“In God We Trust” and the Establishment Clause

No one really knows what started the Great Islamic Conversion of Arkansas, but once it got going, it was unstoppable. Not that everyone in Arkansas became a Muslim, of course. There remained some atheists, agnostics, and none-of-the-aboves, especially around centers of higher learning and middle learning. Steadfast Christians remained in greater numbers than the non-believers, although they held a plurality in only three of the less populous counties. Many Christians moved out of state. 

That North Dakota went through its neo-pagan revival starting just two months later, has, of course, multiplied the conspiracy theories – theories involving exotic mixtures of political, religious and extraterrestrial agents with pharmacological, viral-genetic, and hypnotic agencies.  As there is precious little hard evidence supporting any of these theories, I will not here descend into that altercation, which is so completely consuming our cable news and internet. 

My interest, instead, is in a relatively minor legal issue arising from the new state mottos of Arkansas and North Dakota. The latter state has adopted: “In Gods We Trust,” while the Arkansans prefer “In Allah We Trust.”  Both states display their new mottos prominently on official documents, and in state offices, drivers’ license bureaus and court rooms.

The operative statute of neither state has a very well-documented  legislative history. The media, however, especially the trans-Arkansas media, publicized widely the views of one Arkansas state senator to the effect that just as there was a competition for hearts and minds between “godless communism and the world of democracy and faith” in the 1950s, leading to our national motto, there was now, what he called a “friendly world-wide competition” between Islam and its Abrahamic rivals.  “Although,” he said, “really everyone believes in one and the same deity, it is only right that we should refer to that deity in which we trust by the name that most of us in this state always use.” 

In North Dakota the new motto passed with almost no debate.  A favorite refrain was that “In Gods We Trust” was broadly inclusive, as nearly every North Dakotan does, indeed, trust in one or more of the gods, some, still, in that of the Hebrew or Christian Bibles.  

There are always people who are cussedly contentious, however, and law suits challenging the new state mottos were brought in both states citing the establishment clause of the U.S. Constitution as incorporated against the states by the Fourteenth Amendment.  In Arkansas a coalition of atheists, Jews, Christians, and Hindus met to discuss drafting a complaint. A similar group, with the addition of Muslims, but the absence of some Hindus, met in Bismarck. In both cases, however, it eventuated that the factions fractured, each deciding it could not live with some allegations for the complaint insisted upon by some of the others. 

The legal strategy of both states in defense of their mottos was basically the same. They observed that every court that has ever considered an establishment clause challenge to “In God We Trust” has found the challenge very nearly frivolous.  “It is quite obvious that the national motto and the slogan on coinage and currency In God We Trust has nothing whatsoever to do with the establishment of religion.” Aronow v. United States, 432 F.2d 242, 243 (9th Cir.1970).The declaration of trust in God  has “No theological import.” Newdow v. Lefevre, 598 F 3^rd 638, 645-46 (9^th Cir. 2010).  It is merely one among many benign “conventional nonsectarian public invocations of the deity.”  American Civil Liberties Union of Illinois v. City of St. Charles, 794 F.2d 265, 271 (7^th Cir. 1986). It is one of the “ways in which secular symbols give a nod to the nation’s religious heritage.” Mayle v. United States of America, (7^th Cir. 5/31/18). 

Both attorneys general were particularly scornful of the challenges by the ACLU, Freedom from Religion Foundation, and the Nontheistic Satanists, whose claims, they said were the oldest of hat, having already been found meritless in cases not capable of being distinguished.

To the extent that the courts have tended recently to emphasize heritage, the two states argue that an establishment-clause-compliant nod can only be given towards religious heritage neutrally understood, and that the language of their mottos, like the majority faiths of their citizens, fall within this country’s religious heritage when broadly enough construed to meet the requirement of neutrality.  

The opponents of the new mottos, of course, denied in the strongest terms that “In Gods We Trust” and “In Allah We Trust” have the remotest legal similarity to “In God We Trust.” The Christian briefs, in particular, asserted that the North Dakota motto was a naked endorsement of pagan idolatry, and that of Arkansas a blatant attempt to evangelize for Islam.  To celebrate trust in God, they said was non-sectarian, non-theological, and indeed secular, whereas trust in gods or in Allah was the total opposite.  (At least the Christian lawyers said in court that “In God We Trust” has only secular and no theological meaning. Whether they said the same thing in the privacy of their own sanctuaries is not known to this reporter.)

An outlier argument, although one very popular in 48 states, was that the religious heritage to be nodded to was specifically a Christian heritage, disqualifying both the new mottos. The brief was later amended to read “Judaeo-Christian.” Neutrality among right-thinking people is all that is required for heritage to survive establishment clause scrutiny, it avers.