The Volokh Conspiracy
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Today, in New Doe Child #1 v. Congress of the United States, a divided panel of the U.S. Court of Appeals for the Sixth Circuit dismissed a series of challenges to printing the National Motto "In God We Trust" on U.S. currency. As Judge Stranch (joined by Judge Norris) explained the case:
Atheists, Humanists, and one Jewish Plaintiff challenge the federal statutes requiring inscription of the National Motto, "In God We Trust," on U.S. currency. Plaintiffs allege that the currency statutes cause them to bear, affirm, and proselytize an objectionable message in a way that, for the Atheist and Humanist Plaintiffs, violates their core religious beliefs, and, for the Jewish Plaintiff, renders him complicit in the sins of superfluously printing God's name and destroying God's printed name. Plaintiffs claim that the statutes violate their rights under the Religious Freedom Restoration Act of 1993 (RFRA), the Free Exercise and Free Speech Clauses of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment, as incorporated by the Due Process Clause of the Fifth Amendment.
Although all three judges concluded the plaintiffs had standing to bring their claim, they also unanimously rejected the constitutional claims as pleaded, and upheld the district court's dismissal of the case. The statutory claim was another matter.
Dissenting from her colleagues, Judge Moore concluded that several dozen of the plaintiffs had met their burden of showing a "substantial burden" on their practice of religion under the Religious Freedom Restoration Act.
Judge Moore began her dissent as follows:
The national motto, and its inclusion on American money, is of relatively recent vintage. The first phrase inscribed on American currency was "Mind Your Business"; it appeared on the continental dollar and then on the fugio cent. William Van Alstyne, Trends in the Supreme Court: Mr. Jefferson's Crumbling Wall—A Comment on Lynch v. Donnelly, 1984 DUKE L.J. 770, 774. "In God We Trust" did not appear on the currency until the Civil War, when it was imprinted on coins. B. Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning Over Time, 59 DUKE L.J. 705, 707–08 (2010). Congress mandated that the phrase be included on all U.S. coins and bills in 1955, Act of July 11, 1955, Pub. L. No. 84-140 (1955), and subsequently adopted the phrase as the national motto in 1956, Act of July 30, 1956, Pub. L. No. 84-851 (1956).
In their first claim, the plaintiffs argue that the inscription of the national motto "In God We Trust" on U.S. coins and bills substantially burdens their exercise of religion in violation of the Religious Freedom and Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et seq. All but four of the plaintiffs have sufficiently pleaded factual allegations demonstrating that the inscription substantially burdens their religion and have thus pleaded a plausible violation of RFRA. I would, therefore, reverse the district court's grant of the government's Rule 12(b)(6) motion to dismiss Claim 1 with respect to these thirty-nine plaintiffs.
According to Moore, the plaintiffs were able to show that the current policy imposes a substantial burden on their religious beliefs and, at least as for purposes of a motion to dismiss, the government had failed to demonstrate that printing "In God We Trust" on currency is a narrowly tailored means of furthering a compelling government interest. Unsurprisingly, Judge Moore relies upon the Supreme Court's Hobby Lobby decision in her opinion.
Here's a taste of Judge Moore's analysis:
[T]here is a substantial burden when there is either de facto or de jure coercion on an individual to choose between violating her religious beliefs or facing serious consequences. See Hobby Lobby, 133 S. Ct. at 2783. In this case, the plaintiffs allege that the government's inclusion of the national motto on coins and bills "force[s] Plaintiffs to choose between either relinquishing their rights to participate in much of their everyday commerce (by using the nation's monetary instruments) or violating their religious beliefs.". . . The Supreme Court has held that "RFRA was enacted to prevent" the government from "effectively exclud[ing] . . . [individuals] from full participation in the economic life of the Nation." Hobby Lobby, 133 S. Ct. at 2783. Exclusion from full participation in the economy is exactly what the plaintiffs argue is occurring here. There are transactions that are entirely cash-only (e.g. cash-only businesses, parking meters, tolls, vending machines) and there are individuals whose participation in economic transactions is limited solely to using coins and bills (e.g. children and adults who cannot access credit or bank accounts). If use of coins and bills violates an individual's religious beliefs, then there is a substantial burden if they must use coins and bills in order to participate fully in "the economic life of the Nation." . . .
The government argues that the national motto's "inscription on U.S. coins and currency is central to the public proclamation of the fundamental political values the Motto represents." Appellee Br. at 31. The government claims that its interest in the inscription of the national motto on U.S. coins and bills is compelling because it "is one of the primary means by which Congress communicates, for the benefit of U.S. citizens and to the broader world, the fundamental values on which our system of government is founded." Appellee Br. at 31. The government provides no evidence buttressing its claim about the primacy of the role U.S. coins and bills play in transmitting a message from Congress to U.S. citizens and others. Furthermore, the plaintiffs vigorously contest the validity of the government's assertions. Appellant Br. at 33. Consequently, there are no undisputed facts conclusively establishing that the government has a compelling interest in inscribing "In God We Trust" on U.S. coins and bills.
Even if the government were able to establish such a compelling interest, it has failed to demonstrate that the inscription is the least restrictive means of achieving this compelling interest. The government argues that the placement of the national motto on U.S. coins and bills is the least restrictive means to further its compelling governmental interest because no other phrase is the national motto. Appellee Br. at 33. This argument sidesteps the compelling interest the government has asserted. The compelling interest, as articulated by the government, is not simply having the national motto inscribed on coins and bills. Rather, it claims that the compelling governmental interest is having coins and bills function as a "primary means by which Congress communicates . . . the fundamental values on which our system of government is founded." Appellee Br. at 31. Thus, the national motto is not the least restrictive means of achieving this alleged compelling interest because Congress could still use coins and bills as such an advertising device without using the specific phrase "In God We Trust" or any other religiously inflected phrase that imposes a substantial burden on users of U.S. coins and bills.
Given the standard for RFRA claims the Supreme Court set forth in Hobby Lobby, these are serious arguments. As statutory claims, however, they could be easily extinguished by Congress. Although I don't expect this case to attract four votes for certiorari at One First Street, if it did (and is the plaintiffs were to prevail), I would expect Congress to exempt currency from RFRA rather quickly.