Written by Don Byrd
Today, the U.S. Supreme Court denied certiorari in New Doe Child #1 et al v. United States, a challenge to use of the motto “In God We Trust” on national currency. The denial means the 8th Circuit’s ruling dismissing the case remains in place.
The appeals court – like several other appeals courts before it – found no merit in the plaintiffs’ argument that the motto establishes or endorses religion in violation of the First Amendment. Likewise, the 8th Circuit rejected their claim that having “In God We Trust” substantially burdens the free exercise of religion under the Religious Freedom Restoration Act because it forces religious objectors to refrain from using cash.
One interesting argument between the majority and concurring opinions was the impact of the Supreme Court’s ruling in Town of Greece. In that case, the court upheld a legislative prayer policy on the rationale that the historical practice of opening the legislature with a prayer dates back to the Founding. The 8th Circuit majority in this case called Town of Greece a “major doctrinal shift” in its emphasis on historical understanding, while the concurring judge countered that placing “In God We Trust” on money was not a uniform practice across the country until the 20th Century, and thus the reliance on that case was inapt.
The majority answered that criticism this way:
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.”
The plaintiffs petitioned the Supreme Court for review, arguing that the court should use the dispute to “bring clarity to…Establishment Clause jurisprudence.” That apparently won’t happen with an “In God We Trust” case; however, we are all waiting on the Supreme Court to issue its ruling in the Bladensburg Cross case, which may substantially impact the way courts interpret the Establishment Clause.
The cross case opinion is expected by the end of this month.