Column: The Pope, Invoking God, and New York Courtrooms (New York Law Journal)

Last week, we experienced Pope Francis captivating millions of people by touring Washington, D.C., New York, and Philadelphia with his aura of humility and his message of compassion. At the same time, we witnessed the remarkable sight of the government virtually genuflecting to a religious figure, starting with President Obama personally receiving the Pope upon his landing in the Washington area and culminating in the Pope addressing a joint session of Congress.

The Pope’s tour prompted broad discussion of the role of religion in our society, with the Pope himself devoting much of a public address last Saturday in Philadelphia to the importance of freedom of religion. At the same time, the prominent role the government played in hosting the Pope highlights concerns about the evanescence of the constitutional line between Church and State.

From my perspective, the government’s embrace of Pope Francis was less about religion and more the secular values that have led the Pope to initiate fundamental reform of the Catholic Church, an initiative that has elevated him to nearly rock star status outside the church. Nonetheless, last week’s government-Papal engagement did refocus attention on a long-standing concern of mine about an invocation of God found throughout New York’s judicial system.

In courtrooms across the state, plaintiffs, defendants, lawyers, and audience members look up at judges and see just above them a succinct inscription on the walls behind their benches: “In God We Trust.” Every time I appear in such a courtroom, I am troubled by the suggestion of divine oversight of the judiciary. And one need not be an Establishment Clause crank to believe that many less informed courtroom participants will construe this inscription to be a clear sign that God plays an important role in the judicial proceedings taking place before them.

Government use or accommodation of religious messages has been the subject of constitutional litigation for decades, and in many instances courts – including the Supreme Court of the United States – have ruled that such government use or accommodation is permissible. But the Supreme Court has also struck down some such efforts, and I am unaware of any significant rulings about the posting of “In God We Trust” in courtrooms. In the wake of the Pope’s dramatic tour, now is an apt time to examine the propriety of that inscription in New York’s courtrooms.

Our National Motto
“In God We Trust” is the motto of the United States.¹ It does not appear in the Declaration of Independence, the United States Constitution, or in the Bill of Rights, nor does it appear in the Federalist Papers.

Rather, “In God We Trust” was adopted as the national motto in 1956 in the midst of the Cold War, with Congress apparently seeking to highlight the contrast between the United States and the atheistic Soviet Union.

The phrase is credited to Francis Scott Key, who included the line, “And this be our motto: “In God is our trust” in a stanza of his 1814 “Star-Spangled Banner” (a stanza not sung as part of the national anthem). “In God We Trust” first appeared on coins during the Civil War and now appears on all of our currency.

Challenging the Motto
The Supreme Court has never ruled on any aspect of government use of “In God We Trust,” and the phrase appears only as an aside in a few of the Court’s opinions. Further reflecting the unsettled nature of the law surrounding the national motto, it was only last year that the Second Circuit for the first time addressed a challenge to the motto. That decision is a useful starting point.

Newdow v. United States² was brought by Michael Newdow, who has challenged various aspects of government use of religious messages (most notably the addition of “under God” to the Pledge of Allegiance). In the Second Circuit case, he argued that the inclusion of “In God We Trust” on U.S. currency violated the First Amendment’s Establishment Clause and the Religious Freedom Restoration Act of 1993, a statute Congress enacted to strengthen protections for religious practices (and commonly referred to as RFRA). Four other Circuits had rejected similar currency challenges, but as the Second Circuit noted in its per curiam opinion, “We have never addressed the question of whether the inclusion of the words ‘In God We Trust’ on United States currency violates the Constitution or RFRA and write today to clarify the law on this issue.”

The Court of Appeals first examined the Establishment Clause claim and laid out the basic law that long has governed such claims under the Supreme Court’s so-called “Lemon test”:

The First Amendment of the Constitution provides that “Congress shall make no law respecting an establishment of religion.” In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court held that, in order to comply with the Establishment Clause: “First, the statute [at issue] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances or inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. Although the Supreme Court has, in some cases, criticized or declined to apply Lemon, we have previously held that Lemon remains the prevailing test in this Circuit, absent its abrogation.

Applying this test, the Second Circuit reasoned that the “Supreme Court has repeatedly indicated in dicta” that the relevant currency statutory provisions have a secular purpose “and neither advance nor inhibit religion.” The Circuit further observed that the Supreme Court had treated the motto and its inclusion on currency as “a reference to our religious heritage.” Given that, the Circuit concluded that the Court’s Justices “have distinguished our currency from improper governmental endorsements of religion.”

As for the RFRA claim, the Second Circuit focused on whether placement of the motto on currency imposed a “substantial burden” on religious beliefs, which is a predicate for a claim under the statute. And on this point, the Court “respectfully” rejected the claim of a substantial burden: “[T]he carrying of currency, which is fungible and not publicly displayed, does not implicate concerns that its bearer will be forced to proclaim a viewpoint contrary to his own.”

With that analysis, the Second Circuit affirmed the District Court’s dismissal of the case. In January of this year, the Supreme Court rejected Newdow’s request that it review the ruling.

Religious Texts on Government Walls
Though it never has ruled on “In God We Trust,” the Supreme Court twice has invalidated the posting of religious messages on the walls of government spaces. Those rulings raise genuine questions about the validity of the posting of “In God We Trust” in New York’s courtrooms.

At issue in the Court’s 1980 decision in Stone v. Graham³ was a Kentucky statute that required the posting of the Ten Commandments on the wall of each public classroom in the state. In summarily holding the statute unconstitutional, the Court applied the three-part Lemon test, noting that “[i]f a statute violates any of [its] principles, it must be struck down under the Establishment Clause.” And in applying the test, the Court readily found that the posting of the Ten Commandments could not have a secular purpose given their content:

The pre–eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20: 12–17; Deuteronomy 5: 16–21. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day. See Exodus 20: 1–11; Deuteronomy 5: 6–15.

Importantly, the Court noted that the Ten Commandments were not integrated into some larger display, which might have an overall educational purpose. Rather, it was only this religious text, and the “[p]osting of religious texts on the wall serves no such educational function.”

Stone would then play a large role in the Supreme Court’s most recent decision involving the posting of religious texts in government spaces. Decided just ten years ago, McCreary v. American Civil Liberties Union of Kentucky also involved a Ten Commandments display in Kentucky, though the display in that case was in a courthouse, bringing the Court’s jurisprudence one step closer to New York’s courtrooms.

McCreary arose out of the decision by two Kentucky counties to require the posting of the Ten Commandments in their county courthouses. After being sued, the counties twice changed their positions by adding new elements to their Ten Commandments displays in an effort to demonstrate a secular purpose as required by the Lemon test. By the time the case reached the Supreme Court, the question presented was whether the subsequent changes were sufficient to cleanse the display of its original, plainly religious purpose.

The Court opened its analysis by noting “[w]e take Stone as the initial legal benchmark.” And in describing Stone, the Court highlighted and reaffirmed key aspects of that case that have direct implications for the posting of “In God We Trust” in New York’s courtrooms:

The display rejected in Stone had two obvious similarities to the first one in the sequence here: both set out a text of the Commandments as distinct from any traditionally symbolic representation, and each stood alone, not part of an arguably secular display. Stone stressed the significance of integrating the Commandments into a secular scheme to forestall the broadcast of an otherwise clearly religious message . . . . Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view. The display in Stone had no context that might have indicated an object beyond the religious character of the text . . . .

Given the plainly unconstitutional nature of this type of stand-alone posting of a religious message, the McCreary counties made no effort to defend their original Ten Commandments display but instead argued that subsequent efforts to complement the display created a broader and secular context. But the Supreme Court readily rejected this, discounting the effort as a litigation tactic and noting that the supplements were essentially religious and thus only deepened the Establishment Clause violation.

Looking Forward
One need not be particularly imaginative to play out the hypotheticals that illustrate the problematic nature of New York courtroom displays. For instance, few would likely argue that judges could start appearing on the bench wearing buttons pinned to their robes proclaiming “In God I Trust.” Similarly, the display of a prominent sign on the bench facing the public with the message “In God We Trust” would almost certainly be seen by most as plainly unconstitutional.

The posting of that same message above and behind the judge seems little different. While it is unclear who the “We” is in the message, the posting of “In God We Trust” in a courtroom above a judge plainly conveys the message that God has a role to play in the judicial process playing out below the posting. Given the lack of any larger context to this message, it runs squarely into the Establishment Clause. We are not talking about tiny print on a bill or coin stuffed in a pocket.

To be sure, “In God We Trust” has been adorning New York courtrooms for a long time. But that does not change the fact that such a message, important as it may be to people of faith, has no place above judges dispensing justice in New York.

Footnotes
1 Codified at 36 U.S.C. § 302.
2 753 F.3d 105 (2d Cir. 2014) (per curiam).
3 449 U.S. 39 (1980) (per curiam).