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Official Opinion 2000-9

Official Opinion 2000-9

December 28, 2000
To: 

State School Superintendent
Department of Education

Re: 

Neither O.C.G.A. § 20-2-145 nor O.C.G.A. § 50-3-4.1 on its face violates the separation of church and state provisions of either the Georgia or the United States Constitution.

You have asked for my opinion whether O.C.G.A. § 50-3-4.1, allowing the display of the motto “In God We Trust” in public school classrooms, is in violation of the Georgia or United States Constitution. You have also asked whether the “respect for the creator” portion of the character education program authorized by O.C.G.A. § 20-2-145 and the Georgia Board of Education’s curriculum violates either the state or federal constitutional principles of separation of church and state. It is my opinion that neither O.C.G.A. § 20-2-145 nor O.C.G.A. § 50-3-4.1 on its face violates the separation of church and state provisions of either the Georgia or the United States Constitution.1

For purposes of these questions, I am treating the First Amendment to the United States Constitution as having no less or more protection than the parallel provisions in the Georgia Constitution.2 The appropriate standard for judging whether a statute or practice that may implicate religion in public education comports with the Establishment Clause of the First Amendment is found in the case of Lemon v. Kurtzman, 403 U.S. 602, 612-13(1971). See also Bown v. Gwinnett County, 112 F.2d 1464 (11th Cir. 1997); Smith v. Bd. of Sch. Comm’rs, 827 F.2d 684, 689 (11th Cir. 1987)3 .

In the Lemon case, the Supreme Court of the United States set out a three-part test by which courts may analyze governmental conduct under the establishment clause. In order to be declared constitutional, the activity (1) must have a secular purpose, (2) must not have as its principal or primary effect advancement or inhibition of religion, and (3) must not foster "an excessive governmental entanglement with religion." Lemon, 403 U.S. at 612-13; 1999 Op. Att’y Gen. 99-16.

Addressing first the issue of whether a poster may be displayed in the classroom with the motto “In God We Trust,”4 I note that the motto appears on United States coins and currency and is recognized by federal statute as our national motto. See 36 U.S.C. § 186. It has been upheld as constitutional in that context. See Aranow v. United States, 432 F.2d 242 (9th Cir. 1970). It has also been upheld in the context of a classroom display. See Opinions of the Justices, 228 A.2d 161 (N.H. 1967). I find no reported case in which it has been held unconstitutional.

It appears from the scarcity of precedent that there has been no serious contention that our national motto is unconstitutional. In the words of Justice Brennan, “[t]he truth is that we have simply interwoven the motto so deeply into the fabric of our civil polity that its present use may well not present that type of involvement which the First Amendment prohibits.” Abington Sch. Dist. v. Schempp, 374 U.S. 203, 303 (1963)(Brennan, J., concurring). The motto and patriotic recitations and songs such as “God Bless America” and the Declaration of Independence are noted in many First Amendment cases as illustrative of the principle that our nation has a religious history and that references to a deity or a supreme being are part of our national culture. See, e.g., Marsh v. Chambers, 463 U.S. 783, 790 (1983); Zorach v. Clauson, 343 U.S. 306, 313 (1952); Sands v. Morongo Unified Sch. Dist., 809 P.2d 809, 890 (Cal. 1991)(Lucas, C.J. concurring); Opinions of the Justices, 228 A.2d 161 (N.H. 1967).

Therefore, I conclude that O.C.G.A. § 50-3-4.1 allowing for a poster in the classroom with the motto “In God We Trust” printed on it is not facially unconstitutional. There is, of course, the possibility that the poster may be used in such a way as to violate the principle of separation of church and state, for instance, in a coercive way. See, e.g., Doe v. Beaumont Indep. Sch. Dist., 173 F.3d 274 (5th Cir. 1999) and note 1 supra.

The more difficult question is whether the character curriculum is constitutional. Official Code of Georgia Section 20-2-145 requires the State Board of Education to develop a “comprehensive character education program” for levels K-12 focusing on the students’ development of 27 character traits including “respect for the creator.” In August of 1997, shortly after the statute took effect, the State Board of Education developed a policy implementing this statutory requirement. This policy, entitled “Values and Character Education Implementation Guide,” explains the character trait as follows:

Respect for the creator: our most basic freedoms and rights are not granted to us from the government but they are intrinsically ours; i.e., the Constitution does not grant Americans the right of freedom of speech, it simply recognizes that each of us is born with that right. This is to say that the founders of the republic recognized a higher authority, a power greater than themselves that endowed every human being with certain unalienable rights that no government or legal document could ever revoke or take away. In the Declaration of Independence Thomas Jefferson names this life force that permeates the universe and from which our unalienable rights stem the “creator”, “nature’s God”, and the “supreme judge of the world”. If we are to respect life, the natural rights of all people and the authority which the founders based their legal opinions on concerning our separation from Great Britain then there must be a respect for that creator from which all our rights flow. This cannot be interpreted as a promotion of religion or even as a promotion of the belief in a personal God, but only as an acknowledgment that the intrinsic worth of every individual derives from no government, person or group of persons, but is something that each of us is born with and which no thing and no one can ever deprive us of.

Although inclusion of the trait “respect for the creator” in the character curriculum does not have the historic acceptance accorded to the national motto, it appears not to have a religious effect, especially as interpreted by the State Board’s “Values and Character Education Implementation Guide.” It does not endorse any particular theory of creation, nor does it disparage those who do not hold a belief in creation. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 56 (1985).

In addition, “respect for the creator” is not misplaced in ethics or character education. In the study of comparative religion, the “myths, stories or theories regarding the birth or creation of the universe” are termed “cosmogony.” Eliade, The Encyclopedia of Religion, Macmillan, 1987, Vol. 4, p. 94. Cosmogonic or creation myths, stories and theories serve as a “background and context for thinking about” ethics or the “proper, appropriate and right conduct of a community.” Id. at 99. Thus, although beliefs may differ about creation, the subject itself supports character principles and ethics. Courts have recognized that part of the legitimate purpose of public education is teaching morals or values. See Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1068 (6th Cir. 1987). See also Doe v. Beaumont Indep. Sch. Dist., 173 F.3d 274 (5th Cir. 1999) (although morals might be taught they cannot be taught by special panels of clergy brought in specifically for that purpose).

The case of Smith v. Bd. of Sch. Comm’rs, 827 F.2d 684 (11th Cir. 1987), is particularly instructive on this issue. Parents challenged Alabama’s textbooks on the ground that they had the effect of advancing “secular humanism” and disparaging religious beliefs. The Court of Appeals for the Eleventh Circuit held that a school curriculum that did not affirmatively balance “secular humanism” ideas with religious ideas did not violate the establishment clause. In the context of that holding, the court recognized the broad discretion given to schools to choose an appropriate curriculum and the premise that courts should not intervene unless “basic constitutional values are ‘directly and sharply implicate[d].’” 827 F.2d at 689. On the other hand, courts must give consideration to the influence that schools have over children requiring “scrupulous compliance with the establishment clause in public schools.” Smith, 827 F.2d at 689, quoting Epperson v. Arkansas, 393 U.S. 97, 104-05 (1986). In examining the textbooks at issue in Smith, the court found that they attempted to teach values such as “independent thought, tolerance of diverse views, self-respect, maturity, self-reliance and logical decision-making” and that that was an appropriate secular purpose. 827 F.2d at 689. The court also found that the mere fact that some of the values were “consistent with” either secular or theistic values did not constitute an unconstitutional advancement of religion. Id.

In the issue at hand, there is some consistency between the respect for the creator value and some religious beliefs. However, in my view those similarities are not sufficient to generate a finding that the statute is unconstitutional, to conclude it has the principal or primary effect of advancing or inhibiting religion as prohibited in Lemon, or to conclude that the statute endorses some religious views over others as prohibited in County of Allegheny v. ACLU, 492 U.S. 573, 592-93 (1989).

I have reviewed the legislative history of the statute and I find no evidence of a religious purpose.5 Further, this does not appear to be in that category of cases in which the reviewing court found that the purpose was religious in spite of a denial of religious intent by the implementing authority. See Santa Fe Indep. Sch. Dist. v. Doe, __ U.S. __, 120 S. Ct. 2266 (2000) (student prayer at football games); Stone v. Graham, 449 U.S. 39, 41 (1980) (posting of Ten Commandments in public classroom).

As to the final Lemon consideration, whether the statute promotes excessive entanglement with religion, in my opinion it meets constitutional muster in that respect as well. In Lemon, the state statutes under consideration required extensive state regulation and monitoring in an attempt to insure that education paid for by state funds but delivered in church schools remained secular in nature. This was deemed to lead to “excessive entanglement.” Lemon, 403 U.S. at 621. The statute at issue here is not comparable. Further, the Supreme Court has held in the recent case of Agostini v. Felton, 521 U.S. 203 (1997) that the “excessive entanglement” prong of Lemon was only another means of determining whether there was an impermissible religious effect. Id. at 236. Accord Mitchell v. Helms, __U.S. __, 120 S. Ct. 2530 (2000).

Based on the above discussion and analysis, it is my official opinion that neither the provisions of O.C.G.A. § 20-2-145 nor those of O.C.G.A. § 50-3-4.1 are, on their face, in violation of the principles of separation of church and state in either the Georgia or the United States Constitution.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General


1This opinion does not reach the question of whether an “as applied” challenge against any particular school system might be successful. As noted in 1999 Op. Att’y Gen. 99-16, instruction in the classroom is controlled largely by the teacher and by the local school board. It is possible that the teaching of the character curriculum and national motto in a particular classroom may be implemented in such a manner that it generates a successful “as applied’ challenge. However, the statutes themselves are not facially violative of the establishment clause.

2The Georgia Constitution has several provisions dealing with the prohibition against the establishment of religion and freedom of religion. See GA. CONST. art I., § 2, 7; art. I, § 1, 2 and 4. The concept at issue here, however, is not aid to religion but rather is the prohibition against endorsing a particular religious belief in public schools and is protected by the provisions of GA. CONST. art. I, § 1, 4. See Wilkerson v. City of Rome, 152 Ga. 762 (1921).

3The Smith case emphasizes that some First Amendment cases have been decided without reference to the Lemon test. However, the Supreme Court has “´particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children.’ Grand Rapids School District v. Ball, 473 U.S. 373, 383 . . . .” See also Santa Fe Indep. Sch. Dist. v. Doe, __ U.S. __, 120 S. Ct. 2266 (2000).

4That practice is authorized in public schools by O.C.G.A. § 50-3-4.1.

5O.C.G.A. § 20-2-145 was introduced as House Bill 393 and enacted at 1997 Ga. Laws 1386. The record of its passage through the Georgia General Assembly may be found in the House Journal at 258, 288, 670, 957, 2300, and 2632 and the Senate Journal at 607, 608, 1014, 1072, 1480, 1564 and 2012. The only significant legislative events are that there was a proposed amendment in the Senate to substitute “respect and tolerance for the diversity of religious beliefs” for the “respect for the creator” trait. That amendment was withdrawn and a severability provision was added. 1997 Georgia Senate Journal at 1564, 1565.