This week, Atheist activist and attorney Michael Newdow filed a federal complaint challenging the inclusion of “In God We Trust” on U.S. currency. After losing several similar cases over the past decade brought under the Establishment Clause, Free Exercise Clause, and Religious Freedom Restoration Act (RFRA) Newdow is trying again— this time on behalf of over forty plaintiffs, including two Atheist organizations.
As a preliminary matter, it may seem odd that Atheists are bringing a claim under Constitutional and statutory protections intended to safeguard religious belief. The Supreme Court, however, has repeatedly found that Atheists and other non-believers have First Amendment religious freedom protections. And while the question of whether Atheists are covered by RFRA has not been decisively litigated by the Supreme Court, lower courts have taken their claims seriously. The only evidence that Atheists are not protected by the statute is a quote from Justice Stevens’ concurrence in City of Boerne v. Flores, which says RFRA “has provided the Church with a legal weapon that no atheist or agnostic can obtain.” This is mere dicta, however, and has not prevented lower courts from applying RFRA protections to Atheists.
Under RFRA, the federal government may not substantially burden a person’s exercise of religion unless 1) it acts is in furtherance of a compelling governmental interest; and 2) application of the religious burden is the least restrictive means of furthering that interest. Newdow’s complaint argues that by placing “In God We Trust” on the nation’s currency, the government has substantially burdened the plaintiffs’ exercise of religion “by requiring them – as the price to pay for using the nation’s coins and currency bills – to personally bear a religious message that is the antithesis of what they consider to be religious truth” and to “proselytize for a religious claim that is completely contrary to their personal religious opinions.” Additionally, Newdow claims the government required plaintiffs “to engage in activity that they believe furthers the anti-Atheist religious prejudices that pervade this nation’s society.” He argues that the government has “no compelling interest to justify these burdens.”
In Newdow’s past cases, courts have rejected his claim that the inclusion of “In God We Trust” on U.S. currency poses a substantial burden on the exercise of Atheism. The Ninth Circuit wrote that the harms imposed on Newdow by the motto rested on an incorrect premise, that “the motto represents a purely religious dogma and constitutes a government endorsement of religion.” In fact, the court explained that the motto was merely “patriotic or ceremonial” rather than theistic, and therefore it could not be a “substantial burden” on Newdow’s exercise of Atheism. In a later case, the Second Circuit found that there was no substantial burden on plaintiffs’ exercise of religion because “the carrying of currency, which is fungible and not publicly displayed, does not implicate concerns that its bearer will be forced to proclaim a viewpoint contrary to his own.”
Both circuit court opinions essentially argue that Atheists should not feel substantially burdened by the presence of “In God We Trust” on currency, either because the motto is not actually religious or because carrying a religious motto in their pocket does not violate Atheist beliefs. This method of reasoning was soundly rejected by the Supreme Court in Burwell v. Hobby Lobby. In that case, the government tried to argue that requiring Christian companies to provide contraceptive coverage in their insurance plans was not a substantial burden, because the action being imposed was too attenuated from their religious belief that abortion is morally wrong. The Court held that this was not the correct way to asses a substantial burden, as this was a question of theology rather than law. It explained that “federal courts have no business addressing” the question of “whether the religious belief asserted in a RFRA case is reasonable,” but should rather ask whether the government is coercing the plaintiff to violate his or her belief.
Newdow pointed this out in his Petition for a Writ of Certiorari to the Supreme Court in the Second Circuit case in 2014, months after Hobby Lobby was decided. The Court however, declined to take the case. And, interestingly, Newdow did not cite to Hobby Lobby in his latest petition challenging “In God We Trust.”
There is much to be critiqued about Hobby Lobby’s “substantial burden” analysis, including that it instructs courts to defer not only to a petitioner’s personal religious beliefs, but to his or her own facts. But what’s good for the goose should be good for the gander— and if Newdow and other plaintiffs’ claim that using money imprinted with “In God We Trust” violates their deeply-held beliefs, it is not clear why courts should be able to second-guess them.
It seems extremely unlikely that Newdow’s latest attempt will make its way to SCOTUS. If by any chance it does, however, it will be enlightening to see whether and how the Court gets out under its own Hobby Lobby reasoning, which would suggest that Newdow and Newdow alone gets to decide whether “In God We Trust” is a burden to his Atheist beliefs.