For almost a year now, the nation has been locked in almost constant debate over various state and federal versions of the Religious Freedom and Restoration Act (RFRA), a 20-year-old law that was broadened by the Supreme Court in 2014 and has since been embraced by right-wing politicians and pundits — especially religious conservatives. But in an unusual twist, an atheist activist is galvanizing support for a legal campaign to use the federal RFRA to remove the phrase “In God we trust” from U.S. coins and paper bills.
Even more unusual: it just might work.
Michael Newdow, who unsuccessfully sued to have “Under God” removed from the Pledge of Allegiance in 2004, published a guest post on the The Friendly Atheist blog last Friday outlining a new initiative to challenge the decades-old policy of printing the religiously themed American national motto on U.S. currency. He explained that while courts have dismissed claims that the phrase violates the Establishment Clause of the U.S. Constitution — which prohibits Congress from passing laws that establish one religion above others — his new legal argument is rooted in RFRA’s stipulation that religious activity cannot be “substantially burdened” without a “compelling government interest.” The government’s interest in emblazoning currency with “in God we trust,” Newdow argues, is suspect.
“Because Constitutional principles can be twisted and perverted, the challenges to this practice under the Establishment Clause have, so far, failed,” Newdow wrote. “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.”
Newdow, who plans to file the case in 7 federal court circuits, told ThinkProgress that although many Americans simply ignore the motto, it can be infuriating for those who don’t believe in God.
“Imagine if Christians had to carry on their body something they disagree with religiously, like ‘Jesus is a lie’ — how long do you think that would stand?” Newdow said. “But atheists are so denigrated in this society that people accept this without a second thought.”
Use of “In God We Trust” has long frustrated hardline supporters of the separation of church and state, who often note that its inclusion on U.S. paper currency is a relatively recent phenomenon that emerged out of a specific historical context. The phrase didn’t even become the official U.S. national motto until 1956, for example, replacing the mantra “E pluribus unum” during the early years of the Red Scare — an era when the U.S. was locked in a Cold War with Russia and its officially atheistic communist government. Paper bills began bearing the aphorism the following year, joining several kinds of metal coins that had been imprinted with it since 1864. The phrase “Under God” was also added to the Pledge of Allegiance during this time, and the state of Ohio changed its motto in 1959 to “With God, all things are possible.”
Although initially uncontroversial, the constitutionality of these terms has been questioned by several groups over the years, atheist and otherwise. Yet judges have historically rebuffed their objections: The Ninth Circuit Court of Appeals declared in 1970 that “In God we trust … has nothing whatsoever to do with the establishment of religion,” adding, “Its use is of patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.” More recently, a federal judge dismissed a similar 2013 lawsuit decrying the adage, saying that while the nonreligious plaintiffs were clearly perturbed by its religious themes, their frustration did not constitute a “substantial burden.”
But Newdow’s case is not a simple rehashing of these failed arguments. He told ThinkProgress he hopes to take advantage of the Supreme Court’s new interpretation of RFRA, specifically their 2014 Hobby Lobby decision, which granted the craft store giant Hobby Lobby a religious exemption from the Affordable Care Act. The controversial ruling constricted the federal government’s ability to impede the actions of religious Americans, which, in turn, expanded the way the law can be used by faith groups.
This potentially gives Newdow at least two new options for getting the term removed from coins and bills. First, he could claim that atheism is a “religion” unto itself, legally speaking, and thus deserving of exemption under RFRA. This may sound far-fetched, but there is already legal precedent for granting atheists the same protections as religious Americans: last October, a federal district court in Oregon issued a preliminary ruling that regarded secular humanism as “a religion for Establishment Clause purposes.”
Alternatively, he could corral plaintiffs whose religious beliefs are implicitly spurned by the phrase. Newdow cited the example of a devout Jewish man — who he said may become a plaintiff in his case — that ascribes to a specific strain of Judaism that restricts the use of the word “God” out of respect for the divine. Consequently, the man has rejected the use of physical American currency bearing the national motto, making it difficult for him to travel or frequent businesses that do not take credit cards. In addition, Hindus, Neopagans, Wiccans and many other Americans are polytheistic, meaning they believe (and trust) in more than one god, which is not reflected in the the current iteration of the motto.
“Who is the ‘we’ in ‘In God we trust’?” Newdow asked. “It’s outrageous, and it’s time to stop.”
It remains to be seen how courts will react to Newdow’s argument, but he’s not the only one testing the limits of laws supposedly designed to protect religious freedom. The Satanic Temple, a group whose professed beliefs closely mirror secular humanism, challenged Missouri’s 72-hour abortion waiting period earlier this month by citing the state’s RFRA. They argued that the waiting period is unconstitutional because it violates their sincerely held belief that “one’s body is inviolable, subject to one’s own will alone.” And in Indiana, the newly-formed First Church of Cannabis is planning to begin smoking marijuana as part of their religious services in July, claiming that their otherwise illegal drug use is exempted under Indiana’s version of RFRA.