Bench Memos

Law & the Courts

Sixth Circuit Shenanigans: Is ‘In God We Trust’ Really Just Barely Constitutional?

Yesterday, a three-judge panel of the Sixth Circuit Court of Appeals ruled 2-1 that the presence of the national motto “In God We Trust” on U.S. coins and bills does not violate the Constitution or the Religious Freedom Restoration Act. Good news, right?

Actually, not really. The two-judge majority reached the right result, but in a terribly wrong way. If left as it is, the decision in New Doe Child #1 v. Congress of the United States will have negative effects on religious people in the Sixth Circuit — which covers the states of Kentucky, Michigan, Ohio, and Tennessee — for many years to come. That is a result that the full Sixth Circuit should not let stand.

Some background is in order. The Sixth Circuit panel was considering a challenge to the placement of the words of our national motto, “In God We Trust,” on United States currency. The atheist and humanist plaintiffs argued that the motto violates a number of constitutional provisions and also that it constituted a “substantial burden on their religious exercise” in violation of the Religious Freedom Restoration Act (“RFRA”). The atheists are led by Michael Newdow, a lawyer who has brought constitutional challenges to many different references to God in public life that offend his sensitivities, including the words “under God” in the Pledge of Allegiance and “So help me God” at the end of the presidential inaugural oath. Along the way he has sued all three branches of government, including the United States Congress, Presidents George W. Bush and Barack Obama, and Chief Justice Roberts.

In yesterday’s decision, the two-judge majority affirmed the trial court’s dismissal of Newdow’s complaint, which is the correct outcome: There’s nothing wrong, constitutionally or otherwise, with the national motto. (The dissenting judge would have ruled that “In God We Trust” has to be taken off the currency.) But in reaching its result, the two-judge majority damaged RFRA and constitutional precedent in the Sixth Circuit. Worse still, it opened up the federal courts to a new category of claims: “religious exercise” claims brought by atheist militants with an ax to grind.

The first problem was the damage done to the RFRA standard in the Sixth Circuit. The two-judge majority held that Newdow’s clients did not sufficiently allege a substantial burden because the plaintiffs failed to claim that they had “no feasible alternative” to using physical currency that includes words offensive to them. Thus, their purported inability to use cash was a “mere inconvenience” of the kind that did not constitute a substantial burden. But this newly-invented “no feasible alternative” standard would allow government defendants to argue that a religious believer suffers only “mere inconvenience” any time her religious practice is not entirely foreclosed by government regulations. It is not hard to imagine how this standard — a revival of Michigan Catholic Conference v. Burwell, which was vacated and remanded by the Supreme Court — would harm religious believers navigating dense regulations, government bureaucracy, or roadblocks put up by a hostile local government.

The second problem is that the two-judge majority opened up a path for anti-religious groups to abuse RFRA and the Religion Clauses of the First Amendment. As Becket pointed out in its amicus brief, under longstanding Supreme Court precedent, philosophical objections are fundamentally different from religious objections. Here, since the atheist and humanist plaintiffs expressly base their claims on the absence of any religious belief, they cannot bring a claim under the Religious Freedom Restoration Act or the Religion Clauses. The law does not protect philosophies, however earnestly held, but religions. Indeed, in Wisconsin v. Yoder the Supreme Court held that the distinction between religion and philosophy is required by “the very concept of ordered liberty[.]”

But the two-judge majority wrongly conflated the plaintiffs’ philosophical reactions to someone else’s religious beliefs — namely, a belief in God — with actual religious beliefs. The two-judge majority was also wrong to hold that making the religion-philosophy distinction would violate the Establishment Clause. Although it may sometimes be, as the Supreme Court acknowledged in Yoder, a “delicate” task, it does not require the government to parse religious doctrine, only to take the plaintiffs at their word when they say they reject all religious belief.

Perhaps the worst problem with the two-judge majority’s decision is that it will unleash a flood of anti-religion RFRA and Religion Clause litigation upon the federal courts. If a group like Freedom from Religion Foundation can bring a RFRA or Free Exercise Clause claim simply because it thinks all religion is false, then it has a general license to sue. And that would debase the currency of religious liberty.

So what can be done to clean up this mess? The en banc Sixth Circuit has been known to sua sponte rehear panel cases in order to clarify sensitive areas of First Amendment law. For example, last year the en banc court sua sponte vacated a panel opinion in Bormuth v. County of Jackson in an Establishment Clause challenge to legislative prayer and reheard the case. The New Doe Child ruling now presents an opportunity for the Sixth Circuit to nip bad RFRA and Free Exercise Clause doctrine in the bud, much as it took on Bormuth to clarify the Establishment Clause. But if the full Court does not act here, then further RFRA and constitutional challenges based on philosophical disagreements, rather than religious practices, will become the norm in the Sixth Circuit. And that would be a shame.

Diana Verm — Diana Verm is legal counsel at the Becket Fund for Religious Liberty. The views expressed here do not necessarily represent those of Becket or its clients.

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