by Kevin Daley
A three-judge panel of the 6th U.S. Circuit Court of Appeals ruled Thursday that the federal government can lawfully print “In God We Trust” on U.S. currency.
Though the result is a victory for those eager to preserve vestiges of religion in public life, conservative litigators warn the substance of the opinion could redound to the benefit of progressives.
The plaintiffs are a coalition of atheists, humanists, and a Jew who claim the motto’s appearance on U.S. currency burdens their deeply-held beliefs, in violation of the Religious Freedom Restoration Act (RFRA) and the First Amendment. The non-believing plaintiffs say the inscription forces them to carry and spread a message with which they disagree, while endorsing a religious position they hold to be false. The Jewish plaintiff says the epigraph compromises his religious practice to the extent that it implicates him in the unnecessary printing and destruction of God’s name, which is sinful under Mosaic law.
The coalition is represented by Michael Newdow, a fixture of church-state controversies. He sued Chief Justice John Roberts for including the appendation “so help me God” at the end of the presidential oath of office, and his constitutional challenge to references to God in the pledge of allegiance reached the U.S. Supreme Court in 2004.
In her opinion for the three-judge panel, Judge Jane Branstetter Stranch, an Obama appointee, rejected all of these claims. Though she agreed the plaintiff’s views qualified for RFRA’s protection, she explained that the burden placed on their beliefs was not substantial enough to constitute a violation. Other means of payment like credit cards or checks remain available to them, she noted, and the plaintiffs had failed to show why these auxiliary methods are not “feasible alternatives.”
“The inscription of the motto on currency would place sufficiently substantial pressure on plaintiffs to violate their alleged religious beliefs only if using payment methods other than cash is more than a mere inconvenience, such as if plaintiffs have no feasible alternative to using cash to engage in necessary transactions,” she wrote.
Conservative legal commentators, though satisfied of the result, took issue with Stranch’s findings. Writing in National Review, Diana Verm of the Becket Fund for Religious Liberty, explained the “feasible alternative” test Stranch used would require plaintiffs to show that religious practice must be completely foreclosed by government policy in order for a RFRA violation to exist — a much higher standard as compared to current law.
“It is not hard to imagine how this standard would harm religious believers navigating dense regulations, government bureaucracy, or roadblocks put up by a hostile local government,” she wrote.
Verm also argued the coalition’s views should not qualify for RFRA protection, since atheism is not a religion but a philosophy, which does not enjoy legal protection. Tuesday’s ruling, she asserted, could allow atheists to weaponize RFRA to advance secular causes.
“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,” she wrote. “And that would debase the currency of religious liberty.”
The judge also rebuffed the constitutional claims, explaining that the motto serves broadly secular purposes like fostering commonality, does not engender distaste for atheists, and could not be reasonably attributed to the individual possessing it. Laws or policies which incidentally burden religion, provided they are general and neutral in application, generally survive constitutional scrutiny.
The decision may be appealed to the full 6th Circuit or the U.S. Supreme Court.
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Kevin Daley is a reporter at Daily Caller News Foundation. Follow Kevin on Twitter.