The Washington Post

“In God We Trust” on currency doesn’t violate the First Amendment or the Religious Freedom Restoration Act

From today’s Second Circuit opinion in Newdow v. Peterson (2d Cir. May 28, 2014) (some paragraph breaks added):

As the Supreme Court has repeatedly indicated in dicta, the statutes at issue in this case have a secular purpose and neither advance nor inhibit religion. The Court has recognized in a number of its cases that the motto, and its inclusion in the design of U.S. currency, is a “reference to our religious heritage.” Lynch v. Donnelly, 465 U.S. 668, 676 (1984); see also Cnty. of Allegheny v. Am. Civil Liberties Union Greater Pitts. Chapter, 492 U.S. 573, 625 (1989) (O’Connor, J., concurring) (“in my view, [governmental] acknowledgements [of religion], such legislative prayers … and the printing of ‘In God We Trust’ on our coins serve the secular purposes of solemnizing public occasions, expressing confidence in the future and encouraging the recognition of what is worthy of appreciation in society.” (internal citation and quotation marks omitted)). As such, the Court’s Justices have distinguished our currency from improper governmental endorsements of religion. See, e.g., Van Orden, 545 U.S. at 716 (Stevens, J., dissenting) (noting that the “message conveyed by the Ten Commandments cannot be analogized to an appendage to a common article of commerce (‘In God We Trust’).”); Cnty. of Allegheny, 492 U.S. at 602-03 (holding, inter alia, that the display of a crèche at a country courthouse violated the Establishment Clause but noting that “there is an obvious distinction between a crèche display and references to God in the motto and the pledge.”); Lynch, 465 U.S. at 716 (Brennan, J., dissenting) (dissenting from the Court’s approval of a crèche display in a park but distinguishing the motto as “a form [of] ‘ceremonial deism,’ protected from Establishment Clause scrutiny chiefly because [it has] lost through rote repetition any significant religious content.”). We therefore hold, in line with the Supreme Court’s dicta, that [the relevant statutes] do not violate the Establishment Clause.

In addition to their Establishment Clause argument, appellants also contend that [the relevant statutes] violate the Free Exercise Clause and [the Religious Freedom Restoration Act]…. Appellants argue that they are substantially burdened by the necessity of using currency because doing so requires them “to bear on their persons … a statement that attributes to them personally a perceived falsehood that is the antithesis of the central tenant of their religious system.” Appellants also contend that using money forces them to proselytize. We respectfully disagree that appellants have identified a substantial burden upon their religious practices or beliefs.

“[A] substantial burden exists where the state ‘put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (quoting Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)); see also Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d 338, 348 (2d Cir. 2007) (“Supreme Court precedents teach that a substantial burden on religious exercise exists when an individual is required to ‘choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion … on the other hand.’” (quoting Sherbert v. Verner, 374 U.S. 398, 404 (1963))). Appellants face no such stark choice between a basic benefit and a core belief.

As the Supreme Court has previously indicated, 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. In Wooley v. Maynard, 430 U.S. 705 (1977), the Court held that New Hampshire’s compulsory “Live Free or Die” license plates violated the First Amendment rights of plaintiffs, who were Jehovah’s Witnesses, but noted that it did not view the ruling as one that would apply to the country’s currency: “currency, which is passed from hand to hand, differs in significant respects from an automobile, which is readily associated with its operator.  Currency is generally carried in a purse or pocket and need not be displayed to the public. The bearer of currency is thus not required to publicly advertise the national motto.”

For substantially the same reasons, we find that appellants’ system of beliefs is not substantially burdened by the placement of the motto on currency and, therefore, affirm the district court’s judgment on appellants’ Free Exercise and RFRA claims….

Seems correct to me, given the Court’s past statements in this area. Thanks to How Appealing for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.



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