‘In God We Trust’ Motto Upheld in Novel Challenge

The federal appeals court decision upholding the inscription of “In God We Trust” on U.S. currency May 29 shows how courts will go to great lengths to protect the motto, scholars told Bloomberg Law.

The motto doesn’t violate the Religious Freedom Restoration Act because it doesn’t place a substantial burden on those who would rather not use coins or bills due to their objection to the phrase, the U.S. Court of Appeals for the Sixth Circuit said in a decision by Judge Jane Branstetter Stranch and joined by Judge Alan E. Norris.

Courts have “twisted themselves into pretzels” to uphold the motto, at least in part because they fear the “huge political backlash” that would occur if it were invalidated, Robert W.Tuttle, a professor of law and religion at George Washington University Law School, Washington, told Bloomberg Law by telephone May 30.

Similar challenges based on RFRA, the First Amendment’s establishment clause, or the free exercise clause have met the same fate, David L. Hudson, a professor at Vanderbilt Law School who specializes in First Amendment law, told Bloomberg Law by email May 30.

The Sixth Circuit’s ruling notably “goes into more detail on the RFRA claim” than other decisions have in its analysis of what constitutes a substantial burden, Hudson said.

The RFRA claim was notable because challenges to the motto have usually been litigated under the establishment clause, Douglas Laycock, a professor at the University of Virginia law school, Charlottesville, Va., told Bloomberg Law by email.

“The result is no surprise,” but it’s “a bit of a surprise that there was a dissent,” Laycock said.

Judge Karen Nelson Moore’s dissent said the plaintiffs sufficiently pleaded that their exercise of religion is substantially burdened because there’s no true alternative to using cash in our economy.

Household Names

The case featured a pair of familiar attorneys.

Jay Sekulow filed an amicus brief in support of the motto on behalf of about 40 Republican senators and representatives, joined by Democratic Sen. Joe Manchin (W. Va.).

Sekulow is also representing President Donald Trump in the ongoing investigation into potential ties between Trump’s presidential campaign and Russia.

Michael Newdow of Nice, Calif., argued for the plaintiffs challenging the motto, including atheists, humanists, and one Jewish plaintiff.

He came to fame for unsuccessfully challenging the recitation of the Pledge of Allegiance at his daughter’s school in a case that reached the U.S. Supreme Court, in 2004’s Elk Grove Unified Sch. Dist. v. Newdow.

Establishment Clause

Most challenges to the motto have come under the establishment clause, Laycock said.

In such cases, courts have applied a “de minimis exception” to protect the motto, “although that is not how the courts have explained it,” he said. “They claim instead that the motto is secular, which is obviously false.”

“The challenge based on RFRA is clever,” he said. “But generally, there is no free exercise or RFRA claim unless government regulates the claimant’s religious behavior.”

That “didn’t happen here,” Laycock said. “This is the claimants objecting to the government’s religious behavior, and that is an Establishment Clause problem.”

Paper, Plastic

The Sixth Circuit considered to what extent the motto inconvenienced the plaintiffs by forcing them to use payment methods other than cash.

Inscription of the motto on U.S. currency would violate the plaintiffs’ religious freedom only if being forced to use non-cash payment methods was “more than a mere inconvenience,” the court said.

Access to bank accounts or credit cards isn’t universal, but none of the plaintiffs alleged that their financial situation foreclosed access to such payment methods, the court said.

The plaintiffs merely alleged that they preferred to use cash, which wasn’t enough to show the substantial burden required under RFRA, the court said, affirming the district court’s dismissal of the claim.

Economic Participation

Moore’s dissent noted that the government and the majority acknowledged that many transactions require using cash.

She cited the U.S. Supreme Court’s holding that RFRA was intended to stop the government from excluding individuals from fully participating in the “economic life of the nation,” in 2014’s Burwell v. Hobby Lobby Stores, Inc. That decision ruled that closely held, for-profit corporations were protected under RFRA.

The substantial burden of being excluded from such participation “is exactly what the plaintiffs argue is occurring here,” she said.

Tuttle agreed that the majority’s substantial burden analysis was inconsistent with Hobby Lobby.

Hobby Lobby’s standard was “very deferential to plaintiffs,” he said. Nonetheless, the high court would likely “find some way to justify” the currency inscription, though there would probably be a “very sharp dissent.”

Lowell V. Sturgill Jr. of the Justice Department, Washington, argued for the federal government.

The case is Doe v. Cong. of U.S., 2018 BL 188701, 6th Cir., No. 16-4345, 5/29/18.