210 F.3d 703 (6th Cir. 2000), 98-4106, American Civil Lib. Union of OH v. Capitol Square Review & Advisory Bd.
| Citation | 210 F.3d 703 |
| Party Name | AMERICAN CIVIL LIBERTIES UNION OF OHIO; MATTHEW PETERSON, REVEREND, PLAINTIFFS-APPELLANTS, V. CAPITOL SQUARE REVIEW AND ADVISORY BOARD; ROBERT TAFT, GOVERNOR OF OHIO; RONALD R. KELLER; DANIEL SHELLENBARGER; RICHARD H. FINAN; J. KENNETH BLACKWELL, SECRETARY OF STATE; THOMAS M. ZAINO, TAX COMMISSIONER, DEFENDANTS-APPELLEES. |
| Case Date | April 25, 2000 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit |
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Argued: November 4, 1999
Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 97-00863--James L. Graham, District Judge.
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Mark B. Cohn, McCARTHY, Lebit, Crystal & Haiman, Cleveland, Ohio, Louis A. Jacobs, Columbus, OH, Susan B. Gellman, Wolman, Genshaft & Gellman, Columbus, Ohio, Raymond Vasvari, ACLU, of Ohio Foundation, Inc., Cleveland, Ohio, Scott T. Greenwood, Greenwood & Associates, Cincinnati, OH, Thomas D. Buckley, Jr., Aclu OF Ohio Foundation, Inc., Cleveland, Ohio, for Plaintiffs-Appellants.
David M. Gormley, Edward B. Foley, Office OF The Attorney General OF Ohio, Columbus, Ohio, for Appellees.
David R. Huggins, The National Legal Foundation, Virginia Beach, Virginia, John G. Stepanovich, Shawn A. Voyles, The American Center For Law & Justice Mid-atlantic, Virginia Beach, Virginia, for Amici Curiae.
Before: Merritt and Nelson, Circuit Judges; Cohn, District Judge[*].
COHN, D. J., delivered the opinion of the court. MERRITT, J. (pp. 727-30), delivered a separate concurring opinion, in which COHN, D. J., joined. NELSON, J. (pp. 730-31), delivered a separate dissenting opinion.
OPINION
Cohn, District Judge.
By separating government and religion the establishment clause enables [a religious heterogeneous] society to maintain some civility among believers and unbelievers as well as among diverse believers.
- Leonard Levy1
I. Introduction
A. Issue
In this case we are called upon to decide whether or not the official motto of the State of Ohio, "With God All Things Are Possible," taken directly from the New Testament of the Christian Bible, violates the Establishment Clause of the First Amendment to the Constitution. Disagreeing with the district court, which found the words of the motto compatible with the Constitution, American Civil Liberties Union v. Capitol Square, 20 F.Supp.2d 1176 (S.D. Ohio 1998), we find that it does violate the Establishment Clause and, accordingly, reverse the district court. Review is de novo, New Life Baptist Church Academy v. Town of East Long Lake Meadow, 885 F.2d 940, 941 (1st Cir. 1989). Our reasons follow.
B. Parties
Plaintiffs-appellants are the American Civil Liberties Union of Ohio and Matthew Peterson, a Presbyterian Minister. Defendants-appellees are the Capitol Square Review and Advisory Board (Board), Ronald T. Keller, Executive Director of the Board, Daniel Shellenbarger, Assistant Director of the Board, and Richard H. Finan, an Ohio State Senator and chairperson of the Board, as well as George Voinovich, then Governor of Ohio, Bob Taft, then Secretary of State of Ohio, now Governor, and Roger W. Tracy, then Commissioner of the Ohio Department of Taxation. The defendants collectively will be referred to as the State.
C. Background
1.
After seeing the motto, "Government Work is God's Work," inscribed on a public building in India, Governor Voinovich
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urged the Board to install an engraved state seal and the words of the Ohio motto on a granite plaza at the west end of the state house located in Capitol Square Plaza. In 1996, following an announcement that the Board intended to do so, plaintiffs brought suit for a declaratory judgment and injunction.2 Following a one-day trial, at which experts in the field of religion testified as to the origins and interpretation of the words of the motto in the context of which they are found in the New Testament, and numerous exhibits were received into evidence, the district court found that the words of the motto were compatible with the Establishment Clause3 and denied plaintiffs relief. The district court, however, without explanation, permanently enjoined the State of Ohio from attributing the words of the motto to the text of the New Testament.
2.
The words of the motto, "With God All Things Are Possible," are a direct quotation from Chapter 19, Verse 26 of the Gospel According to Matthew of the New Testament. It reads in relevant part:
The children were brought to him that he might lay his hands on them and pray. The disciples rebuked the people; but Jesus said, "Let the children come to me, and do not hinder them; for to such belongs the kingdom of heaven." And he laid his hands on them and went away.
And behold, one came up to him, saying, "Teacher, what good deed must I do, to have eternal life?" And he said to him, "Why do you ask me about what is good? One there is who is good. If you would enter life, keep the commandments." He said to him, "Which?" And Jesus said, "You shall not kill, You shall not commit adultery, You shall not steal, You shall not bear false witness, Honor your father and your mother, and, You shall love your neighbor as yourself." The young man said to him, "All these I have observed; what do I still lack?" Jesus said to him, "If you would be perfect, go, sell what you possess and give to the poor, and you will have treasure in heaven; and come, follow me." When the young man heard this he went away sorrowful; for he had great possessions.
And Jesus said to his disciples, "Truly, I say to you, it will be hard for a rich man to enter the kingdom of heaven. Again I tell you, it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God." When the disciples heard this they were greatly astonished, saying, "Who then can be saved?" But Jesus looked at them and said to them, "With men this is impossible, but with God all things are possible."
Matthew 19:13-26 (Oxford Annotated Bible with the Apocrypha, Revised Standard Version)4 (emphasis added).
Essentially, what is being described is a dialogue between Jesus, a rich young man, and Jesus' disciples in which Jesus concludes by saying that the salvation of a rich man is a miracle that only God can accomplish. A similar account is found in Mark 10:14-27 and Luke 18:15-27.
3.
a.
The American Heritage Dictionary of the English Language (3d ed.1992) describes
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as the central and most commonly sought meaning of Jesus, Christ, Christianity, and Christian as follows:
- Jesus - A teacher and prophet who lived in the first century of this era and whose life and teachings form the basis of Christianity. Christians believe Jesus to be Son of God and the Christ.
- Christ - The Messiah, as foretold by the prophets of the Old Testament.
- Christianity - The Christian religion, founded on the life and teachings of Jesus.
- Christian - Professing belief in Jesus as Christ or following the religion based on the life and teachings of Jesus.
The American Heritage Dictionary further describes as the central and most commonly sought meaning of Matthew, Apostle, Gospel, and Salvation as follows:
- Matthew - One of the 12 Apostles and the traditionally accepted author of the first Gospel of the New Testament.
- Apostle - One of a group made up especially of the 12 disciples chosen by Jesus to preach the gospel.
- Gospel - One of the first four books of the New Testament, describing the life, death, and resurrection of Jesus and recording his teaching.
- Salvation - Deliverance from the power or penalty of sin; redemption.
These definitions are important to an understanding of the reasons for our decision.
b.
In Lynch v. Donnelly, 465 U.S. 668, 708 (1984), Justice Brennan, in describing the nativity scene (the place of Jesus' birth), a scene "rooted in a biblical account of Christ's birth," said in his dissenting opinion:
It is the chief symbol of the characteristically Christian belief that a divine Savior was brought into the world and that the purpose of this miraculous birth was to illuminate a path towards salvation and redemption.
In a footnote Justice Brennan further explained:
For Christians, of course, the essential message of the nativity is that God became incarnate in the person of Christ. But just as fundamental to Jewish thought is the belief in the "non-incarnation of God, . . . [t]he God in whom [Jews] believe, to whom [Jews] are pledged, does not unite with human substance on earth." . . . This distinction, according to [Martin] Buber, "constitute[s] the ultimate division between Judaism and Christianity." 465 U.S. at 708 n. 14 (internal citations omitted.)
As such, Jesus is unique among all figures of the Christian bible.
D. The District Court Decision
1.
The decision of the district court, finding the words of the motto compatible with the Establishment Clause, began by decontextualizing the meaning of Jesus' words:
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.
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 generally 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 Bible as
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well as the Qur'an, the sacred book of the Muslims.
20 F.Supp.2d at 1178-79 (footnotes omitted). The court went on to apply a subjective test for a reasonably informed observer (to be discussed below) reading the words of the motto:
Plaintiffs have presented no evidence that a reasonable person who reads the words of the...
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