Michael Newdow is the atheist who at one time argued before the US Supreme Court that the phrase “under God” in the Pledge of Allegiance that school children say in school violated the Establishment Clause and was thus unconstitutional. The court ruled against him on a technicality that he was at the time not the legal custodian of his daughter, the one in whose name the suit was brought, and thus lacked standing. His later attempts to rectify that issue by representing other children did not succeed at the Appeals Court level and he gave up on it.
He is now back in court leading a group of 41 people who are challenging the use of the words “in God We Trust” on US currency. The suit has been filed in a federal court in Akron, OH and you can see the petition here.
Most of the plaintiffs in this case are, as to be expected, nonbelievers who feel that they are being forced by their government to carry a religious message that they do not believe in. Two of them, Marni Huebner-Tiborsky and Sal Salerno, are known to me because they are both very active in the region as part of the Northern Ohio Freethought Society, that is also one of the petitioners.
On the surface, this suit would seem to have little chance of success since the courts have been reluctant to remove these references to religion. What makes this case interesting though is that the suit alleges that not only does this religious phrase on currency violate the Establishment Clause, it also contravenes the Religious Freedom Restoration Act, the legislation passed in 1993 that says that government cannot substantially burden a person’s religious beliefs without a compelling reason and even then must choose the least burdensome option at their disposal. Religious groups have exploited this law successfully to have their religious practices in the public sphere protected from challenge.
The Newdow lawsuit claims that forcing them to bear this religious message is a substantial burden for nonreligious people. Before one dismisses this as a trivial burden, remember that the US Supreme Court will on March 23, 2016 hear oral arguments on a set of cases in Zubik v. Burwell where, among others, a group of nuns claim that filling out a simple one-page form exempting them from the contraceptive mandate of Obamacare constitutes a substantial burden and seek relief under RFRA.
Another interesting point is that the suit refers to God everywhere as ‘G-d’ because one of the plaintiffs is actually religious and believes that printing of God’s name or the destruction of God’s printed name is a sin so this suit cannot be dismissed as being done purely to serve the needs of nonbelievers. As the lawsuit says (p. 38)
Plaintiff Adam Clayman is domiciled in Ohio. He often has needs to use U.S. currency in the course of his daily life. Unlike the other plaintiffs in this case, he is a firm believer in the existence of G-d.
To Plaintiff Clayman, participation in any activity that ultimately leads to the superfluous printing of G-d’s name on secular documents or to the destruction of G-d’s printed name is sinful. Thus, aware that – due to the acts being challenged in this case – G-d’s printed name on the nation’s money will ultimately be destroyed, Plaintiff Clayman has to choose between engaging in sin or not using the nation’s coins and currency bills. This choice substantially burdens him in the exercise of his religion.
I still do not have much hope for this suit, though. I think the courts feel that even if the presence of the phrase ‘In God We Trust’ is unconstitutional, calling for its removal would create a storm of protest and thus they will find some way of justifying its continuation, using one of several of their preferred options to avoid overturning practices that might cause an uproar. One is the notion that this sentiment has ceased to be religious, that these words have now become so ceremonial and banal that they lack any deep religious meaning that would warrant their removal. The other is the ‘history and tradition’ argument that the practice has been around so long that it is unlikely to form the foundation for establishing a national religion if it hasn’t done so already. The third is to invoke the de minimis non curat lex argument (‘the law takes no account of trifles’) so that even if possibly unconstitutional, these things are too trivial to bother with.