Vol. 11 No. 5 - Published by the Freedom From Religion Foundation, Inc. - June/July 1994
"Protecting The Rights Of The Majority"
The State Supreme Court of Wisconsin ruled that a village-owned, maintained, and lighted creche in a public park is constitutional, in a shocking 5-2 decision issued on June 22.
The State Supreme Court upheld decisions by the Court of Appeals and the trial court, approving a creche owned and erected by the village of Waunakee, Wisconsin, for the past 40 years. The seven foot tall display includes a star of Bethlehem hoisted atop a flagpole. The Foundation complained about the creche in 1990, joined by Waunakee residents Patricia and Joseph King. The Foundation has funded the lawsuit on their behalf. Since filing the challenge, the Kings felt compelled to sell their Waunakee home and leave the village, following harassment, shunning and threats.
The 36-page decision, written by Justice Roland Day, was characterized as "a rambling opinion" in a news story by Cary Segall of The Wisconsin State Journal. Reporter Pat Schneider of The Capital Times concurred with that assessment, adding in her write-up that the ruling is unusual in that it is "studded with exclamation points."
Day wrote that the decision is a "vindication" for "the rights of the majority," referred to the "historical origin" of the birth of Jesus, and compared a creche to "ceremonial deism."
Day digressed for four pages over the origins and history of the creche, even referring to "baby Jesus." "It almost reads like a Sunday school lesson," staff member Dan Barker told The Capital Times. Day even commented on and commended the "pervasive religious atmosphere" and "many prayers" at the 50th anniversary commemoration of D-Day in Normandy.
Day interpreted the County of Allegheny v. ACLU case from 1988--in which a divided high court nixed a creche on the steps of the Pittsburgh courthouse but permitted a menorah next to a Christmas tree on public property--as permission for the village of Waunakee to erect its annual creche. The high court had ruled that the menorah with the Christmas tree was permissible since it represented diverse viewpoints. The Wisconsin Supreme Court claimed that this diversity was also displayed in Waunakee, since the village lighted some evergreens growing in the park, and had added a "disclaimer," following the Foundation's complaint, based on a sign posted by the Pittsburgh menorah. ("During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.")
The village of Waunakee adopted the wording of this disclaimer, but added this phrase: "whatever your religion or beliefs enjoy the holiday."
"This is like saying whatever your beliefs, this is a Christian park. It has a nose-thumbing, mocking tone," noted Foundation president Anne Nicol Gaylor. Attorney Bronson LaFollette, former Wisconsin Attorney General, argued on the Kings' behalf that the disclaimer "runs afoul of the Endorsement test" by excluding nonbelievers, citing standard dictionary usage of the word "belief." Day dismissed this argument with a terse: "Some nits aren't worth picking!"
Ironically, while insisting that "a majority of the present court would approve the Waunakee holiday display," Day mainly quoted U.S. Supreme Court Justice Kennedy, who issued a bitter minority dissent over the finding in Allegheny that a city-owned creche display was unconstitutional.
Day also wrote that the Waunakee case was similar to the Lynch case, in which the U.S. Supreme Court ruled ten years ago that a small city-owned creche was permissible among a huge display of such items as Santa, reindeer and candy canes in Pawtucket, Rhode Island. However, the Waunakee creche stands alone with its star, manger, lights and "disclaimer."
He roundly rejected the plaintiffs' argument that the village creche violates Art. I, sec. 18 of the Wisconsin Constitution prohibiting government from compelling citizens to support any place of worship, to show any preference by law for religious establishments or modes of worship, or from drawing any money from the treasury for the benefit of religious societies. The village spends at least $500 a year in lighting and maintaining the display.
He concluded the decision with his "vindication" of the "rights of the majority."
A thorough dissent written by Chief Justice Nathan Heffernan (printed in full below), joined by Justice Shirley Abrahamson, eloquently charged that the Wisconsin Supreme Court would be violating "our oath to support the constitution of Wisconsin" to conclude that the more stringent state constitution must be interpreted identically with the Establishment Clause of the First Amendment.
"It cannot be disputed that the creche is a religious symbol portraying an event central to the Christian faith. Christians believe that God sent his son, Jesus Christ, into the world to be the Savior. The annual celebration of Christ's birth is one of the holiest days of the year for Christians. Christians believe that Mary gave birth to Jesus Christ in a stable in Bethlehem. The creche is a symbol of Christ's birth and has no secular connotations. Indeed, any suggestion that the creche is secular in nature denigrates both the religious symbol and the Christian faith."
Heffernan agreed with Bronson Lafollette's argument that the case should be decided based on the state constitution, not on the federal constitution, and found the village-supported creche an unconstitutional "expression of preference for one religion" and an unconstitutional expenditure of tax money. He wrote: "The religious freedom of all citizens is threatened when the government expresses a preference for any one religious practice."
Commenting to the Wisconsin State Journal, Anne Gaylor called the decision an "outrageous" ruling of a "right-wing religious court."
"Justice Day had the audacity to talk about protecting the rights of the majority when it was the minority who were harassed."
She announced the Foundation will be seriously considering whether to fund an appeal to the U.S. Supreme Court, the only remedy left to the Kings.
The Capital Times editorialized on June 24 against the court, and the blurring of "the lines between the sacred and the secular." Criticizing Day for calling the creche situation an example of "how the courts must enforce and protect even the rights of the 'majority,'" the Capital Times pointed out: "Actually, the Bill of Rights was crafted to protect the rights of the minority from tyranny by the majority."
Joining the outcry against the creche decision was The Milwaukee Journal, which said the village-owned creche "telegraphs insensitivity to members of other religions and to nonbelievers as well."
Excerpt of Majority Opinion:
"Vindication of Rights of the Majority
What we have in the Waunakee case is a recognition that Christmas has its historical origin in the birth of Jesus. As was noted in Lynch recognition of that history in a nativity scene constitutes a "secular purpose" that meets the requirements of "secular purpose" set forth in Lemon, cited in Lynch. What we see is over a thousand year history of a mixture of pre-Christian elements and cultural additions to the holiday that has often converted originally "religious" personages and symbols into secular ones through usage.
Out of this mixture created by society's desire to celebrate its heritage--and its hopes--we have seen that some "religious" elements that are part of the history do in fact meet the most recent interpretation of the Establishment Clause, i.e., the endorsement test. Recognition is not the same as endorsement. The "salute to liberty" sign in Waunakee as in Pittsburgh makes that point clear.
This vindication is an example of how courts must enforce and protect even the rights of the "majority". . . .
Vol. 11 No. 5 - Published by the Freedom From Religion Foundation, Inc. - June/July 1994
"Waunakee Pays Homage To One Religious Faith"
Patricia Smith King, and Joseph J. King, Jr., Plaintiffs-Appellants-Petitioners
Village of Waunakee, a Wisconsin Municipal Corporation, Maureen O'Malley, Jeff Murphy, Dennis Sweno, Patrick Gile, Patrick Strickland, Paul Holmes, and Suzanne Matiash, Defendants-Respondents.
By Chief Justice Heffernan (dissenting)
From November 29, 1990, to January 3, 1991, the village of Waunakee displayed a seven by seven and one-half foot creche in a city park, near lighted evergreen trees and a sign saluting liberty. The creche is a religious symbol portraying an event central to the Christian faith. By displaying the creche in these circumstances, the village of Waunakee pays homage to one religious faith, thereby expressing a preference for that faith. This action is in violation of article I, section 18 of the Wisconsin Constitution, which states, "[N]or shall . . . any preference be given by law to any religious establishments or modes of worship." Because the majority concludes otherwise, I dissent. Because I have determined that the display is in violation of the Wisconsin Constitution, I do not discuss whether the display also violates the United States Constitution.
This court has long concluded that article I, section 18 of the Wisconsin Constitution provides greater protection of religious liberty than do the religion clauses in the First Amendment to the United States Constitution. See State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 115 N.W.2d 761 (1962); State ex rel. Warren v. Reuter, 44 Wis. 2d 201, 227, 170 N.W.2d 790 (1969). See also State v. Doe, 78 Wis. 2d 161, 171, 254 N.W.2d 210 (1977), which states that "it is the prerogative of the State of Wisconsin to afford greater protection to the liberties of persons within its boundaries under the Wisconsin Constitution than is mandated by the United States Supreme Court under the Fourteenth Amendment."
Adopting the analysis set forth by the court of appeals, the majority states that the United States Supreme Court cases interpreting the Establishment Clause are to be used to interpret article 1, section 18. By this statement, the court decides that the protection provided by article 1, section 18 is no greater than that provided by the Establishment and Free Exercise Clauses. For support, the court of appeals discussion, which the majority adopts, quotes State ex rel. Warren v. Nusbaum, 55 Wis. 2d 316, 332, 198 N.W.2d 650 (1972). Therein, this court stated, "While [the] words used may differ, both the federal and state constitutional provisions relating to freedom of religion are intended and operate to serve the same dual purpose of prohibiting the 'establishment' of religion and protecting the 'free exercise' of religion."
The majority misinterprets Warren v. Nusbaum. The language quoted above does not support the conclusion that cases interpreting the Establishment Clause of the United States Constitution de�ne the extent of protection under the Wisconsin Constitution. Even assuming the general purposes of the United States and Wisconsin Constitutions are identical, the Wisconsin Constitution contains language indicating that the means used to achieve the purposes are different. Article I, section 18 is more prohibitive than the First Amendment of the United States Constitution. State ex rel. Warren v. Reuter, 44 Wis. 2d at 227. Furthermore, in State ex rel. Warren v. Nusbaum, this court had already determined that the challenged state action violated the United States Constitution before it considered the Wisconsin Constitution. Thus the discussion, that the two constitutions have similar purposes, was nothing more than an alternative way of stating that the Wisconsin Constitution cannot be interpreted to provide a lesser degree of protection than does the United States Constitution.
In two cases decided after State ex rel. Warren v. Nusbaum, the court cites the "dual purpose" language and then applies United States Supreme Court cases to interpret the Wisconsin Constitution. See State ex rel. Wisconsin Health Facilities Authority v. Lindner, 91 Wis. 2d 145, 163-64, 280 N.W.2d 773 (1979); State ex rel. Holt v. Thompson, 66 Wis. 2d 659, 675-78, 225 N.W.2d 678 (1975). These cases do not stand for the proposition that the Wisconsin Constitution should always be interpreted by looking solely to cases interpreting the United States Constitution. Both decisions acknowledge that the Wisconsin Constitution contains more speci�c language. Furthermore, in recognition of the differing language, the court in Holt brie�y considers each clause of article I, section 18. Even in the present case, the majority discusses each clause of article I, section 18, although the discussion contains no analysis and is merely conclusory.
We would have to ignore the plain language of the constitutional provisions to conclude that the protection accorded under article I, section 18 is exactly the same as that provided by the First Amendment to the United States Constitution. The language of these two provisions is very different. Article I, section 18, provides:
"The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the bene�t of religious societies, or religious or theological seminaries."
In contrast, the religion clauses in the First Amendment to the United States Constitution provide:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ."
The language of these two provisions differs greatly. We violate our oath to support the constitution of Wisconsin if we conclude that the protections provided by these two provisions are identical. Existing case law does not require us to interpret the two provisions in an identical fashion. Therefore, I consider whether the village of Waunakee's display violates article I, section 18 of the Wisconsin Constitution.
I begin by considering whether the village of Waunakee shows a preference for the Christian faith by exhibiting the creche display in the present case, contrary to the portion of article 1, section 18 stating, "[N]or shall . . . any preference by given by law to any religious establishments or modes of worship." I �rst look to the nature of the symbol that the government of the village of Waunakee displays. It cannot be disputed that the creche is a religious symbol portraying an event central to the Christian faith. Christians believe that God sent his son, Jesus Christ, into the world to be the Savior. The annual celebration of Christ's birth is one of the holiest days of the year for Christians. Christians believe that Mary gave birth to Jesus Christ in a stable in Bethlehem. The creche is a symbol of Christ's birth and has no secular connotations. Indeed, any suggestion that the creche is secular in nature denigrates both the religious symbol and the Christian faith. Because it represents an event central to their faith, the creche is a symbol that Christians understandably revere.
The Waunakee creche is a traditional representation of the stable at Bethlehem and contains �gures of the baby Jesus, Mary and Joseph. Figures of the shepherds and Magi are located near the stable in an attitude of worship. Atop a nearby �agpole is a �ve-pointed star, a symbol of the star of Bethlehem.
For purposes of the No Preference Clause of the Wisconsin Constitution, the signi�cance of the creche as a religious symbol is the precise problem. The Waunakee city government is not displaying representations of the commercial aspects of the Christmas season, such as Santa Claus with his sleigh and reindeer. The city government is not exhibiting Christian symbols in a museum to explain the religious heritage of a portion of Waunakee's citizens. By displaying a seven by seven and one-half foot creche in a city park, the village of Waunakee is paying tribute to the religious aspect of Christmas and honoring the Christian faith. The residents of the village of Waunakee who worship God in religions other than Christianity, as well as residents who do not believe in God, are placed in the position of outsiders when the government pays homage to Christian symbols. Such action is an expression of preference for one religion and violates the No Preference Clause of the Wisconsin Constitution.
The three lighted evergreens near the creche do not change this display to one that is secular in nature. Even if the lighted evergreens are seen as representations of the secular aspect of Christmas, they are a secular image of the religious holiday that Waunakee honors by displaying a creche. The addition of lighted trees does not turn the display into an exhibit informing visitors of the secular and religious content of a holiday recognized in the area. The lighted trees, each over twenty feet in height, likely draw additional attention to the village government's display of a religious symbol. The trees do not nullify the message that the village is choosing to honor Christian beliefs.
The "salute to liberty" sign added by the city government also fails to negate the preference for Christianity expressed through the creche display.3 Rather, the reverse is true--a large display of an important religious symbol, near lighted trees that are at most secular representations of the same religious holiday, negates the expressed statement that the city government is saluting liberty. It seems to me that if the city government really wished to "remind us that we are the keepers of the �ame of liberty and the legacy of freedom," they would not limit the display to one religion's symbols. The Waunakee display does not send a message that we live in a pluralistic society in which each individual is free to choose his or her religious beliefs or nonbelief. Viewed as a whole, the display set out by the Waunakee city government celebrates only the liberty to practice the Christian faith.
I also conclude that the display violates the portion of article I, section 18 which states "nor shall any money be drawn from the treasury for the bene�t of religious societies . . ." The display was donated to the village of Waunakee. Nonetheless, the city must expend funds to put up and take down the display, and to store the display. Although the expenditure is not large, the clause prohibiting the drawing of money does not contain a de minimis exception. Guarantees of religious liberty should not be subject to de minimis legalistic reasoning.
When interpreting the provisions of the Wisconsin Constitution, this court also should consider the intent of the framers and the historical context in which the constitution was created. The record of the 1847 constitutional convention contains very little discussion of article I, section 18, and no discussion of the preference and funding clauses. See, 4 Constitutional Series: The Attainment of Statehood 228, 312, 334, 713-15 (Milo M. Quaife ed. 1928).
However, an early decision of this court, State ex rel. Weiss v. District Bd. of School Dist. No. Eight of Edgerton, 76 Wis. 177, 44 N.W. 967 (1890), sets forth an explanation of conditions existing at the time the framers wrote the Wisconsin constitution. The Weiss court states these conditions may have in�uenced inclusion of the article X, section 3 prohibition on sectarian instruction in public schools. I conclude that an understanding of these historical conditions is relevant any time this court interprets portions of the Wisconsin Constitution governing religious liberties. Discussing immigrants to Wisconsin, the court states:
"The immigrants came from nearly all the countries of Europe, but most largely from Germany and Ireland. As a class, they were industrious, intelligent, honest, and thrifty--just the material for the development of a new state. . . . They were also religious and sectarian. Among them were Catholics, Jews, and adherents of many Protestant sects. These immigrants were cordially welcomed, and it is manifest the convention framed the constitution with reference to attracting them to Wisconsin. Many, perhaps most, of these immigrants came from countries in which a state religion was maintained and enforced, while some of them were non-conformists and had suffered under the disabilities resulting from their rejection of the established religion. What more tempting inducement to cast their lot with us could have been held out to them than the assurance that, in addition to the guaranties of the right of conscience and of worship in their own way, the free district schools in which their children were to be . . . educated, were absolute common ground, where . . . sectarian instruction, and with it sectarian intolerance, under which they had smarted in the old country, could never enter? Such were the circumstances surrounding the convention which framed the constitution. In the light of them, and with a lively appreciation by its members of the horrors of sectarian intolerance and the priceless value of perfect religious and sectarian freedom and equality, is it unreasonable to say that sectarian instruction was thus excluded, to the end that the child of the Jew, or Catholic, or Unitarian, or Universalist, or Quaker should not be compelled to listen to the stated reading of passages of scripture which are accepted by others as giving the lie to the religious faith and belief of their parents and themselves?" Weiss, 76 Wis. at 197-198.
This history indicates that the framers wrote the Wisconsin constitution with an eye toward attracting settlers to Wisconsin by ensuring that the government would not dictate the form or content of religious practices. I believe we must interpret article I, section 18 in accord with the framer's intent of maximizing religious liberty and freedom of religious choice. The conclusion that the village of Waunakee's display violates the No Preference Clause of the Wisconsin Constitution best furthers this intent.
Weissteaches another important lesson. In Weiss, Roman Catholics with children attending the Edgerton public schools challenged the practice of Bible reading in the school. In their petition, the parents stated that teachers were reading a version of the Bible, the King James version, that Catholics believed to be an incorrect translation. Weiss, 76 Wis. at 180. Further, the Catholic parents stated that the Catholic church teaches that the Bible should not be read indiscriminately, but should be explained by teachers and interpreters authorized by the Catholic church. Id. This court held that the practice of Bible reading in public schools violates article X, section 3 of the Wisconsin Constitution, which prohibits "sectarian instruction" in the public schools. Id. at 199.
Weissteaches the important lesson that government preference for a certain religion may violate the religious liberty of members of certain denominations within Christianity, the majority religion in Wisconsin, as well as the religious liberty of members of faiths in the minority in Wisconsin. The problem with the Waunakee government's action is not that the government is setting forth a Christian symbol, but that the government is granting a preferred status to one religion rather than maintaining a neutral stance toward all. The religious freedom of all citizens is threatened when the government expresses a preference for any one religious practice. While the Waunakee display sets forth a Christian symbol, the majority's decision will allow Wisconsin governmental bodies to display symbols inconsistent with, and even hostile to, Christianity.
The interpretation of article I, section 18, of the Wisconsin Constitution set forth in this dissent is entirely consistent with every person's right, guaranteed by that same provision, "to worship Almighty God according to the dictates of conscience." Under the Wisconsin Constitution, the citizens of Waunakee have a constitutional right to display creches outside or inside their homes. They also have the right to display the Star of David and other religious symbols. The right to follow one's own chosen method of worshipping God is enhanced, not diminished, by a decision that the Waunakee government must not express a preference for the symbols of any one religion.
For the reasons set forth above, I dissent.
I am authorized to state that Justice Shirley S. Abrahamson joins this dissenting opinion.
Filed June 22, 1994
December 9, 2002
(MADISON, WI) The Freedom From Religion Foundation's gilt "Winter Solstice" sign returned today to the Wisconsin State Capitol for the seventh year in a row. It says:
"At this season of the Winter Solstice may reason prevail.
"There are no gods, no devils, no angels, no heaven or hell.
"There is only our natural world.
"Religion is but myth and superstition that hardens hearts and enslaves minds."
"We think it is important during December that the nonreligious views held by at least 14% of the Wisconsin population be represented at our State Capitol," commented Foundation president Anne Gaylor. The capitol so often is taken over with symbols and events reflecting only the majority Christian viewpoint, she pointed out.
"It is a fact that Christians stole Christmas," said Gaylor. "We don't mind sharing it with them, but we don't like this pretense that it originates with the birthday of Jesus. It is the 'Birthday of the Unconquered Sun--Dies Natalis Invicti Solis.' Christmas is a relic of sun worship.
"I have often said I am quite willing to celebrate the fun parts of anybody's holiday, but spare me the religious schmaltz," she added.
"The customs of this time of year endure because they are pleasant customs. The evergreens displayed now as in centuries past flourish when all else seems dead, and are symbols, as is the returning sun, of enduring life.
"In celebrating the Winter Solstice, we celebrate reality."
The Foundation asked the Capitol police for special attention in protecting the sign, for which the Foundation has a permit. Last year, the inserts were stolen and never recovered. The Capitol Police have surveillance videos at all exits. The back of the sign reads: "State/Church: Keep Them Separate," and carries a little caveat, advising "Thou shalt not steal."
The Freedom From Religion Foundation was founded as a national organization in 1978, working to promote freethought and keep state and church separate. It has won two significant federal court victories this year.
None of the lawsuits taken by the Freedom From Religion Foundation has been frivolous. Had the courts strictly adhered to the separation of church and state, all should have been won. In many of these cases, there was a victory at at least one court level. Even the lawsuits the Foundation has not won have been educational.
- Gaylor v. Risser
- Year of the Bible Challenged
- Round One; Ten Commandments
- Illinois Chapel Litigated
- Ten Commandments Suit in Denver
- In God We Don't Trust
- Money to Enhance Catholic Seminary
- Challenges Creche in Waunakee Park
- A Banner Case
- Christian County Sued
In 1978, the Foundation filed a federal lawsuit challenging public payment of prayers by preachers to open the Wisconsin Legislature. The case languished in federal court for five years without being heard, then was dismissed when the U.S. Supreme Court acted on a similar Nebraska case, Marsh v. Chambers (1983), finding that the prayers were "traditional." The Foundation later prevailed on the Wisconsin Senate to drop paid prayers for at least one session (1985).
Year of the Bible Challenged
The Freedom From Religion Foundation was the first to challenge a Congressional proclamation calling 1983 "The Year of the Bible." Gaylor v. Reagan was eventually dismissed as moot by U.S. District Judge James Doyle when Reagan signed the Congressional resolution. But the lawsuit commanded major headlines, TV talkshows and interviews for the Foundation. The proclamation was delayed following the filing of the lawsuit, and the version that was belatedly signed was also weaker than the original wording proposed.
Round One; Ten Commandments
In 1985 the Freedom From Religion Foundation filed a lawsuit challenging a Ten Commandments monument in a public park in La Crosse, Wisconsin, donated by the Fraternal Order of Eagles. Preparing for the trial in 1987, the attorney in the case deposed the Eagles official who came up with the idea, who explained how he and director Cecil B. DeMille got together to promote the Ten Commandments, Minnesota granite and DeMille's new epic movie. The federal judge found that, based on a technicality, the La Crosse plaintiff, a lifelong resident, schoolteacher and daughter of the former local Congressman, did not have standing to sue (1987). This case has been revisited by the Foundation with 22 local plaintiffs, and to date, the Foundation has prevailed in court.
Illinois Chapel Litigated
In 1986, the Freedom From Religion Foundation, with Illinois member Steve Van Zandt, filed a federal lawsuit to stop the building of a chapel at the Illinois statehouse. The chapel had been suggested during a visit by TV evangelist Pat Robertson. In December 1986, the Foundation won its lawsuit at the trial level, with a strong, eloquent decision. In January 1988, the appeals court inexplicably ruled that the prayer room had a "secular purpose." The silver lining: the chapel was never used.
Ten Commandments Suit in Denver
The Freedom From Religion Foundation went to Colorado state court to remove a Ten Commandments monument on Capitol grounds in Denver in 1989. The trial judge ruled that the Ten Commandments were the basis of constitutional law in 1992. In June 1993, the Foundation won the case before the Colorado Court of Appeals. The State Supreme Court in November 1994 reversed the appeals court ruling, and the U.S. Supreme Court, in 1995, refused to take the case.
In God We Don't Trust
After numerous requests by its membership, the Freedom From Religion Foundation, with its attorney Robert R. Tiernan, went to federal court in Denver challenging "In God We Trust." The Freedom From Religion sued the federal government in 1994 to have "In God We Trust" removed from currency and as our national motto. The motto was put on all paper currency by an Act of Congress in 1955. The phrase was chosen as our national motto by an Act of Congress in 1956. It first appeared on paper currency in 1957.
As evidence that the "God" motto is considered an endorsement of religion by the public, the Foundation commissioned an independent national survey. Sixty-one percent consider "In God We Trust" religious, and 71% believe it endorses a belief in God. A majority also regard the motto as preferring religion over nonreligion. (Chamberlain Research, poll of 900 adults, conducted May 18-23, 1994)
The Foundation lawsuit was dismissed by a 10th Circuit federal judge on the grounds that "In God We Trust" is not a religious phrase (1994). The Foundation appealed the dismissal to the U.S. Supreme Court, which did not take the case in 1996.
Money to Enhance Catholic Seminary
The Freedom From Religion Foundation won the first round of its lawsuit to block the state of Wisconsin from granting $100,000 to assist building a center, with no strings attached, at St. Norbert Catholic College, DePere, Wisconsin, in a lawsuit filed in 1989. The funding was part of a budgetary maneuver and no public hearing was ever held. In 1990, the Foundation won at the Dane County circuit court level. Judge Robert Pekowsky ruled that the legislation did not contain necessary safeguards to assure that the taxpayers' compulsory donation would be used only for nonreligious purposes. The articles and bylaws of incorporation for the "Norbertines" provide that it is "to be operated within the context of the teachings and doctrines of the Roman Catholic Church." In September 1991, a state appeals court overturned the St. Norbert's Victory, and in 1992, the (Catholic-dominated) Wisconsin Supreme Court refused to hear the appeal.
Challenges Creche in Waunakee Park
In early 1991, the Freedom From Religion Foundation, with two local plaintiffs, challenged a lighted nativity scene in a public park in Waunakee, Wisconsin, which was stored, lighted and maintained by the town. The Foundation appealed a decision calling the creche a "secular" symbol in 1992. In 1994, the Wisconsin Supreme Court, unbelievably, upheld the creche, saying the constitution required it to "protect the rights of the majority." The Freedom From Religion Foundation no longer takes lawsuits in state court in Wisconsin!
A Banner Case
In January 1996, the Freedom From Religion Foundation sued over the removal of its properly-placed banner, "State/Church: Keep Them Separate," from the rotunda of the Wisconsin State Capitol, at the orders of Gov. Tommy Thompson. The Foundation had obtained a lawful permit to place the sign to counter various seasonal promotions of religion at the State Capitol. The Foundation lost at the federal court level in 1996. However, the State regulations now permit moderate-sized signs.
The Foundation has erected a Winter Solstice sign every year since, which has been called a "tourist attraction."
Christian County Sued
The Freedom From Religion Foundation went to federal court in Missouri to sue over the phrase "So help me, God" on tax forms, on behalf of a plaintiff in Christian County in 1998. The case was dismissed from federal court since it concerned taxes. The Foundation refiled in state court in 1999. In April 2001, the judge ruled against the Foundation, but ordered that the plaintiff or other citizens be allowed to cross out "So help me God."
Vol. 11 No. 5 - Published by the Freedom From Religion Foundation, Inc. - June/July 1994
Filed In The United States District Court For The District of Colorado, June 8, 1994
Anne N. Gaylor; Annie Laurie Gaylor; Daniel E. Barker; Glenn V. Smith; Jeff Baysinger; Lora Attwood; The Freedom From Religion Foundation, Inc.; and The Colorado Chapter of the Freedom From Religion Foundation, Inc., Plaintiffs,
The United States of America; The Department of the Treasury; Lloyd W. Bentsen, Secretary of the Treasury; and Mary Ellen Winthrow, Treasurer of the United States, Defendants.
Plaintiffs, by and through their undersigned counsel, for a complaint against the defendants, allege as follows:
JURISDICTION AND VENUE
1. This is a civil action arising under the Constitution of the United States. This Court has jurisdiction under 28 U.S.C. 1331 and jurisdiction against the United States as a defendant under 28 U.S.C. 1346(a)(2).
2. Venue is proper under 28 U.S.C. 1391(e) because defendants are the United States, an agency of the United States, and an officer or employee of the United States acting in his official capacity and at least one of the plaintiffs is a resident of the State of Colorado.
3. Plaintiff Anne N. Gaylor is a citizen of the United States, a resident of the State of Wisconsin, and pays taxes to the United States and the State of Wisconsin. This Plaintiff is President of The Freedom From Religion Foundation, Inc. and a member of the Foundation's Board of Directors and its Executive Council.
4. Plaintiff Annie Laurie Gaylor is a citizen of the United States, a resident of the State of Wisconsin, and pays taxes to the United States and to the State of Wisconsin. This Plaintiff is Editor of "Freethought Today," the official publication of The Freedom From Religion Foundation, Inc., and is a member of the Foundation's Board of Directors.
5. Plaintiff Daniel E. Barker is a citizen of the United States, a resident of the State of Wisconsin, and pays taxes to the United States and to the State of Wisconsin. This Plaintiff is Director of Education of The Freedom From Religion Foundation, Inc. and is a member of the Foundation's Board of Directors. Plaintiff Barker is an ordained Christian minister and has Native American ancestry.
6. Plaintiff Glenn V. Smith is a citizen of the United States, a resident of the State of Colorado, and pays taxes to the United States and to the State of Colorado. This Plaintiff is a veteran of World War II, a retired railroad engineer, and is a member of The Freedom From Religion Foundation, Inc. and the Foundation's Colorado Chapter. Plaintiff Smith has Native American ancestry.
7. Plaintiff Jeff Baysinger is a citizen of the United States, a resident of the State of Colorado, and pays taxes to the United States and to the State of Colorado. This Plaintiff is a federal employee, is a member of The Freedom From Religion Foundation, Inc., and is a member and chief executive officer of the Foundation's Colorado Chapter.
8. Plaintiff Lora Attwood is a citizen of the United States, a resident of the State of Colorado, and pays taxes to the United States and to the State of Colorado, and is a member of The Freedom From Religion Foundation, Inc. and the Foundation's Colorado Chapter.
9. Plaintiff The Freedom From Religion Foundation, Inc. is a nonprofit corporation existing under the laws of the State of Wisconsin and qualified to do business in the State of Colorado. One of the Foundation's primary objectives is to promote the constitutional principle of separation of church and state and to take action against infractions of this principle. The Foundation's Colorado Chapter is an association constituted of Foundation members who promote the Foundation's objectives in the State of Colorado.
10. Defendant The United States of America is the constitutionally established government of the United States.
11. Defendant The Department of the Treasury is an executive department of the United States government.
12. Defendant Lloyd W. Bentsen is the Secretary of the Treasury. Under 31 U.S.C. 321(a)(4), the Secretary of the Treasury is authorized by law to mint coins and to engrave and print currency. One of the facilities where coins are minted is located in Denver, Colorado.
13. Defendant Mary Ellen Withrow is Treasurer of the United States. Defendant Withrow is authorized by law to sign United States currency.
CLAIM FOR RELIEF
14. Pursuant to 36 U.S.C. 186, the national motto of the United States is "In God We Trust."
15. Pursuant to 31 U.S.C. 5112, Defendant Secretary of the Treasury Lloyd W. Bentsen is authorized to mint and issue coins. 31 U.S.C. 5112(d)(1) requires that United States coins have the inscription "In God We Trust." Based on information and belief, all United States coins minted and issued by Defendant Bentsen have such inscription.
16. Pursuant to 31 U.S.C. 5114, Defendant Secretary of the Treasury Lloyd W. Bentsen is authorized to engrave and print United States currency. 31 U.S.C. 5114(b) requires that such currency have the inscription "In God We Trust." On information and belief, all United States currency engraved and printed by Defendant Bentsen has such inscription. Such currency bears the signature of Defendant Treasurer of the United States, Mary Ellen Withrow.
17. The statutes cited in Paragraphs 14 through 16 herein, and each of them, are laws respecting an establishment of religion in violation of Amendment One of the Constitution of the United States of America. Such laws (1) do not have a legitimate secular purpose, (2) have the principal or primary effect of advancing or endorsing religion, and/or (3) foster excessive government entanglement with religion.
18. The acts and practices of Defendants Bentsen and Withrow, in implementing the statutes cited in Paragraphs herein, are in violation of Amendment One of the Constitution of the United States of America in that they (1) do not have a legitimate secular purpose, (2) have the principal or primary effect of advancing or endorsing religion, and/or (3) foster excessive government entanglement with religion.
19. Defendants Bentsen and Withrow have a duty to uphold the Constitution of the United States of America. Said Defendants have violated, and continue to violate, that duty by minting and issuing coins and by printing and signing currency inscribed with the phrase "In God We Trust."
20. Plaintiffs have standing because they are injured and because their right to a government which complies with the Constitution of the United States is violated. Plaintiffs are insulted and offended by the phrase "In God We Trust" as our national motto and by its inscription on United States coins and currency. Several Plaintiffs have altered their behavior as a result of the laws and practices complained of herein.
21. Individual Plaintiffs' rights as taxpayers are violated in that the practices complained of herein result in the expenditure of taxpayer funds and the use of taxpayer assets for unconstitutional purposes.
22. The Freedom From Religion Foundation, Inc. and its Colorado Chapter have standing because (a) their members otherwise have standing to sue in their own right, (b) the interests sought to be protected are germane to the Foundation and its Colorado Chapter, and (c) neither the claims asserted nor the relief requested require the participation of individual members.
Wherefore, Plaintiffs pray for relief and judgment as follows:
I. To declare that 36 U.S.C. 186 establishing "In God We Trust" as the national motto of the United States violates the Constitution of the United States of America;
II. To enjoin the Defendants from implementing 36 U.S.C. 186;
III. To declare that 31 U.S.C. 5112(d)(1) and 5114(b) and any other law which requires or permits the phrase "In God We Trust" to be inscribed on United States coin or currency violates the Constitution of the United States;
IV. To enjoin the Defendants from implementing 31 U.S.C. 5112(d)(1) and 5114(b) or any other law that requires or permits the phrase "In God We Trust" to be inscribed on United States coin or currency;
V. To enjoin the Defendants from inscribing, signing, or allowing their signatures to appear on any United States coin or currency which is inscribed with the phrase "In God We Trust";
VI. For costs, expert witness fees, and attorneys fees as may be allowed by law;
VII. For such other and further relief as the Court may deem proper.
Attorney for the Plaintiffs