by Sophie DiLoreto, Senior Associate
“In God We Trust.” These four words have appeared on all U.S. coins since 1938 and on all U.S. paper currency since 1957. Additionally, as of the 2019–2020 academic year, Louisiana law mandates that these words appear in every public school in the state.
I. Louisiana Revised Statutes § 17:262
In May of 2018, Louisiana Governor John Bel Edwards signed Senate Bill 224 into law, formalizing an amendment to Louisiana Revised Statutes § 17:262 that now requires every public school in the state to display the words “In God We Trust” anywhere within the school, in the minimum format of a paper sign. Louisiana is not the only state to write such a requirement into its laws—Arkansas, Tennessee, Florida, Alabama, Arizona, and South Dakota have also recently approved similar legislation. Some educators and legislators, however, anticipate a certain amount of backlash to these policies. In Louisiana’s Ouachita Parish, for example, the principal of West Monroe High is “aware he might have some students or parents that would disagree” with the new legislation. South Dakota’s legislation addresses similar concerns directly: South Dakota Codified Laws § 13-24-24 requires the state attorney general to provide legal representation at no cost to any school district or employee sued as a result of its motto requirement and provides that the state assume any financial responsibility incurred by such a lawsuit.
II. Constitutional Challenges to the National Motto
The troubled national history of the “In God We Trust” motto practically mandates concerns about the constitutional soundness of these new laws. A result of an increase in—mainly Christian—religious sentiment during the American Civil War, “In God We Trust” has not gone without legal scrutiny in the preceding decades. Plaintiffs have unsuccessfully challenged legislation mandating use of the motto as violative of the U.S. Constitution’s Equal Protection, Free Speech, Free Exercise, and Establishment Clauses. As recently as June 2019, the U.S. Supreme Court rejected a writ of appeal from petitioners who brought an Establishment Clause challenge to the presence of “In God We Trust” on U.S. national currency. Previously, the Court had suggested in dicta that “In God We Trust” does not offend constitutional principles because it falls within the context of what Yale Law School Dean Walter Rostow called “ceremonial deism,” referring to a class of public activity “so conventional and uncontroversial as to be constitutional.” The Supreme Court, however, has not yet squarely addressed the constitutionality of the phrase in any context.
Louisiana’s new legislation mandating display of “In God We Trust” in public schools therefore exists squarely in the midst of poorly charted constitutional waters. On the one hand, the U.S Constitution’s Establishment and Free Exercise Clauses prohibit the government from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof.” Some atheistic and non-monotheistic Americans claim that mandating the inscription of such “facially religious text” on U.S. currency violates these Constitutional proscriptions because the phrase’s presence forces them to participate in conduct that directly opposes their sincerely held beliefs in order to receive the benefit of using money at all. On the other hand, U.S. federal appellate courts have consistently upheld the use of “In God We Trust” on U.S. currency, most notably in Aronow v. United States, in which the Ninth Circuit said that the motto had “nothing whatsoever to do with the establishment of religion.”
III. Establishment Clause Analysis Under Lemon
The Aronow court based its statement on the determination that “In God We Trust” had “no theological or ritualistic impact.” One year after Aronow, however, the United States Supreme Court in Lemon v. Kurtzman announced a new, three-step analysis for Establishment Clause challenges to governmental actions, which requires looking past an action’s religious impact alone to also consider its legislative purpose. Under the Lemon approach, a governmental action only passes constitutional muster if the government action: (1) has a secular legislative purpose; (2) has a principal effect that neither advances nor inhibits religion; and (3) does not foster an “excessive government entanglement with religion.” Although the Supreme Court sometimes muddled or criticized these three prongs in later years,  it has never expressly overruled the Lemon analysis.
So does Louisiana Revised Statutes § 17:262 pass constitutional muster under the Lemon test? Despite the deceptive simplicity of the three-pronged analysis, this question may not be easy to answer. Because the legislation’s primary effect may neither truly advance nor inhibit religion given the “ceremonial deism” of “In God We Trust,” one must also consider the legislature’s purpose behind the motto requirement. The often-criticized “secular purpose” prong of Lemon is, however, the most difficult factor to apply, and individual members of the Supreme Court have voiced objections to that part of the analysis. Chief Justice Rehnquist once pointed out that nearly anything might satisfy the secular purpose requirement because legislators could come up with a secular rationale for almost any law. Justice Scalia also objected to the secular purpose requirement, believing that discerning the subjective motivation of legislators enacting a statute was “almost always an impossible task.” When the legislators in question have not included their purpose in the legislation, the secular purpose prong may be impossible to apply.
The Louisiana legislators who enacted Louisiana Revised Statutes § 17:262 did not include any language to signal its purpose, but federal courts following Lemon have found several acceptable secular purposes to legislation mandating the use of “In God We Trust” in another context—display on U.S. currency—that might conceivably apply to § 17:262. Under the Lemon analysis, courts have found several purposes acceptable to justify use of “In God We Trust,” including “fostering patriotism,” “expressing confidence in the future,” “encouraging the recognition of what is worthy of appreciation in society,” and “referencing our religious heritage” Any one of these purposes could apply to the Louisiana legislation, particularly because § 17:262 also mandates a program of instruction on “the American flag,” “etiquette pertaining to” the flag, and “other patriotic customs.” This focus on instruction and education, as well as the statute’s placement in pari materia among provisions requiring instruction on the U.S. Constitution and the nation’s founding principles, suggests that the purposes behind Louisiana’s motto requirement are to foster patriotism and educate schoolchildren about America’s religious heritage. Furthermore, although one legislator’s word cannot stand for the intent of the general legislature, the senator who sponsored the bill that became Louisiana Revised Statutes § 17:262 said she did so due to her belief that “it’s really important that young people understand the patriotic history” of the country. These purposes would likely satisfy the Lemon analysis as it currently stands.
IV. The Constitutionality of § 17:262
Louisiana Revised Statutes § 17:262 therefore probably passes constitutional scrutiny under the Establishment and Free Exercise Clauses even though the U.S. Supreme Court has not definitively addressed the constitutionality of “In God We Trust.” As amorphous as Lemon’s first prong, a “secular purpose” may be, available textual clues to § 17:262 indicate an intent to foster patriotism and education on the country’s religious heritage that federal appellate courts would likely hold appropriately secular. History suggests that the Court would likely find that the legislation’s primary effect is that of “ceremonial deism,” neither advancing nor inhibiting religion, which would satisfy the second Lemon prong. Ever since Aronow, federal courts have found that the U.S. motto’s primary effect is not religious. Finally, the third Lemon prong—the question of whether the legislation fosters an excessive governmental entanglement with religion—would likely merge with this analysis. No U.S. court has held that use of the motto is an impermissible government involvement with religion. Despite some critics’ concerns about this mandate, Louisiana Revised Statutes § 17:262 is constitutionally firm under Lemon’s three prongs.
 U.S. Dep’t of Treasury, History of ‘In God We Trust,’ https://www.treasury.gov/about/education/Pages/in-god-we-trust.aspx [https://perma.cc/34DK-RSAA] (last updated Mar. 8, 2011).
 La. Rev. Stat. § 17:262 (2019).
 Aris Folley, Students in Louisiana Public Schools to be Greeted With ‘In God We Trust’ Signs, Hill (Aug. 13, 2019, 8:29 PM), https://thehill.com/homenews/state-watch/457338-students-in-louisiana-public-schools-to-be-greeted-with-in-god-we-trust [https://perma.cc/HM85-FVU7].
 Dani Matias, South Dakota Public Schools Add ‘In God We Trust’ Signs to Walls, NPR (July 25, 2019, 3:28 PM), https://www.npr.org/2019/07/25/744909500/south-dakota-public-schools-add-in-god-we-trust-signs-to-walls [https://perma.cc/E4LE-VMRC].
 ‘In God We Trust’ Motto to Appear in Every Louisiana Public School This Fall, WFAB9 (Aug. 11, 2019, 8:41 AM), https://www.wafb.com/2019/08/11/god-we-trust-motto-appear-every-louisiana-public-school-this-fall/ [https://perma.cc/9VFM-8NY6].
 South Dakota’s law mandates that schools display the words “In God We Trust” in a “prominent location” where student are “most likely” to see it. S.D. Codified Laws § 13-24-24 (2019).
 U.S. Dep’t of Treasury, supra note 1.
 See, e.g., Mayle v. United States, 891 F.3d 680 (7th Cir. 2018) (holding that printing the phrase “In God We Trust” on U.S. currency does not “carry” religious content beyond constitutional boundaries).
 Doe v. United States, 139 S. Ct. 2699 (2019).
 Lynch v. Donnelly, 465 U.S. 668, 716 (1984) (citing Arthur E. Sutherland, Book Review, 40 Ind. L. J. 83, 86 (1964) (quoting Dean Rostow’s 1962 Meiklejohn Lecture delivered at Brown University)).
 U.S. Const. amend. I.
 See, e.g., Petition for Writ of Certiorari at *12, Doe v. U.S., 139 S. Ct. 2699 (2019) (2019 WL 1620574) (“Defendants have conditioned receipt of the important benefit of using the nation’s sole ‘legal tender’ upon conduct proscribed by Petitioners’ Atheism (i.e., upon Petitioners’ personally bearing—and proselytizing—a religious message that is directly contrary to the central idea that underlies their religious belief system).”)
 432 F. 2d 242, 243 (9th Cir. 1970) (finding no substantial grounds for attacking the constitutionality of either 31 U.S.C. § 324(a) (mandating printing of “In God We Trust” on all U.S. currency and coins) or 36 U.S.C. § 186 (declaring “In God We Trust” to be the national motto of the United States) and affirming the District Court’s refusal to convene a three-judge court to hear such challenge).
 Id. at 243.
 403 U.S. 602 (1971).
 Id. at 612–613.
 For example, the Court considered the “excessive entanglement” factor as part of the “principal effect” inquiry rather than as its own separate prong in Agostini v. Felton, 521 U.S. 203 (1997) (overruling previous decision in Aguilar v. Felton, 473 U.S. 402 (1985) to hold that a federally funded program that sent public school teachers to parochial schools for remedial education did not violate the Establishment Clause).
 See Wallace v. Jaffree, 472 U.S. 38, 108 (1985) (Rehnquist, J., dissenting) (“[T]he prong will condemn nothing so long as the legislature utters a secular purpose and says nothing about aiding religion . . . the constitutionality of a statute may depend upon what the legislators put into the legislative history and, more importantly, what they leave out.”).
 See Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J., dissenting).
 See Allan W. Vestal, Cents and Sensibilities, 20 U. Pa. J. Const. L. 245, 279–284 (2017) (reviewing post-Lemon jurisprudence on challenges to “In God We Trust” on U.S. currency).
 See Gaylor v. United States, 74 F.3d 214, 216 (10th Cir. 1996).
 See Newdow v. Peterson, 753 F. 3d 105, 108 (2d Cir. 2014).
 See id.
 See id.
 La. Rev. Stat. § 17:262 (2019).
 Section 17:262 will likely be read in conjunction with surrounding statutes that reference public school curricula because the Louisiana Civil Code requires laws on the same subject matter to be interpreted in pari materia, or “in reference to each other.” See La. Civ. Code art. 13.
 KTMAL, Louisiana Public Schools Set to Display ‘In God We Trust’ Motto Under Law, BR Proud (Jul. 26, 2019, 1:29 PM), https://www.brproud.com/news/local-news/louisiana-public-schools-set-to-display-in-god-we-trust-motto-under-law/ [https://perma.cc/LQD2-VCTG].
 For example, the co-president of the Freedom From Religion Foundation has expressed caution about the fact that most of the legislation like Louisiana’s recent amendment stems from “model bills” included in the Congressional Prayer Caucus Foundation’s “Project Blitz” legislative playbook. Lisa Caczke, How a 12-inch Sign in South Dakota Schools Sparked National Debate on Religion in Politics, Argus Leader (Aug. 2, 2019, 11:13 AM), https://www.argusleader.com/story/news/politics/2019/08/02/south-dakota-in-god-we-trust-school-law-kristi-noem-religion/1876510001/ [https://perma.cc/PA88-U9NL].