Newdow Wants to Challenge ‘In God We Trust’ With RFRA

Michael Newdow, the atheist activist who has brought several lawsuits over the words “under God” in the pledge of allegiance (none of them successful), now wants to bring several more lawsuits to get “In God We Trust” off the money. The twist is that he plans to use the Religious Freedom Restoration Act as the basis for his argument.

Many people — monotheistic and atheistic alike — find the inscriptions of “In God We Trust” on U.S. money to be offensive for myriad reasons. In a court of law in a constitutional democracy, however, the only reason that matters is if the practice is unlawful.

And under American law, the practice is clearly unlawful.

It violates the first ten words of the Bill of Rights (“Congress shall make no law respecting an establishment of religion”) and it violates the Religious Freedom Restoration Act (RFRA). Unfortunately, because Constitutional principles can be twisted and perverted, the challenges to this practice under the Establishment Clause have, so far, failed. Challenges under RFRA, however, are not as susceptible to misapplication. This is because every Supreme Court justice involved in the three RFRA cases heard to date has agreed that, under RFRA, religious activity may not be substantially burdened without a compelling governmental interest and laws narrowly tailored to serve that interest.

That last sentence is a bit baffling. The justices don’t have to agree on that question because that’s what RFRA actually says. They are only required to apply the law. Whether they agree with that standard or not is only relevant if someone actually challenges the constitutionality of RFRA, which has never been done. And Newdow does not plan to do so either, he plans to use RFRA as the basis for his argument. But what “religious activity” is being substantially burdened by having “In God We Trust” on the money? Spending money is not a “religious activity.”

Don’t get me wrong, I think that phrase should be removed from the money because it is unconstitutional on Establishment Clause grounds, but this case would not argue on the grounds of constitutionality at all. It would argue on statutory grounds, but making the case that the RFRA statute applies here will be extremely difficult to the point where one might as well call it hopeless and impossible. Newdow’s post argues that there is no compelling governmental interest in having that phrase on the money, and that is clearly true. But before the court even gets to analyzing that question, the plaintiffs have to establish that the law being challenged is a “substantial burden” on their religious freedom. It’s a virtual certainty that these cases will fail for one of two reasons:

1. Spending money is not a religious activity. Or,

2. Even if it is, having that phrase on the money does not constitute a substantial burden.

That means the compelling interest analysis becomes irrelevant to the case. This looks a lot like Newdow playing Don Quixote to me.

But there is one good that can come out of it, I think. Losing those cases might then set up an actual constitutional challenge to RFRA because it applies only to religious people and thus violates the Equal Protection Clause of the 14th Amendment. That argument is entirely true. But there’s nothing to indicate that this is the goal Newdow has in mind. There would be no harm in stating that goal at this point, so I’m assuming that isn’t in his plans. But if it leads to such a challenge, this exercise in legal futility might have a good result.

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  • dingojack

    Yes, but will it work? (From a legal point of view).

    Dingo

  • eric

    2. Even if it is, having that phrase on the money does not constitute a substantial burden.

    The ink! The extra ink! I can’t lift it.

  • John Pieret

    He’s claiming that it is a substantial burden to be forced by the government to carry a message that violates your religious ideals. The problem with that is, I think, that the only real message carried by money is that it is legal tender to buy stuff. Who would think that I, individually, was trying to convey my respect and admiration for Andrew Jackson when I hand some stranger a $20 bill?

  • tomh

    OP:

    ” it is unconstitutional on Establishment Clause grounds, but this case would not argue on the grounds of constitutionality at all. ”

    Newdow: “the arguments demonstrating that the godly inscriptions violate the Establishment Clause will again be raised…”

  • abb3w

    I’d go with 2, and expect the complaints’ response to mention of the prevalence of credit cards these days.

    The case might be more interesting if the complaint was joined by a Christian, complaining (and agreeing with Teddy Roosevelt) that such presence of this motto seems blasphemously offensive to them.

  • Reginald Selkirk

    Spending money is not a religious activity.

    The folks at Charisma News would beg to differ.

    How This Atheist Move Could Trigger an End-Times Economy

    “The world system is a control system that is both spiritual and economic,” McGuire said at the Prophecy in the News conference. “Money is all about captivity, slavery and control. That is its essential purpose. It’s essential purpose is not an economic instrument of exchange. It’s about control and the occult and spirituality.”

    .

    McGuire points to one of the founding theories of atheism, Darwin’s theory of evolution, and Space Odyssey co-author Arthur C. Clarke to connect atheism, money and the occult: Science is magic. To remove God from the money would allow the occult to take over.

  • mck9

    Newdow already tried to get the motto off the money on constitutional grounds, in 2011. The Ninth Circuit turned him down, and the Supremes declined to hear an appeal.

    On that occasion he got past the initial hurdle of standing because, as a practical matter, he was obliged on a daily basis to handle currency bearing an arguably religious message, thus propagating religious beliefs contrary to his own. The same argument should get him standing this time. It may not seem like a very substantial burden, but a burden it is, and the Hobby Lobby ruling established that even a de minimis burden is enough under the RFRA.

    He lost because the Court deemed itself bound by the earlier Aronow precedent from 1970. In that case the same Circuit ruled, in defiance of all logic, reason, and plain English, that “the motto has no theological or ritualistic impact.” Since “In God We Trust” does not, by judicial fiat, mean that we trust in God, it can’t conflict with anyone’s religious beliefs.

    This time around Newdow seems to be avoiding the Ninth Circuit, presumably hoping to find a venue not bound by those precedents.

    He’s probably going to argue as follows (I’m only guessing here): under the RFRA the plaintiff gets to decide whether the motto or religious or not, regardless of what the Court has previously ruled. After all, in Hobby Lobby, the plaintiffs were allowed to decide whether certain drugs were abortifacients or not, regardless of what medical science had previously determined.

  • llewelly

    Ed:

    But what “religious activity” is being substantially burdened by having “In God We Trust” on the money?

    Put your money in a pentagram and try to summon a demon. It won’t work. Because “In God We Trust” is on the money.

    (Nonetheless I do agree there is reason to hope this will undermine the RFRA.)

  • whheydt

    I wish him all the luck in the world with this endeavor. Unfortunately, it won’t work. Any decision will probably go against him on the rock of “ceremonial deism”.

    On the other hand, we all know that the people that really matter worship money, so he’s a got a point that the text in question *is* a religious statement.

  • eric

    I think if it bothered me that much, I would just get a “In Allah We Trust” or “Hail Satan” stamp made up and start stamping every bill that passed through my wallet.

    Heck, Newdow could take such stamped bills to some fundie religious store, use them to pay for items, and if the store refuses, sue them with the expectation that the Christians themselves will argue to the government that handling bills with such messages constitutes a religious burden. Then, when they make that argument, immediately capitulate and join them in agreeing that it does. With both sides agreeing. bang you’ve got a court precedent and no chance of it being appealed. Maybe??? IANAL, but it seems to me that even if it has little chance of working, it’s the only realistic way to get the majority Christians arguing before the court on your side.

  • EnlightenmentLiberal

    It’s a virtual certainty that these cases will fail for one of two reasons:

    1. Spending money is not a religious activity. Or,

    2. Even if it is, having that phrase on the money does not constitute a substantial burden.

    That means the compelling interest analysis becomes irrelevant to the case. This looks a lot like Newdow playing Don Quixote to me.

    And yet, it’s a substantial violation of the rights of the employer if the employee has their contraception covered, according to RFRA case law. I’m just saying.

    Also what mck9 said in 7.

    I expect that it will go down as you say it will, but that’s only because I expect rank hypocrisy from the justices.

  • http://www.ranum.com Marcus Ranum

    Why isn’t money a limited public forum? Oh, right, the christians can’t share their privilege.

  • Michael Heath

    Ed writes:

    But what “religious activity” is being substantially burdened by having “In God We Trust” on the money? Spending money is not a “religious activity.”

    Well it is a religious activity if an employer providing healthcare coverage that includes contraceptives is considered a religious activity.

  • sigurd jorsalfar

    “To remove God from the money would allow the occult to take over.”

    Ridiculous even if one believes in God. As alluded to by abb3w, what about credit cards? The reality is that only a small fraction of money in circulation consists of those paper bills and coins with “In God We Trust” stamped upon them. Most money is just numbers in a spread sheet. Why hasn’t the occult taken over already? Or has it? Dum dum dummmmmmm.

  • dannorth

    Why hasn’t the occult taken over before “in god we trust” was on the money?

    The “in god we trust” and the “so help me god” came into official use in the 1950’s.

  • eric

    @11 and @13: those are nice points, and I hope Newdow makes them, but there is still a substantial and fairly easily understood difference between being required to spend money on something religious and being required to touch money that has something religious printed on it.

  • buttle

    Who would think that I, individually, was trying to convey my respect and admiration for Andrew Jackson when I hand some stranger a $20 bill?

    Well, on a pretty straightforward interpretation, I would argue for Jesus himself, thanks to the combination of Mark 12:13-17 and its source, Romans 13:1-7. Due to the “beauty” of the RFRA you only need a “sincerely held religious belief”, no matter how laughable as admitted by Scalia himself. Therefore if a christian can hold a “sincere religious belief” that money carries a real message of religious value (surely the ones that worked for decades to replace the original wording did), so can an atheist agree on the principle, object to the specific message on religious grounds, and get it changed if it serves no concrete purpose for the government. Of course they’ll never let him win, but not because he’s wrong. A christian opposed to the motto would have an easier path forward, so if he finds someone willing to join him and receive his fair share of death threats he will have slightly better chances, but not by much.

  • EnlightenmentLiberal

    but there is still a substantial and fairly easily understood difference between being required to spend money on something religious and being required to touch money that has something religious printed on it.

    Meh. Maybe. Still seems pretty arbitrary to me.

  • tfkreference

    abb3w, you’re a genius! (That’s hyperbole, not sarcasm.)

    If having God’s name on filthy lucre isn’t taking the LORD’s name in vain, what is?

  • John Pieret

    Therefore if a christian can hold a “sincere religious belief” that money carries a real message of religious value (surely the ones that worked for decades to replace the original wording did), so can an atheist agree on the principle, object to the specific message on religious grounds, and get it changed if it serves no concrete purpose for the government.

    Solely on RFRA grounds, can you show a “substantial burden” on your (assuming it is the case) atheism because you have to use money that mentions “God”? Remember, in the case that led to the RFRA, native Americans were being, in effect, punished by the government for using peyote in religious ceremonies. That’s what a “substantial burden” is; the government punishing you for practicing your atheism.

    There are some amusing, but not very likely scenarios, suggested above. If the government, when someone refused to accept your money because you crossed out “God” and put in “Allah” or “Buddha” or “Nothing, then tried to prosecute you for “defacing” money, that might raise RFRA issues but I find it hard to believe that would happen.

  • iratebowel

    This is kellyw. posting

    @ 20. John Pieret

    Didn’t the government deface money with the Where’s George stamping, or did some other group do that. Besides, if I deface money by crossing out GOD in order to practice my atheism, if the government would punishment me for doing so, that satisfies substantial burden.

  • buttle

    Remember, in the case that led to the RFRA, native Americans were being, in effect, punished by the government for using peyote in religious ceremonies.

    Who cares? The supreme court didn’t come up with RFRA, that crazy law is not bound in any way by the case that historically pushed congress to codify it, and the justices have already shown awareness that it is overly broad: what kind of religious purpose could a short beard have? They can’t discuss it, they just have to accept that it does according to the claimant. Stop thinking of the atheist, think of some religious nutjob that object to using money with the word “God” on it, just like they could object to sit beside a woman on a plane or whatever else they decide to plague this world with:

    – Is it a burden according to them? Yes.

    – Could they be expected to never use any coin or paper money? Hardly.

    – Is there a compelling reason for the government to keep the word “God”? No.

    That would be according to logic. Of course they’ll find some other way to keep both the RFRA and the motto on the bills. They always do.

  • theDukedog7 .

    “RFRA… applies only to religious people and thus violates the Equal Protection Clause of the 14th Amendment.”

    Laws protecting gays from discrimination apply only to gay people. Do they violate the Equal Protection Clause?

  • tfkreference

    dukey – those laws apply to those who might do the discriminating (everyone).

  • theDukedog7 .

    Laws protecting religious behavior are analogous to laws protecting gay behavior.

    Why are the former, but not the latter, violations of Equal Protection?

  • eric

    @23:

    Is it a burden according to them? Yes.

    I would have to look but I very highly doubt the court did or ever intended to allow plaintiffs to complete control over what counts as a substantial burden. IIRC, the court comments about belief in Hobby Lobby were basically saying that it was not up to them to judge whether “spending money on someone else’s health care is a sin” was a real religious belief or not; they had to accept at face value that, for the Hobby Lobby folks, it was. I could argue with that (I think the court system has, and does, decide whether some claimed religious belief is a sham or not for purposes such as who gets counted as a religious charity), but regardless, this is not the same as saying the plaintiffs get to decide what counts as a legal substantial burden or a legal ‘less restrictive means’ of accomplishing some act’s purpose. Those are still decisions the court makes.

    @21:

    Besides, if I deface money by crossing out GOD in order to practice my atheism, if the government would punishment me for doing so, that satisfies substantial burden.

    You are right as a hypothetical, but the government is not doing that. In @10 I actually suggested that Newdow do something similar; stamp his money. See if he can push Christian shopowners into refusing legal tender based on a phrase he stamps on the money. If the government backs up the shopowner’s refusal (they won’t), your example would apply. OTOH if they don’t but the Christians sue the government on the grounds that handling money with some other religion’s proclamations on it is a burden to their freedom, well then Newdow has at least made it about Christian religious freedom, which is likely to get a more charitable interpretation from the various courts.

  • theDukedog7 .

    Seems like an awful lot of casuistry.

    Why not let the American people decide about inscriptions on money, through the legislative process. We are a democracy after all.

    What’s really remarkable about these debates is how seldom atheists endorse the democratic process.

  • colnago80

    Re Egnorance @ #27

    So Egnorance has no problem with the voters in Maryland, Washington State, and Maine approving same sex marriage laws passed by their legislators. By the way, Egnorance lives in New York State, which has a same sex marriage act passed by the legislature and signed by the governor.

    Is Egnorance arguing that a law passed by the state legislature and signed by the governor or whose veto is overridden by the legislature is not active until it is approved by the voters in that state?

  • theDukedog7 .

    @28:

    [So Egnorance has no problem with the voters in Maryland, Washington State, and Maine approving same sex marriage laws passed by their legislators.]

    I disagree with the law, but I respect it and I respect the process.

    I believe that imposition of gay marriage by judicial fiat is a flawed process.

    In a democracy, things like the definition of marriage should be decided democratically.

    Even if I supported gay marriage, I would disagree with judicial fiats that impose it. For example, I would disagree with a judge who ruled that the Constitution prohibits gay marriage.

    Ends don’t justify means.

  • eric

    @29: So if a state democratically decides blacks can’t marry whites, you would disagree with that law but respect it and respect the process?

    The US is a constitutional democracy. That means that when regular democratic law-making disagrees with the constitutional guarantees of individual rights, democratic law-making loses. The courts are the proper arbiter of when that happens and when that doesn’t. What part of that description of the system do you disagree with?

  • tfkreference

    Laws protecting religious behavior are analogous to laws protecting gay behavior

    What laws protect gay behavior? I’m talking about laws that protect everyone’s right to not be discriminated against for their sexual orientation. I don’t want to be fired for being married to woman (I’m a man), so why should I support the right of an employer to fire a woman for being married to a woman?

  • tomh

    @ #31

    Exactly right. There are no laws that protect “gay behavior,” (whatever that is), there are only laws that protect religious behavior.

  • buttle

    the court comments about belief in Hobby Lobby were basically saying that it was not up to them to judge whether “spending money on someone else’s health care is a sin” was a real religious belief or not; they had to accept at face value that, for the Hobby Lobby folks, it was. […] this is not the same as saying the plaintiffs get to decide what counts as a legal substantial burden

    Admittedly proving the “burden” is the weakest link, but look at how deep the supreme court went in that case: it was a burden to Hobby Lobby even simply having to sign the piece of paper to request their religious exemption from the insurance. Scalia claimed that there’s no need to balance the interest of the religious objector with the interest of a third party. What about that guy suing his employer for use of a biometric scanner due to his extremely specific interpretation of the book of Revelation? It was only in federal court and not argued on the same terms, but he won because even that was a burden worth accomodating. So what about being forced to handle blasphemous money every day?

  • abb3w

    @20ish, John Pieret

    Solely on RFRA grounds, can you show a “substantial burden” on your (assuming it is the case) atheism because you have to use money that mentions “God”?

    The most applicable court analysis I turn up seems from the 11th Circuit in Midrash v Surfside:

    We have held that an individual's exercise of religion is "substantially burdened" if a regulation completely prevents the individual from engaging in religiously mandated activity, or if the regulation requires participation in an activity prohibited by religion.

    This seems neither; ergo, part of Nedow’s effort would seem to need be to present the notion of a broader standard — not merely regulation requires participation in an activity explicitly prohibited by religion, but regulation which effectively requires participation in an activity grossly offensive to the sincerely held religious beliefs. This might be argued as necessary, as otherwise such a legal standard would impermissibly favor religion over irreligion. However, I’m not sure the current SCOTUS will buy that.

    @25ish, theDukedog7

    Laws protecting religious behavior are analogous to laws protecting gay behavior.

    Why are the former, but not the latter, violations of Equal Protection?

    The analogy is terrible. However, both laws that protect gay behavior and heterosexual behavior equally and that protect religious and irreligious behavior equally would not seem violations, while laws that protect one but not the other seem violations. At present, no laws protect “gay behavior” in particular. Rather, they ensure that both gay and straight behavior are equally protected.

    Religious folk occasionally try fielding the argument that a silent forum endorses atheism, but the courts so far have rejected that; silence is usually considered neutrality, not advocacy.

    @25ish, theDukedog7

    Why not let the American people decide about inscriptions on money, through the legislative process. We are a democracy after all.

    We’re a constitutional one with a system of checks and balances, however. Some forms of legislation require particular forms of super-majorities; while it is possible the legislature (including the states) might pass an Amendment expressly and directly addressing the question, they have not yet done so. Meanwhile, conflicts between laws (such as a law requiring “in God We Trust” with the RFRA or with the First Amendment’s prohibition against federal religious establishment) and controversies resulting are resolved by the Judiciary, per Article III Section 2 (and discussed early on by Hamilton in Federalist 78).

    @29ish, theDukedog7

    I believe that imposition of gay marriage by judicial fiat is a flawed process.

    That objection would seem to equally apply to the question of interracial marriage and Virginia v Loving… which I recommend that you re-read.

    The courts are not imposing gay marriage; they are (likely) imposing that marriage must be made equally available to gays and to straights.

  • EnlightenmentLiberal

    @eric in 26

    I would have to look but I very highly doubt the court did or ever intended to allow plaintiffs to complete control over what counts as a substantial burden. IIRC, the court comments about belief in Hobby Lobby were basically saying that it was not up to them to judge whether “spending money on someone else’s health care is a sin” was a real religious belief or not; they had to accept at face value that, for the Hobby Lobby folks, it was. I could argue with that (I think the court system has, and does, decide whether some claimed religious belief is a sham or not for purposes such as who gets counted as a religious charity), but regardless, this is not the same as saying the plaintiffs get to decide what counts as a legal substantial burden or a legal ‘less restrictive means’ of accomplishing some act’s purpose. Those are still decisions the court makes.

    That makes no sense. You still haven’t mentioned a clear unambiguous objective measure by which the Hobby Lobby owners have their religious rights harmed by being forced to pay for contraception, except by their say-so. How would the court decide if this was a huge burden on their religious views, a minor burden, etc., except by the Hobby Lobby owner’s say-so?

    Why not let the American people decide about inscriptions on money, through the legislative process. We are a democracy after all.

    We are not a democracy. We are a constitutional republic. In the system of government, the people do not have the power to enact any law which they want. There are limits on legislative power in a constitutional republic.