Michael Newdow has a history of lawsuits to support church and state separation. After addressing the phrase ‘Under God’ in the Pledge of Allegiance, Newdow recently filed a lawsuit, in Ohio, to have the US Motto ‘In God We Trust’ removed from our currency. The difference this time is he plans on using the same argument Hobby Lobby used to get out of the contraceptive mandate of the Affordable Care Act. Newdow’s strategy is very interesting and looks promising.
In previous cases against the ‘Under God’ phrase and the US motto he has argued about it being a harm to non-believers to be exposed to the obviously religious phrases.
In recent years, courts have been less likely to agree that just being exposed to religion is a harm required for a 1st amendment case. Some courts have also bent over backwards to make the religious phrases seem generic and less religious against the plain words used just to preserve the use of the phrases.
This time Newdow plans on using the same argument used by Hobby Lobby in their 2014 US Supreme Court case Burwell v. Hobby Lobby Stores, Inc. The company used the Religious Freedom Restoration Act (1993) to gain an exemption from the contraceptive mandate of the Affordable Care Act. The ruling said that closely held corporations could be exempt from laws they object to because of the religious beliefs of the owners.
The 112-page lawsuit, filed Monday by Sacramento doctor and lawyer Michael Newdow in federal court in Akron, contends that having the phrase on paper money and coins violates the constitutional rights of those who do not believe in an almighty being.
The word “God” is used hundreds of times in the lawsuit, but each reference, save for those in the titles for publications, is styled as “G-d.”
“The ‘In G-d We Trust’ phrase has continued to be a tool used to perpetuate favoritism for (Christian) Monotheism,” the suit states. “It has also continued to perpetuate anti-Atheistic bias.”
(Note: The lawsuit’s use of “g-d” is to respect the beliefs of the one devout Christian plaintiff.)
In an earlier post on Friendly Atheist, Newdow explained his argument further:
Many people — monotheistic and atheistic alike — find the inscriptions of “In God We Trust” on U.S. money to be offensive for myriad reasons. In a court of law in a constitutional democracy, however, the only reason that matters is if the practice is unlawful.
It violates the first ten words of the Bill of Rights (“Congress shall make no law respecting an establishment of religion”) and it violates the Religious Freedom Restoration Act (RFRA). Unfortunately, because Constitutional principles can be twisted and perverted, the challenges to this practice under the Establishment Clause have, so far, failed. Challenges under RFRA, however, are not as susceptible to misapplication. This is because every Supreme Court justice involved in the three RFRA cases heard to date has agreed that, under RFRA, religious activity may not be substantially burdened without a compelling governmental interest and laws narrowly tailored to serve that interest.
There is obviously no compelling government interest in having “In God We Trust” on our money. We did fine for the 75 years before the phrase was ever used at all, and continued to do fine for the subsequent 102 years before such inscriptions were made mandatory on every coin and currency bill. Similarly, the vast majority of nations manage to function without religious verbiage on their money.
Accordingly, for those who feel that being forced by the government to carry a message that violates their religious ideals is substantially burdensome, lawsuits are now being prepared in the seven (of twelve) federal circuits that have not yet heard challenges to this governmental practice. Although the arguments demonstrating that the godly inscriptions violate the Establishment Clause will again be raised, the RFRA claim will (for the first time) be the lead argument in each case. Hopefully, in at least one of those circuits, two appellate judges will be willing to acknowledge the statutory violation.
Because of Newdow’s previous track record, not many people think he will succeed. There are some who even complain about the lawsuits since there is no guarantee he will win the case.
I’m not one of those people.
Like using the 13th amendment to argue against abortion restrictions, I think using the RFRA to support church and state separation is an interesting line to take. It would also head off efforts to make the motto generic and other pretzel logic used to preserve religious privilege.
I wish Michael Newdow good luck in his quest.