who is Chairperson of the Board. Also named as defendants are the Governor of the State of Ohio, George Voinovich; the Secretary of State, Bob Taft; and the Commissioner of the Ohio Department of Taxation, Roger W. Tracy.

Capitol Square is a ten-acre site in the center of Columbus, Ohio where the Ohio state capitol building, or "statehouse", is located. The Board is charged by law with the duty of regulating all uses of Capitol Square and is vested with the authority to approve all improvements and additions to the statehouse and the statehouse grounds. Ohio Rev.Code § 105.41.

The governor is vested by law with the authority to approve all uses of the official seal of the state of Ohio. See Ohio Rev.Code § 5.10. Plaintiffs allege that Governor Voinovich approved the use of the motto in conjunction with the seal pursuant to the authority vested in him and that he originated the idea of displaying the motto at the statehouse. Secretary of State Taft and Tax Commissioner Tracy allegedly display the motto on official stationery and forms used in their official functions.

On October 1, 1959, the General Assembly of the state of Ohio enacted legislation declaring that the phrase "With God, All Things Are Possible" shall be the state's official motto.² There is no official legislative history of the statute which adopted the motto, but contemporary documents and newspaper accounts indicate it was suggested by a twelve-year-old Cincinnati boy, James Mastronardo, who made several trips to Columbus to speak to the Ohio General Assembly on behalf of his proposal. Ohio's then secretary of state, Ted W. Brown, undoubtedly recognizing a chance for some excellent publicity, "legitimized" James's efforts to influence the legislators by registering him as a lobbyist and later by presenting him with a special citation after the statute had been passed and signed by the governor. A press release issued at that time by Secretary of State Brown indicates that in 1865, the General Assembly adopted the motto "Imperium in Imperio" but repealed it two years later on the ground that it "smacked too much of royalty." Affidavit of Ronald T. Keller In Support of Defendants' Memorandum of Law, Attachment One. Brown's press release also states that young James "chose a verse in the New Testament, Matthew 19:26, ... from which to draw the official motto." Id.

Shortly after the motto was officially adopted, Secretary of State Brown created a distinctive design by inscribing the motto on a ribbon-like device and combining it with the state seal, which he then used on his letterhead and other official documents. His successors have followed suit and certain other state officials, including the tax commissioner, have done likewise.

The state seal is a circular device which contains no religious symbols. In the foreground of the seal are a sheaf of wheat and a sheaf of arrows. In the background are mountains and a rising sun; between the background and foreground are a river and cultivated fields. See Ohio Rev.Code § 5.04. In May 1996, after returning from a trip to India where he saw the motto "Government Work Is God's Work" inscribed on a public building, Governor Voinovich recommended to the Board that the state motto be inscribed above the main entrance to the statehouse. In November, 1996, the Board adopted a modified version of the governor's recommendation and decided to engrave the state seal and motto on a granite plaza at the west entrance of the statehouse. The state seal and ribbon-like device bearing the motto, which the state proposes to install at the Capitol Square Plaza, will be made of bronze and embedded in a granite pavement at ground level. The combined display will be ten feet, nine inches by twelve feet, four inches. The letters of the motto will be six to eight inches in height.

Plaintiffs seek a declaratory judgment declaring the motto unconstitutional, and they request a permanent injunction enjoining the defendants from displaying the motto on the Capitol Square Plaza and from using it in any official way in the future.

I.

Citing County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 608-609, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) ("we have expressly required `strict scrutiny' of practices suggesting `a denominational preference'") plaintiffs assert that Ohio's motto endorses the Christian religion over other religions and must be invalidated unless it is justified by a compelling government interest. See Larson v. Valente, 456 U.S. 228, 246, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). Plaintiffs assert that the motto is sectarian because it is taken from the Christian New Testament, specifically, from a saying attributed to Jesus. The Court finds this argument unpersuasive.

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.³

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 generically 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 Bible⁴ as well as the Qur'an,⁵ the sacred book of the Muslims.

The Golden Rule, "Do Unto Others As You Would Have Them Do Unto You," is also a saying attributed to Jesus in the Christian New Testament.⁶ Many aphorisms which are part of our common vocabulary have their origin in the Hebrew Bible or the Christian New Testament. The national motto, "In God we trust," 36 U.S.C. § 186, appears to have been inspired by a passage in the Hebrew Bible.⁷ None of these expressions are regarded as sectarian, nor should the motto here under consideration.

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 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.

In some of its usages of the motto, the state has included a citation to the New Testament text, "Matt. 19:26." However, the statute which established the motto does not contain this reference, nor does the state intend to include it with the words to be inscribed on the Capitol Square Plaza.

This case is unlike County of Allegheny, in which the sectarian nature of the phrase "Glory to God in the Highest"⁸ was manifested by its context, namely the display of a creche depicting the birth of Jesus. See 492 U.S. at 580, 109 S.Ct. 3086. In the instant case, the words of the motto will be displayed in the secular context of the state seal, a completely secular device.

II.

Plaintiffs further argue that even if the motto is not sectarian, it nevertheless constitutes a governmental preference of religion over nonreligion which violates the Establishment Clause. The Supreme Court has said in other contexts that the Establishment Clause does not permit official preference of religion over nonreligion. See Texas Monthly Inc. v. Bullock, 489 U.S. 1, 8, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989); Wallace v. Jaffree, 472 U.S. 38, 41 n. 37, 53, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985).⁹ The Court has also held, however, that certain forms of official acknowledgment of religion which are regarded as part of the "fabric of our society" are...