Information Letter on the Constitutionality of the National Motto - 2004
Jay Sekulow's Information Letter on the Constitutionality of the National Motto
DISCUSSION
The history of the national motto "In God We Trust" goes back to 1814. In September of that year, during the British bombardment of Fort McHenry in Baltimore, Francis Scott Key composed the poem the "Star Spangled Banner," of which one line in the final stanza is "And this be our motto - 'In God is our trust.'" Steven B. Epstein, Rethinking The Constitutionality Of Ceremonial Deism, 96 Colum. L. Rev. 2083, 2122 (1996).
Later, around 1861, the Chief Justice Chase of the Supreme Court wrote the following in a letter to the Director of the Mint: "No nation can be strong except in the strength of God, or safe except in His defense. The trust of our people in God should be declared on our national coins." 100 Cong. Rec. 6231 (1954) (quoting Letter from Salmon P. Chase). Afterwards, the patterns for the half dollar and half eagle submitted in 1862 contained the inscription "God our Trust," and a pattern for a two-cent piece in 1863 included a bust of Washington with the legend "God and our Country." Epstein, 96 Colum. L. Rev. at 2123.
In 1865, Congress enacted legislation authorizing the phrase "In God We Trust" to be placed on certain coins. See 17 Stat. 424, 427 (1865). President Roosevelt ordered the motto removed in 1907, believing that stamping the phrase on coins was sacrilegious and that there was no legal warrant to do it. The next year, Congress responded by mandating the inscription of the phrase on all coins on which it had appeared before Roosevelt's action; Roosevelt acquiesced and signed the legislation. Epstein, 96 Colum. L. Rev. at 2123 (citing 35 Stat. 164 (1908)).
In 1931 Congress passed the act that until today officially designates as the national anthem "the composition consisting of the words and music known as the Star-Spangled Banner." 36 U.S.C. 301 (2001). However, it was not until the height of the Cold War in 1955 that Congress mandated the inscription of "In God We Trust" on all coins and paper currency. See 31 U.S.C. 5114 (2001). The legislation's sponsor, Representative Bennett, stated on the floor of Congress: In these days when imperialistic and materialistic communism seeks to attack and to destroy freedom, it is proper for us to seek continuously for ways to strengthen the foundation of our freedom. At the base of our freedom is our faith in God and the desire of Americans to live by His will and by His guidance. As long as this country trusts in God, it will prevail. To remind all of us of this self-evident truth, it is proper that our currency should carry these inspiring words, coming down to us through our history: "In God We Trust."
101 Cong. Rec. 4384 (1955) (statement of Rep. Bennett). The following year, Congress codified "In God We Trust" as the national motto. 36 U.S.C. 302 (2001) (stating ""In God we trust" is the national motto"). Congress's rationale for doing so can be found in the relevant House Report: It will be of great spiritual and psychological value to our country to have a clearly designated national motto of inspirational quality in plain, popularly accepted English. The Judiciary Committee of the House of Representatives recognizes that the phrase "E pluribus unum" has also received wide usage in the United States. However, the committee considers "In God We Trust" a superior and more acceptable motto for the United States.
H.R. Rep. No. 84-1959, at 1 (1956). Thus, "In God We Trust" has remained the national motto since 1956.
THE CONSTITUTIONALITY OF THE NATIONAL MOTTO
It is commonly understood that our government, its Constitution, and its laws are founded on a belief in God. Mere acknowledgment of God by the government or government officials cannot be said to be "establishment of religion," such that it would violate the Establishment Clause of the United States Constitution. The nation's history is replete with examples of acknowledgment of religious belief in the public sector. Since the Founding of the Republic (1), American Presidents have issued Thanksgiving Proclamations establishing a national day of celebration and prayer. President Washington issued the first such proclamation at the request of the First Congress, and "recommend[ed] and assign[ed]" a day "to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be," so that "we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to promote the knowledge and practice of true religion and virtue . . ." 1 J. Richardson, A Compilation of Messages and Papers of the Presidents, 1789?1897, p. 64 (1899).
Most succeeding of presidents followed suit, and the forthrightly religious nature of these proclamations has not waned with the years. Indeed, President Franklin D. Roosevelt endorsed "a nationwide reading of the Holy Scriptures ring the period from Thanksgiving Day to Christmas" so that "we may bear more earnest witness to our gratitude to Almighty God." Presidential Proclamation No. 2629, 58 Stat. 1160. Similarly, our Presidential inaugurations have traditionally opened with a request for divine blessing.
The Legislative Branch has gone much further, not only employing legislative chaplains, see 2 U.S.C. 61d, but also setting aside a special prayer room in the Capitol for use by Members of the House and Senate. The room is decorated with a large stained glass panel that depicts President Washington kneeling in prayer; around him is etched the first verse of the 16th Psalm: "Preserve me, O God, for in Thee do I put my trust." Beneath the panel is a rostrum on which a Bible is placed; next to the rostrum is an American Flag. See L. Aikman, We the People: The Story of the United States Capitol 122 (1978).
The United States Code itself contains religious references. Congress has directed the President to "set aside and proclaim a suitable day each year . . . as a National Day of Prayer, on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals." 36 U.S.C. 169h. This statute does not require anyone to pray, of course, but it is a straightforward endorsement of the concept of "turn[ing] to God in prayer." Also by statute, the Pledge of Allegiance to the Flag describes the United States as "one Nation under God." Likewise, our national motto, "In God we trust," 36 U.S.C. 186, is prominently engraved in the wall above the Speaker's dias in the Chamber of the House of Representatives and is reproduced on every coin minted and every dollar printed by the Federal Government.
The Judicial Branch also acknowledges the central role of religion in our society. All federal courts open sessions with the request that "God save the United States and this honorable Court." A portrayal of the Ten Commandments decorates the courtroom of the United States Supreme Court, directly above the bench where the Honorable Justices are seated. As Justice Douglas observed, it is only through this accommodation that government can "follow the best of our traditions" and "respect the religious nature of our people." Zorach v. Clauson, 343 U.S. 306, 314 (1952).
In 1892, the Supreme Court stated that "this is a religious nation." Church of the Holy Trinity v. United States, 143 U.S. 457, 470 (1892). The Court has discussed the historical role of religion in our society and concluded that "[t]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Lynch v. Donnelly, 465 U.S. 668, 674 (1984). In Abington v. Schempp, 374 U.S. 203, 212 (1963), the Court recognized that "religion has been closely identified with our history and government." Such recognition is nowhere more affirmatively expressed than in Zorach where the Court stated that "[w]e are a religious people whose institutions presuppose a Supreme Being." 343 U.S. at 313. The Establishment Clause was never intended as a guarantee that a person will not be exposed to religion or religious symbols on public property, and the current Court does not appear ready to eradicate all symbols of this country's religious heritage from the public's view.
A. Supreme Court Pronouncements on the Constitutionality of the National Motto
In its Establishment Clause jurisprudence, the Supreme Court has suggested on numerous occasions that the national motto poses no Establishment Clause problems. In Engel v. Vitale, 370 U.S. 421 (1962), striking down school prayer, the Court implied that display of the national motto in public school would not violate the Establishment Clause:
There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for country by reciting historical documents such as the Declaration of Independence which contain references to Deity or by singing officially espoused anthems which contain the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.
Id. at 435 n.21.
In Lynch v. Donnelly, 465 U.S. 668 (1984), Justice O'Connor observed that government acknowledgments of religion, such as the "declaration of thanksgiving as a public holiday," printing 'In God We Trust' on coins, and opening court sessions with 'God Save the United States an this honorable court'" could not be reasonably perceived as a government endorsement of religion.
Those government acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society. For that reason, and because of their history and ubiquity, those practices are not understood as conveying government approval of particular religious beliefs.
Id. at 693 (O'Connor, J., concurring). See also County of Allegheny v. ACLU, 492 U.S. 573, 603-04 (1989) (Justice O'Connor again expressed belief that national motto posed no Establishment Clause problems).
Justice Brennan, perhaps one of the Court's most strict separationists, also thought that the national motto was constitutional:
[S]uch practices as the designation of "In God We Trust" as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood ... as a form of "ceremonial deism" protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content. Moreover, those references are uniquely suited to serve such wholly secular purposes as solemnizing public occasions, or inspiring commitment to meet some national challenge in a manner that simply could not be fully served in our culture if government were limited to purely nonreligious phrases. The practices by which the government has long acknowledged religion are therefore probably necessary to serve certain secular functions, and that necessity, coupled with their long history, gives those practices an essentially secular meaning.
Id. at 716-17 (Brennan, J., dissenting) (citations omitted). See also Abington v. Schempp, 374 U.S. 203, 303 (1963) (Justice Brennan opined that the national motto was "so deeply interwoven into the fabric of our civil polity that its present use may well not present that type of involvement which the First Amendment prohibits").
In Allegheny, Justices Kennedy, Scalia, Rehnquist, and White dissented from the Court's decision to strike down the Christmas display in that case and their dissenting opinion clearly indicates that they would not strike down the national motto. Criticizing the endorsement test as being both flawed and unworkable, the dissent sets forth a detailed description of every government acknowledgment of religion in public life, including the national motto and concludes that it could not survive under a consistent and logical application of the endorsement test. "Either the Endorsement test must invalidate scores of traditional practices [including the national motto], or it must be twisted and stretched to avoid inconsistency with practices we know to have been permitted in the past, while condemning similar practices with no greater endorsement effect simply by reason of their lack of their historical antecedent." Id. at 674.
Of the current members of the Court, then, it is probably safe to say that a majority of them - Justices Rehnquist, O'Connor, Scalia, Thomas, and Kennedy - would uphold the constitutionality of the national motto.
B. Lower Court Decisions Upholding the Constitutionality of the National Motto
Every court that has decided the issue has held that the national motto presents no Establishment Clause concerns. Most recently, in Gaylor v. United States, 74 F.3d 214 (10th Cir.), cert. denied, 116 S.Ct. 1830 (1996) the Tenth Circuit rejected an Establishment Clause challenge to the use of the national motto, "In God we trust," and its reproduction on United States currency. The court considered itself bound by the Supreme Court's various dicta on the constitutionality of the national motto "almost as firmly as the Court's outright holdings, particularly when the dicta is recent and not enfeebled by later statements." Id. at 217. Applying the Lemon test first, the court found that all three requirements were easily met: 1) the motto had the clear secular purposes of symbolizing the historical role of religion in our society, formalizing the medium of exchange, and expressing confidence in the future; 2) its primary effect was not to advance religion because it is a form of "ceremonial deism" which through historical usage and ubiquity cannot be reasonably understood to convey government approval of religious belief; and 3) it does not create an intimate relationship of the type that suggests unconstitutional entanglement. Gaylor, 74 F.3d at 216.
The court next applied the endorsement test, considering the motto and its use on currency from the perspective of the reasonable observer. Holding that a reasonable observer must be deemed to be aware of the purpose, context, and history of the phrase "In God we trust," the court decided that the reasonable observer would not consider its use or its reproduction on U.S. currency to be an endorsement of religion. Id. at 217.
The Ninth Circuit has also sustained the constitutionality of the national motto. See Aranow v. United States, 432 F.2d 242 (9th Cir. 1970). As in Gaylor, Aranow challenged the constitutionality of federal statutes requiring the national motto to be inscribed on U.S. currency. In a two-page opinion, the court dismissed the plaintiff's claim, concluding brusquely that "it is quite obvious that the national motto and the slogan on coinage and currency has nothing whatsoever to do with the establishment of religion." Citing to the Supreme Court's dicta in Engel, the court explained that the national motto has no "true resemblance to a government sponsorship of a religious exercise." "While 'ceremonial' and 'patriotic' may not be particularly apt words to describe the category of the national motto, it is excluded from First Amendment significance because the motto has no theological or ritualistic impact." Id. at 243.
In O'Hair v. Murray, 462 F. Supp. 19 (W.D. Tex. 1978), aff'd per curiam, 588 F.2d 1144 (5th Cir. 1978), cert. denied, 442 U.S. 930 (1979), the court relied upon Aranow in holding that the federal statutes requiring the national motto to be printed on the nation's currency were constitutional. In a one-page opinion, the court quoted from Justice Brennan's concurring opinion in School Dist. of Abington Township v. Schempp, 374 U.S. 203, 303 (1963) and concluded that the national motto "does not infringe on First Amendment rights." Id. at 19.
Finally, in Opinion of the Justices, Supreme Court of New Hampshire, 228 A.2d 161 (N.H. 1967), the Supreme Court of New Hampshire advised the New Hampshire Senate that a proposed Senate resolution requiring all public schools to display in every classroom a plaque with the national motto inscribed on it would "not offend the establishment clause of the first Amendment of the United States Constitution." Id. at 164.
Conclusion
Under existing case law, there is very little upon which to stake an argument that the national motto violates the Establishment Clause. All authority on point is against such a contention.(2) Although enterprising lawyers can find support for just about any proposition in the Supreme Court's multifarious Establishment Clause pronouncements, pressing a claim that the national motto violates the First Amendment comes close to frivolousness.
(1) The following historical summary was distilled from Justice Kennedy's dissenting opinion in County of Allegheny v. ACLU, 492 U.S. 573, 671-72 (1989).
(2) In addition, many federal courts have referred in dicta to the probable constitutionality of the national motto. See, e.g., ACLU v. McCreary County, 96 F. Supp. 679, 688 (E.D. Ky. 2000).