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.