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New Doe Child #1 v. United States

United States Court of Appeals, Eighth Circuit

August 28, 2018

New Doe Child #1; New Doe Child #2; New Doe Child #3; New Doe Parent; New Roe Child; New Roe Parent; New Boe Child; New Boe Parent; New Poe Child; New Poe Parent; New Coe Child #1; New Coe Child #2; New Coe Child #3; New Coe Parent; Gary Lee Berger; Marie Alena Castle; Charles Daniel Christopher; Patrick Ethen; Betty Gogan; Thomas Gogan; Roger W. Kaye; Charlotte Leverette; Dr. James B. Lyttle; Kyle Pettersen-Scott; Odin Smith; Andrea Dawn Sampson; Eric Wells; Atheists for Human Rights (AFHR); Saline Atheist & Skeptic Society Plaintiffs - Appellants
The United States of America; Steven T. Mnuchin, [1] Secretary of the Treasury; David J. Ryder, [2] Director, United States Mint; Leonard R. Olijar, Director, Bureau of Engraving and Printing Defendants - Appellees The Becket Fund for Religious Liberty Amicus on Behalf of Appellee(s)

          Submitted: March 13, 2018

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before GRUENDER, BEAM, and KELLY, Circuit Judges.


         This case presents a challenge to the inscription of the national motto, "In God We Trust," on United States coins and currency. The Plaintiffs are twenty-seven individuals who are atheists or children of atheists and two atheist organizations who "definitely do not trust in God." They brought this action against the United States and officials from the United States Mint, Treasury, and Bureau of Engraving and Printing (collectively "the Government"), raising various constitutional and statutory challenges. In the complaint, the Plaintiffs allege that the statutes requiring the inscription of the national motto on U.S. coins and currency, 31 U.S.C. §§ 5112(d)(1) & 5114(b), violate the Establishment Clause, the Free Speech Clause, and the Free Exercise Clause of the First Amendment; the Religious Freedom Restoration Act ("RFRA"); and the Equal Protection component of the Fifth Amendment. They seek declaratory relief and a permanent injunction barring the Government from minting coins or printing currency with the phrase "In God We Trust." The Government filed a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the action for failure to state a claim, which the district court[3] granted. Plaintiffs timely appealed.

         Having satisfied ourselves that we have jurisdiction to hear each challenge, see Nolles v. State Comm. for Reorganization of Sch. Dists., 524 F.3d 892, 897 (8th Cir. 2008), we now review de novo the district court's grant of the motion to dismiss, see Wong v. Minn. Dep't of Human Servs., 820 F.3d 922, 927 (8th Cir. 2016). We address each challenge in turn, and we affirm.



         The Establishment Clause prohibits Congress from making any law "respecting an establishment of religion." U.S. Const. amend. I. Plaintiffs argue that placing the motto "In God We Trust" on coins and currency violates the Establishment Clause because "the text is purely religious." In their view, the motto is an explicit endorsement of Christianity and monotheism, with the purpose and effect of spreading that faith and coercing non-believers to participate in religious acts. Thus, the Plaintiffs claim, the motto's continued use on U.S. money constitutes "an actual establishment of religion" under "every test enunciated by the Supreme Court."

         We note at the outset that each of our sister circuits to have considered the question has found that placing "In God We Trust" on U.S. coins and currency does not violate the Establishment Clause. See Mayle v. United States, 891 F.3d 680, 684-86 (7th Cir. 2018); Newdow v. Peterson, 753 F.3d 105, 108 (2d Cir. 2014) (per curiam); Newdow v. Lefevre, 598 F.3d 638, 645 (9th Cir. 2010); Gaylor v. United States, 74 F.3d 214, 217-18 (10th Cir. 1996); O'Hair v. Murray, 588 F.2d 1144, 1144 (5th Cir. 1979) (per curiam); Kidd v. Obama, 387 Fed.Appx. 2 (D.C. Cir. 2010) (per curiam). In dicta, the Supreme Court has repeatedly suggested the same.[4] See, e.g., Lynch v. Donnelly, 465 U.S. 668, 676 (1984); Cty. of Allegheny v. ACLU, 492 U.S. 573, 602-03 (1989). Thus, we are not writing on a blank slate.

         We do, however, address this issue for the first time today under the guidance of new Supreme Court precedent, not yet considered in this circuit. See Town of Greece v. Galloway, 134 S.Ct. 1811 (2014). Over the last half century, the Supreme Court has adopted numerous tests to interpret the Establishment Clause, without committing to any one. See Lynch, 465 U.S. at 678-79; see also Van Orden v. Perry, 545 U.S. 677, 692 (2005) (Scalia, J., concurring). Its most recent direction[5] came in Town of Greece v. Galloway. As we have noted, in particularly complex and changing areas of the law, the "prudent course for an inferior court . . . is to hew closely to the Court's specific, contemporary guidance." S. Wine & Spirits of Am., Inc. v. Div. of Alcohol & Tobacco Control, 731 F.3d 799, 809 (8th Cir. 2013). Thus, we analyze Galloway with particular care.

         In Galloway, the Supreme Court offered an unequivocal directive: "[T]he Establishment Clause must be interpreted by reference to historical practices and understandings." 134 S.Ct. at 1819 (internal quotation marks omitted) (emphasis added). The Court adopted the principle that the "line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers."[6] Id. (quoting Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring)). Galloway involved a challenge to a town's practice of opening its board meetings with a prayer that often contained sectarian language. See id. at 1815-17. In upholding the practice, the Court first looked to historical practices as evidence that the town's prayer was permitted by the Establishment Clause. Id. at 1818-24. A majority of the Court then considered whether the prayer at issue was unduly coercive, again tying the prohibition against Government coercion of religion to history. See id. at 1825 (plurality opinion) (conducting a coercion analysis "against the backdrop of historical practice"); id. at 1837 (Thomas, J., concurring in part and concurring in the judgment) (looking at the kind of coercion that was "a hallmark of historical establishments of religion"). This two-fold analysis is complementary: historical practices often reveal what the Establishment Clause was originally understood to permit, while attention to coercion highlights what it has long been understood to prohibit.

         Some have read Galloway as "a major doctrinal shift" in Establishment Clause jurisprudence. See Smith v. Jefferson Cty. Bd. of Sch. Comm'rs, 788 F.3d 580, 602 (6th Cir. 2015) (Batchelder, J., concurring in part and concurring in the result); see also Felix v. City of Bloomfield, 847 F.3d 1214, 1219 (10th Cir. 2017) (Kelly, J., dissenting from the denial of rehearing en banc). Given (1) Galloway's unqualified directive that the Establishment Clause "must" be interpreted according to historical practices and understandings, 134 S.Ct. at 1819; (2) its emphasis that this historical approach is not limited to a particular factual context, id. at 1818-19; and (3) the absence of any reference to other tests in the Court's opinion, we agree.[7]

         To be sure, the precise implications of this shift are not yet clear.[8] What is clear, however, is that Galloway provides the framework for analyzing this case. In the past, this court's approach to Establishment Clause jurisprudence has been to analyze the case before us under the most analogous Supreme Court decision.[9] See, e.g., ACLU Neb. Found. v. City of Plattsmouth, 419 F.3d 772, 778 n.8 (8th Cir. 2005) (en banc) (applying one test to the exclusion of others when analyzing the constitutionality of a Ten Commandments monument); Jackson v. Nixon, 747 F.3d 537, 541-42 (8th Cir. 2014) (same when analyzing a prison policy that conditioned benefits on attendance at a nonsecular substance abuse treatment program); Roark v. S. Iron R-1 Sch. Dist., 573 F.3d 556, 563 & n.4 (8th Cir. 2009) (same when analyzing the distribution of religious literature to school children). Here, Galloway is best suited to the challenge before us because both the prayer at issue in that case and the inscription of the national motto at issue here represent Government acknowledgments of religion that "strive for the idea that people of many faiths may be united in a community of tolerance and devotion." See Galloway, 134 S.Ct. at 1823. Factually, this case falls within Galloway's ambit.

         We will therefore analyze the Plaintiffs' Establishment Clause claim under Galloway and ask two questions. First, what do historical practices indicate about the constitutionality of placing the national motto on money? Second, is the motto impermissibly coercive?


         We begin by looking to historical practices. Where "history shows that the specific practice is permitted," we typically need go no further; the Establishment Clause claim fails. Galloway, 134 S.Ct. at 1819; see also id. at 1834 (Alito, J., concurring). But where history has not spoken to the "specific practice" at hand, Galloway indicates that we look to the historical understandings of the Establishment Clause as informed by other relevant practices. Id. at 1819 (majority opinion).

         The Plaintiffs-and the concurring opinion-rightly note that the specific practice of placing "In God We Trust" on U.S. money did not begin until 1864 and was not uniform across all currency until almost a century later. But the practice comports with early understandings of the Establishment Clause as illuminated by the actions of the First Congress. The Supreme Court has long recognized the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Lynch, 465 U.S. at 674. For example, "[t]he First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time." Galloway, 134 S.Ct. at 1818. Likewise, the "day after the First Amendment was proposed, Congress urged President Washington to proclaim a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts, the many and signal favours of Almighty God." Lynch, 465 U.S. at 675 n.2 (internal quotation marks omitted). "The same Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III of which provided: 'Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.'" McCreary Cty. v. ACLU, 545 U.S. 844, 887 (2005) (Scalia, J., dissenting). These practices and others shed light on the historical understandings of religion's role in American life. As the Supreme Court has noted, "the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him." See Schempp, 374 U.S. at 213; cf. The Declaration of Independence para. 2 (U.S. 1776) ("We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights . . . ."). Thus, given that our founding documents protect rights that were thought to derive from God, it is unsurprising that "religion has been closely identified with our history and government," a relationship still "evidenced today in our public life." Schempp, 374 U.S. at 212-13; see also Galloway, 134 S.Ct. at 1819.

         Despite this unbroken history, the Plaintiffs emphasize that the national motto is, on its face, monotheistic and was originally inscribed on currency with an "intention to suffuse our nation with (Christian) Monotheistic religion," as revealed by the statements of various public officials and other evidence. They therefore assert that inscribing coins and currency with the motto violates the Establishment Clause because it (1) privileges monotheism and (2) was impermissibly motivated by a desire to advance that religion.

         These contentions fail to state a claim under the Establishment Clause. First, although the motto refers to one God, historical practices confirm that the Establishment Clause does not require courts to purge the Government of all religious reflection or to "evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage." City of Plattsmouth, 419 F.3d at 778. Precluding general references to God would do exactly that. In Galloway, the Court communicated the same idea when rejecting the challenge to sectarian prayer. 134 S.Ct. at 1822 (suggesting that because "even seemingly general references to God or the Father might alienate nonbelievers or polytheists," that is evidently not the line drawn by the Constitution). In doing so, it cited Justice Scalia's dissent in McCreary County v. ACLU, see id., which explained that "[i]f religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all," 545 U.S. at 893 (Scalia, J., dissenting); see also Mayle, 891 F.3d at 687 (rejecting a similar challenge to the placement of the national motto on money "not because we think that the phrase 'In God We Trust' is absolutely devoid of religious significance, but instead because the religious content that it carries does not go beyond statutory or constitutional boundaries"). As the Supreme Court has proclaimed time and again, our "unbroken history" is replete with these kinds of official acknowledgments, see Lynch, 465 U.S. at 674, which "demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion." McCreary Cty., 545 U.S. at 893 (Scalia, J., dissenting).[10] A theory that erases that distance necessarily fails.

         Second, the Plaintiffs' contention that the stated motivations and purposes for placing "In God We Trust" on coins and currency somehow transform an otherwise constitutional practice into an unconstitutional establishment of religion also fails. We agree with the Seventh Circuit that this argument is "too simplistic." See Mayle, 891 F.3d at 685. The Constitution does not prevent the Government from promoting and "celebrat[ing] our tradition of religious freedom," even if the means of doing so-here, adding the national motto to U.S. money-was motivated "in part because of religious ...

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