Is Arkansas's 2017 'In God We Trust' poster law (Act 911) constitutional under the First Amendment?

Plain-English summary

State Representative Les Eaves asked whether Act 911 of 2017 (now codified at Ark. Code Ann. § 1-4-133) is preempted by federal law or raises constitutional problems. Act 911 directs Arkansas public schools and state agencies to display posters with the national motto "In God We Trust" alongside the United States and Arkansas state flags, with the qualifier that the posters are paid for by voluntary donations rather than by appropriated funds.

AG Leslie Rutledge concluded the Act is constitutional. Two threads:

1. No federal preemption. No federal statute regulates state-level posters depicting the national motto. Federal law actually requires the motto to appear on coins (31 U.S.C. § 5112(d)(1)) and currency (31 U.S.C. § 5114(b)) and codifies it as the national motto (36 U.S.C. § 302), all of which support Act 911's secular framing rather than displacing it.
2. No Establishment Clause violation. Federal courts have repeatedly held that the national motto is a "secular acknowledgment" rather than a religious endorsement. The AG walked through the three Establishment Clause tests the Supreme Court has used (the coercion test from Lee v. Weisman, the Lemon test, and the endorsement test) and concluded Act 911 passes all of them. Display of the motto is not a religious observance, has a secular purpose ("fosters patriotism" and recognizes religious heritage), does not advance or inhibit religion, and would not be perceived by a reasonable observer as government endorsement of religion.

The opinion is one of the most thorough Establishment Clause analyses to come out of the Arkansas AG's office in this period, citing federal precedent on the motto's display in courthouses, schools, and on currency.

Currency note

This opinion was issued in 2018 (covering a 2017 opinion request). Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The U.S. Supreme Court's Establishment Clause jurisprudence has continued to evolve since 2018, including the 2022 decision in Kennedy v. Bremerton School District signaling movement away from the Lemon test. Anyone relying on this opinion in current litigation should also review more recent Supreme Court rulings.

Common questions

What does Act 911 actually require?

It requires local school superintendents and state agency administrators to display posters with the national motto, the U.S. flag, and the Arkansas state flag, IF funds for the posters are available from voluntary donations. The Act does not appropriate state money for the posters; it just authorizes the display when donations cover the cost.

Why isn't this an Establishment Clause violation?

Three reasons the AG cites:

1. The national motto has been federally codified as the U.S. motto since 1956 (36 U.S.C. § 302). Federal courts have repeatedly held that the motto, despite the word "God," has "nothing whatsoever to do with the establishment of religion" (Aronow v. United States).
2. The poster format embeds the motto in a civic-historical context (alongside the U.S. and state flags), which courts treat as a secular acknowledgment of religious heritage rather than an endorsement.
3. The display does not coerce participation in any religious observance.

Is this even close to being unconstitutional?

The AG's analysis suggests not. Federal courts have considered "In God We Trust" displays in school buildings (Myers v. Loudoun County School Bd.) and county offices (Schmidt v. Cline) and rejected Establishment Clause challenges in both contexts. The AG cites the federal courts' "unbroken history" of treating the motto as secular.

Could a future Supreme Court decision change this?

Possibly. The Supreme Court has signaled in cases like Kennedy v. Bremerton School District (2022) that the Lemon test is no longer controlling. But the AG's analysis here also relies on the coercion test from Lee v. Weisman and the endorsement test, both of which Act 911 also passes. The motto's long-standing acceptance as secular makes it relatively safe from challenge.

What is the practical effect of Act 911?

Schools and state agencies in Arkansas can accept donated posters and display them. They are not required to purchase them. Students and employees do not have to view them, salute them, or recite the motto. The posters are passive displays.

Background and statutory framework

The U.S. Supreme Court has used several different tests to evaluate Establishment Clause claims:

• Coercion test (Lee v. Weisman): Did the government compel citizens to engage in a religious observance? The AG focused most heavily on this test because of the school context.
• Lemon test (Lemon v. Kurtzman): Does the law have a secular purpose, neither advance nor inhibit religion, and avoid excessive entanglement?
• Endorsement test (Lynch v. Donnelly): Would a reasonable observer perceive the government's action as endorsing or disapproving religion?

The federal statutes supporting the motto's secular character:

• 36 U.S.C. § 302: codifies "In God We Trust" as the national motto.
• 31 U.S.C. § 5112(d)(1): requires the motto on coins.
• 31 U.S.C. § 5114(b): authorizes the motto on currency.

The federal statute that could heighten scrutiny if it applied:

• 42 U.S.C. § 2000cc (Religious Land Use and Institutionalized Persons Act): does not apply because Act 911 does not "substantially burden" religious exercise.

Citations

• Acts 2017, No. 911 (codified at Ark. Code Ann. § 1-4-133)
• Ark. Code Ann. § 16-123-404(a) (Arkansas religious-freedom statute)
• U.S. Const. art. VI, cl. 2 (Supremacy Clause)
• U.S. Const. amend. I (Establishment Clause and Free Exercise Clause)
• U.S. Const. amend. XIV (Fourteenth Amendment, applying First Amendment to states)
• Ark. Const. art. 2, § 24 (Arkansas freedom-of-religion provision)
• 36 U.S.C. § 302 (national motto)
• 31 U.S.C. § 5112(d)(1) (motto on coins)
• 31 U.S.C. § 5114(b) (motto on currency)
• 42 U.S.C. § 2000cc (Religious Land Use and Institutionalized Persons Act)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Lee v. Weisman, 505 U.S. 577 (1992)
• Lynch v. Donnelly, 465 U.S. 668 (1984)
• Town of Greece v. Galloway, 134 S. Ct. 1811 (2014)
• Van Orden v. Perry, 545 U.S. 677 (2005)
• Aronow v. United States, 432 F.2d 242 (9th Cir. 1970)
• Florey v. Sioux Falls School Dist. 49-5, 619 F.2d 1311 (8th Cir. 1980)
• Myers v. Loudoun County School Bd., 251 F. Supp. 2d 1262 (E.D. Va. 2003)
• Schmidt v. Cline, 127 F. Supp. 2d 1169 (D. Kan. 2000)
• Employment Division v. Smith, 494 U.S. 872 (1990)
• Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)
• Everson v. Bd. of Education, 330 U.S. 1 (1947)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-101
March 27, 2018
The Honorable Les Eaves
State Representative
102 Club Cove
Searcy, AR 72143-7440
Dear Representative Eaves:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
I am writing in response to your request for an opinion as to whether Act 911 of
2017 is preempted by federal law or subject to other constitutional concerns.
RESPONSE
Act 911 ("the Act") calls for posters with the national motto, "In God We Trust,"
to be displayed in Arkansas's public schools and state agencies if voluntary
donations are available to cover their cost. 1 In my opinion, federal law does not
preempt the Act. And the Act does not violate the Establishment Clause (or any
other clause) of the United States Constitution. The United States Supreme Court
has set forth several different tests used to analyze whether government action
violates the Establishment Clause. The Court uses different tests in different
circumstances, and it is not perfectly clear which test would be used here.
But, in my opinion, the Act likely passes constitutional scrutiny regardless of the
test applied. First, there is "nothing unconstitutional about the use of religious
subjects or materials in public schools as long as it is presented as part of a secular
program of education. "2 The Act roots the national motto firmly in a civic-
historical context by requiring that the posters display the United States and
1 See Acts 2017, No. 911 ("An Act to Amend Arkansas Law Concerning the Display of the
National Motto of the United States, 'In God We Trust'; And for Other Purposes") (to be codified
at Ark. Code Ann. § 1-4-133).
2 Florey v. Sioux Falls School Dist. 49-5, 619 F.2d 1311, 1329 (8th Cir. 1980).
323 CENTER STREET. SUITE 200 · LITTLE ROCK. ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (50 I) 682-8084
ARKANSASAG.GOV The Honorable Les Eaves
State Representative
Opinion No. 2017-101
Page 2
Arkansas flags along with the motto's text. 3 This is more than enough to alleviate
concerns under the Establishment Clause, given that the national motto has
"nothing whatsoever to do with the establishment of religion."4 And as the United
States Supreme Court has noted, the "statutorily prescribed national motto" is
consistent with (hardly contrary to) the "accommodation of religious belief'
protected by the First Amendment. 5
I find persuasive the "unbroken history of official acknowledgment by all three
branches of government of the role of religion in American life .... "6 The Act does
not establish, endorse, or promote a particular religion, nor in my opinion does it
impinge on the individual right to be free of governmental interference in such
matters. Rather, the Act "fosters patriotism" at the same time it recognizes the
"historical role of religion in our society."7 These goals are laudable, particularly
in the context of primary and secondary education that the Act specifically
references.8 For these and the reasons discussed below, I believe the Act is
constitutional.
DISCUSSION
Before analyzing the Act under the First Amendment, I will discuss briefly your
question about whether the Act is preempted by federal law. Preemption derives
from the Supremacy Clause, which states that notwithstanding the "Constitution or
Laws of any State," the federal Constitution and the "Laws of the United States
3 Acts 2017, No. 911, § 1 (to be codified in pertinent part at Ark. Code Ann.§ l-4-133(a)(l)).
4 Aronow v. United States, 432 F.2d 242, 243 (9th Cir. 1970) (considering the motto as it appears
on coinage and currency). The Act is also budget-neutral: "The copies or posters authorized
under this section shall either be donated or shall be purchased solely with funds made available
through voluntary contributions to the local school boards or the Building Authority Division of
the Department of Finance and Administration." Acts 2017, No. 911, § 1 (to be codified in
pertinent part at Ark. Code Ann. § l-4-133(b)).
5 Lynch v. Donnelly, 465 U.S. 668, 674-75 (1984).
6 Id. at 674.
7 Schmidt v. Cline, 127 F. Supp. 2d 1169, 1178 (D. Kansas 2000) (citing Gaylor v. United States,
74 F.3d 214 (10th Cir. 1996)).
8 See Acts 2017, No. 911, § 1 (to be codified in pertinent part at Ark. Code Ann. § l-4-
l 33(a)(2)(A)). The Honorable Les Eaves
State Representative
Opinion No. 2017-101
Page 3
which shall be made in Pursuance thereof . . . shall be the supreme Law of the
Land .... "9 Courts answer preemption questions by deciding if Congress has
"indicated through a statute's express language[,] or through its structure and
purpose,"10 that state laws covering the same subject matter will be superseded. In
other words, "federal law supplants state law when Congress clearly manifests that
intention"11 in a federal statute.
I do not think the preemption doctrine applies here. The Act concerns posters
depicting the national motto, along with the flags of the United States and
Arkansas, displayed in public schools and state agencies. I am unaware of any
federal law already addressing this subject matter, so I do not believe that
preemption (express or implied) is at issue. 12 The question instead is substantive:
Does the Act comflY with federal constitutional law, specifically the
Establishment Clause? 3
The answer to this question is "yes." The Establishment Clause ensures that
Congress "make[s] no law respecting an establishment of religion,"14 a protection
the Supreme Court has extended to the States by means of the Fourteenth
9 U.S. Const. art. VI, cl. 2; see generally Maryland v. Louisiana, 451 U.S. 725, 746 (1981)
("[S]tate law that conflicts with federal law has no effect.").
10 In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., 621 F.3d 781, 792 (8th
Cir. 2010) ("A state law is expressly preempted when a federal statute states the congressional
intention to preempt state law by defining the scope of preemption. Implied preemption exists
where a federal statutory or regulatory scheme is so pervasive in scope that it occupies the field,
leaving no room for state action-this is termed field preemption. Implied preemption also
occurs where state law has not been completely displaced but is superseded to the extent that it
conflicts with federal law-this is known as conflict preemption.").
11 Jones v. Vi/sack, 272 F.3d 1030, 1033 (8th Cir. 2001).
12 There are federal statutes requiring display of the motto on coins and currency. See, e.g., 31
U.S.C. § 5112(d)(l) ("United States coins shall have the inscription 'In God We Trust."'); 31
U.S.C. § 5114(b) ("United States currency has the inscription 'In God We Trust' in a place the
Secretary decides is appropriate."). But these statutes, which are evidence of the secular purpose
behind the Act, are not triggers for preemption in the context of posters displaying the motto.
13 See also note 55, infra, regarding the federal Religious Land Use and Institutionalized Persons
Act. When it applies, the federal statute requires that state laws that substantially burden
religious exercise be analyzed under a strict-scrutiny test. I believe Act 911 succeeds under the
Religious Land Use and Institutionalized Persons Act, for the reasons discussed below.
14 U.S. Const. amend. I (Religion). The Honorable Les Eaves
State Representative
Opinion No. 2017-101
Page 4
Amendment.15 The Establishment Clause has been the governing law in response
to challenges to the "posting of the national motto 'In God We Trust' in public
school buildings,"16 as well as the "display[], in the offices of the County
Treasurer, [of] posters bearing the words 'In God We Trust."'17 And courts have
applied the Establishment Clause to disputes involving the national motto as it
appears on currency.18 In my opinion, the Establishment Clause is the
constitutional provision a court would address when analyzing the Act's
requirement that
If funds ... are available, local school superintendents
of the public schools in this state and the
administrative officials of state agencies shall place a
durable poster or framed copy representing ... [t]he
national motto of the United States, "In God We
Trust"; ... [a]n accurate representation of the United
States flag, which shall be centered under the national
motto; and .. . [a]n accurate representation of the
Arkansas state flag. 19
Settling on the relevant constitutional prov1s1on is not the end of the matter,
however. Establishment Clause cases have generated a number of different tests
for determining whether government actions are unconstitutional. And while each
test warrants discussion, I believe the one most applicable to the Act is the
"coercion" test articulated in Lee v. Weisman.20 This case involved a public
middle school that invited a rabbi to lead students in prayer as part of its
graduation ceremony. The Court held that the school could not force students
15 See Everson v. Bd. of Education, 330 U.S. 1, 14-15 (1947).
16 Myers v. Loudoun County School Bd., 251 F. Supp. 2d 1262, 1263 (E.D. Va. 2003) (finding no
Establishment Clause violation and dismissing that claim, among others).
17 Schmidt, 127 F. Supp. 2d at 1178 (same).
18 See, e.g., Newdow v. Peterson, 753 F.3d 105, 108 (2d Cir. 2014) (noting that the Supreme
Court has "recognized ... that the motto, and its inclusion in the design of U.S. currency, is a
'reference to our religious heritage"' that does not violate the Establishment Clause) (quoting
Lynch, 465 U.S. at 676).
19 Acts 2017, No. 911, § 1.
20 505 u .s. 577 (1992). The Honorable Les Eaves
State Representative
Opinion No. 2017-101
Page 5
"in[to] the dilemma of participating ... or protesting" a ceremony that amounted to
a "religious program carried on by government .... "21 That is, the coercion test
prohibits the ~overnment from "compell[ing] its citizens to engage in a religious
observance."2 And the coercion test is particularly suited to religious-freedom
questions arising in primary and secondary schools, venues where courts are
"particularly vigilant in monitoring compliance with the Establishment Clause."23
The second test, arguably "suited to cases challenging statutes and policies, rather
than specific government actions,"24 is known as the Lemon test. It comes from a
case involving state statutes that directed public funds to private (including
parochial) schools.25 Under the Lemon test, a statute violates the Establishment
Clause if it falls short of one or more prongs. The statute ( 1) must have a secular
purpose, (2) must have a principle or primary effect that neither advances nor
inhibits religion, and (3) must not foster excessive government entanglement with
religion.26 The Lemon test appears to have fallen out of favor,27 particularly in the
education context where the coercion test predominates. But because Lemon
could apply to the Act as a statute (as opposed to a "government action[]"28), it
cannot be completely discounted.
21 Id. at 588, 593 (internal quotation omitted).
22 Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811, 1825, 28 (2014) (holding that a
municipality "does not violate the First Amendment by opening its meetings with prayer that
comports with our tradition and does not coerce participation by nonadherents."). The coercion
test tracks the freedom-of-religion section of the Arkansas Constitution, which states in part that
"no man can ... be compelled to attend, erect, or support any place of worship; or to maintain any
ministry against his consent." Ark. Const., art. 2, § 24.
23 Van Orden v. Perry, 545 U.S. 677, 690-91 (2005) (internal quotation omitted); see also Lee,
505 U.S. at 592 ("[T]here are heightened concerns with protecting freedom of conscience from
subtle coercive pressure in the elementary and secondary public schools.").
24 Roark v. South Iron R-I School Dist., 573 F.3d 556, n.4 (8th Cir. 2009).
25 Lemon v. Kurtzman, 403 U.S. 602 (1971).
26 See id.
27 See Utah Hwy. Patrol Ass 'n v. Am. Atheists, Inc., 565 U.S. 994 (2011) (Thomas, J., dissenting
from denial of certiorari) ("Indeed five sitting justices have questioned or decried the ...
continued use" of the Lemon test.).
28 Roark, 573 F.3d 556 at n.4. The Honorable Les Eaves
State Representative
Opinion No. 2017-101
Page 6
Finally, the Supreme Court developed what is known as the "endorsement" test,
under which the Establishment Clause is violated if a "reasonable observer" would
conclude that a governmental action has the "effect of communicating a message
of government endorsement or disapproval of religion. "29 Some courts "treat the
endorsement test as a refinement of Lemon's second prong. "30 In fact, courts have
merged the endorsement test and Lemon specifically to "ensure that any coercion
associated with [an] 'In God We Trust' display has been given an appropriate
level of consideration. "31
Having set out these tests (with a focus on coercion), I can now examine the Act in
terms of a potential Establishment Clause challenge. Such a challenge would face
the presumption from both Arkansas and federal law that state statutes "are ...
constitutional, and the burden of proving otherwise" falls to the plaintiff.32 As
noted above, it is my opinion that a challenge to the Act could not overcome this
burden under any of the three tests.
Beginning with coercion, the question is whether the Arkansas legislature has
"compelled [] citizens to engage in a religious observance"33 in situations where
the Act applies. Because it calls for display of the national motto, however, I do
not believe the Act involves "religious observance" at all. Rather, "In God We
Trust" is "well known as being tied to our Nation's history and government .... "34
The phrase was federally codified as the motto in 1956.35 It is ubiquitous from use
29 Lynch v. Donnelly, 465 U.S. 668, 687, 690 (1984) (O'Connor, J., concurring) (explaining that
the reasonable observer "must be deemed aware" of a challenged act's "history and context.").
30 Mellen v. Bunting, 327 F.3d 355, 371 (4th Cir. 2003).
31 Lambeth v. Board of Com 'rs of Davidson County, N.C., 321 F. Supp. 2d 688, 695 (M.D.N.C.
2004) (considering an inscription of"In God We Trust" on the facade of a municipal building).
32 Reinert v. State, 348 Ark. 1, 4, 71 S.W.3d 52, 53-54 (2002); see also Fitz v. Do/yak, 712 F.2d
330, 333 (8th Cir. 1983) ("Since a presumption of constitutionality attaches to state legislative
enactments ... a party seeking to challenge a statute under this standard bears a heavy burden.")
(internal citation omitted).
33 Galloway, 134 S. Ct. at 1825.
34 Am. Humanist Ass'n v. Maryland-Nat'! Capital Park & Planning Comm'n, No. 15-2597, 2017
WL 4654897 at 8 (4th Cir. Oct. 18, 2017).
35 See 36 U.S.C. § 302 ("'In God we trust' is the national motto."). The Honorable Les Eaves
State Representative
Opinion No. 2017-101
Page 7
on U.S. currency.36 "In God We Trust," or a variation, appears on the official
flags of three U.S. states.37
Considering whether posters with "In God We Trust" were permissible in a county
treasurer's office, a Kansas district court emphasized that "the national motto has a
secular purpose, symbolizes the historical role of reliiion in our society, fosters
patriotism, and expresses confidence in the future ... .''3 Likewise, the "display of
the words 'In God We Trust' on the front facade"39 of a municipal building was
not "inherently religious, particularly when considered in light of its history as this
nation's official motto."40
And when deciding if a "school may accept posters ... bearing the slogan 'In God
We Trust: The National Motto Enacted by Congress in 1956,' emblazoned over ...
a waving American flag,"41 the Eastern District of Virginia found:
[T]he posters at issue are secular and not religious.
Indeed, aside from the inclusion of the word 'God' as a
portion of the national motto, the posters are wholly
devoid of any religious reference or symbolism.
Furthermore, the national motto's reference to God
36 See note 12, supra.
37 See websites for the State of Florida, at http://dos.myflorida.com/florida-facts/florida-state-
symbols/state-flag/ (last visited November 9, 2017); Georgia, at https://georgia.gov/georgia-
symbols (last visited November 9, 2017); South Dakota ("Under God the People Rule"), at
https://boa.sd.gov/divisions/property/flags/flag_history.aspx (last visited November 9, 2017).
38 Schmidt, 127 F. Supp. 2d at 1178-79 (citing Gaylor v. United States, 74 F.3d 214 (10th Cir.
1996)). This assessment of the motto as a civic sentiment is "no different than the ruling of every
other circuit which has addressed this issue." Schmidt, 127 F. Supp. 2d at 1179 (citing Aronow,
432 F.2d 242).
39 Lambeth, 321 F. Supp. 2d at 694.
40 Id at 698.
41 Myers, 251 F. Supp. 2d at 1274. The Honorable Les Eaves
State Representative
Opinion No. 2017-101
Page 8
does not make the statement religious as opposed to
secular.42
The Act is constitutional under the coercion test, in my opinion, even in light of
"particular concerns that arise in the context of public elementary and secondary
schools."43 In fact, courts would likely conclude that posters bearing the national
motto, the national flag, and the Arkansas flag could not be coercive because their
content is primarily secular. Certainly, the national motto "has 'spiritual and
psychological value' and 'inspirational quality. '"44 But it is not "theological or
ritualistic."45 So display of the posters described in the Act will not create the
dilemma of participating in, or protesting, a religious observance. The national
motto is "simply interwoven ... so deeply into the fabric of our civil polity" that
its display should not "present that type of involvement which the First
Amendment prohibits"46 under the coercion test.
I believe the Act passes scrutiny under the Lemon and endorsement tests as well,
should these tests apply despite the Supreme Court's preference for a coercion
analysis in the school context (and others). Lemon requires consideration of all of
its factors to determine constitutionality under the Establishment Clause. As to the
first, it is obvious that the Act has a secular purpose. The Act's sole reference to
God is in terms of a national motto having "nothing whatsoever to do with the
establishment of religion. "47
42 Id. at 1274-75 (concluding that "the School's application of the motto statute, in particular the
use of the posters supplied by an allegedly religiously motivated group, does not offend the
Establishment Clause of the First Amendment.").
43 Van Orden v. Perry, 545 U.S. 677, 690-91 (2005) (internal quotation omitted).
44 Aronow, 432 F.2d at 243-44 (quoting House Report No. 1959, 1956 Cong. & Admin. News, p.
3720 ("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.")).
45 Aronow, 432 F.2d at 243-44.
46 School District of Abington Township v. Schempp, 374 U.S. 203, 303 (1963).
47 Id. at 243. The Honorable Les Eaves
State Representative
Opinion No. 2017-101
Page 9
As to the second Lemon factor, the Act's primary effect is not to advance or inhibit
religion, but to "foster[] patriotism and express[] confidence in the future"48 by
displaying the motto. And taking the endorsement test as a variation on this
second prong, a "reasonable observer" would not, in my opinion, find that the Act
"communicat[ ed] a message of government endorsement or disapproval of
religion."49 On the contrary, a reasonable observer is "presumed to know that 'In
God We Trust' is the national motto."50 This observer would consequently
recognize a poster depicting the motto as "a secular acknowledgment."51 And I
believe the Act does not run afoul of the third Lemon factor (excessive
entanglement of the government with religion) given the minimal religious
influence on the displays called for by the Act.
Finally, the Act would likely not pose a problem under the Free Exercise Clause of
the First Amendment, should such a challenge arise. A statute "neutral and of
general applicability" will generally withstand scrutiny under current Free
Exercise Clause jurisprudence, even if that statute "has the incidental effect of
burdening an individual's exercise of religion."52 Here, the Act is neutral since it
does not "infringe upon or restrict practices because of their religious
motivation."53 And because the displays at issue are "secular and not religious,"54
the Act does not even incidentally burden religious exercise. 55
48 Schmidt, 127 F. Supp. 2d at 1178, citing Gaylor, 74 F.3d 214.
49 Lynch, 465 U.S. at 687.
50 Lambeth, 321 F. Supp. 2d at 699.
51 Id. at 700, 703 (noting that "several federal appellate courts have considered the phrase 'In God
We Trust' and [have] held that neither its use as the national motto nor its appearance on currency
violates the Establishment Clause.").
52 Employment Division v. Smith, 494 U.S. 872, 878-882 (1990).
53 Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 ( 1993) (discussing qualities of a non-
neutral statute).
54 Myers, 251 F. Supp. 2d at 1274.
55 The Act is likewise valid, in my opinion, under the Religious Land Use and Institutionalized
Persons Act, a federal statute that heightens the scrutiny applied to certain state regulations
affecting religious exercise. See 42 U.S.C. § 2000cc ("Protection of land use as religious
exercise."). But the federal statute is not triggered unless a state has "impose[d] a substantial
burden on the religious exercise of a person .... " Id. at § 2000cc(a)(l ). Because the Act does not The Honorable Les Eaves
State Representative
Opinion No. 2017-101
Page JO
CONCLUSION
Our country has a religious heritage, and there are "countless ... illustrations of ...
governmental sponsorship of graphic manifestations of that heritage."56 The Act
does the same-it recognizes the country's religious heritage. But the posters
called for by the Act have "nothing whatsoever to do with the establishment of
religion,"57 or with religious exercise. In my opinion, display of the national
motto, the United States flag, and the Arkansas flag pursuant to Act 911 is
consistent with the First Amendment and related statutes.
Sincerely,
~/~
LESLIE RUTL/o~
Attorney General
burden religious exercise at all, it would not be subject to heightened scrutiny under the federal
law. Nor would the Act violate Arkansas's religious-freedom statute, which also states that the
"government shall not substantially burden a person's exercise of religion .... " Ark. Code Ann. §
16-l 23-404(a) (Rep I. 2016) (emphasis added).
56 Lynch, 465 U.S. at 677.
57 Aronow, 432 F.2d at 243 (emphasis added).