753 F.3d 105 (2nd Cir. 2014), 13-4049-cv, Newdow v. Peterson
| Citation | 753 F.3d 105 |
| Opinion Judge | Per Curiam: |
| Party Name | ROSALYN NEWDOW; KENNETH BRONSTEIN; BENJAMIN DREIDEL; NEIL GRAHAM; JULIE WOODWARD; JAN DOE; PAT DOE; DOE CHILD 1 AND DOE CHILD 2; ALEX ROE; DREW ROE; ROE CHILD 1; ROE CHILD 2; ROE CHILD 3; VAL COE; JADE COE; COE CHILD 1; COE CHILD 2; NEW YORK CITY ATHEISTS; AND FREEDOM FROM RELIGION FOUNDATION,[*] Plaintiffs-Appellants, v. RICHARD A. PETERSON, ACTIN |
| Attorney | Michael Newdow, Sacramento, California, for Plaintiffs-Appellants. Preet Bharara, United States Attorney for the Southern District of New York (Michael J. Byars, Benjamin Torrance, Assistant United States Attorneys, on the brief), New York, New York, for Defendants-Appellees. |
| Judge Panel | Before: PARKER AND HALL, Circuit Judges; AND MATSUMOTO, District Judge.[+] |
| Case Date | May 28, 2014 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Second Circuit |
Page 105
Submitted April 21, 2014.
Appeal from the September 10, 2013 judgment of the United States District Court for the Southern District of New York (Baer, J.), dismissing, on a motion pursuant to Federal Rule of Civil Procedure 12(b)(6), a suit brought under the Establishment Clause and Free Exercise Clause of the First Amendment, as well as the Religious Freedom Restoration Act of 1993 (" RFRA" ), challenging 31 U.S.C. § § 5112(d)(1) and 5114(b), which require the inclusion of the national motto, " In God We Trust," on this country's paper currency and coinage. We conclude that the statutes at issue do not violate the Establishment Clause or the Free Exercise Clause and RFRA because they do not have a religious purpose or advance religion, nor do they place a substantial burden on appellants' religious practices. Accordingly, we AFFIRM the judgment of the District Court.
OPINION
Page 106
Plaintiff-appellants appeal from an order of the United States District Court for the Southern District of New York (Harold Baer, District Judge), which granted dismissal of their claims under the Establishment Clause and the Free Exercise Clause of the United States Constitution, as well as the Religious Freedom Restoration Act of 1993 (" RFRA" ). Appellants are eleven individuals who self-identify as atheists and secular humanists and who include numismatics, a teacher, parents and their minor children, and others who state that they have been harmed by the placement of " In God We Trust" on currency, as well as two organizations, the New York City Atheists and the Freedom from Religion Foundation. They challenge two statutory provisions, 31 U.S.C. § § 5112(d)(1) and 5114(b), which require that the country's motto, " In God We Trust," be placed on all coinage and paper currency. On May 8, 2013, defendants, including the United States, Richard A. Peterson, Deputy Director of the United States Mint, Larry R. Felix, Director of the Bureau of Engraving and Printing, and Jacob J. Lew, Secretary of the Treasury,1 moved to dismiss the case in its entirety. Judge Baer granted the motion and appellants timely filed the instant appeal.
We have never addressed the question of whether the inclusion of the words " In God We Trust" on United States currency violates the Constitution or RFRA and write today to clarify the law on this issue. Four other circuit courts have ruled on this question, however, and have found that the statutes at issue do not contravene the Constitution. See Kidd v. Obama, 387 F.Appx. 2 (D.C. Cir. 2010) (per curiam) (affirming the district court and holding that the printing of the motto on currency does not violate the First Amendment); Gaylor v. United States, 74 F.3d 214, 216 (10th Cir. 1996) (holding that the
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" statutes establishing the national motto and directing its reproduction on U.S. currency clearly have a secular purpose" and that " the motto's primary effect is not to advance religion; instead, it is a form of 'ceremonial deism,'" and, therefore, the statutes do not violate the Establishment Clause); O'Hair v. Murray, 588 F.2d 1144 (5th Cir. 1979) (per curiam) (upholding the constitutionality of the statutes requiring the motto to be placed on currency and the statute criminalizing the defacement of the motto), aff'g district court's opinion in O'Hair v. Blumenthal, 460 F.Supp. 19 (W.D. Tex. 1978); Aronow v. United States, 432 F.2d 242 (9th Cir. 1970) (affirming the dismissal of a challenge to both the motto and its inscription on currency because " [i]t is quite obvious that the national motto and the slogan on coinage and currency 'In God We Trust' has nothing whatsoever to do with the establishment of religion. Its use is of a patriotic or ceremonial character" ); see also Newdow v. Lefevre, 598 F.3d 638 (9th Cir. 2010) (declining to overrule Aronow ). We agree with our sister circuits and hold that 31 U.S.C. § § 5112(d)(1) and 5114(b) do not violate the Establishment Clause, the Free Exercise Clause or RFRA. Accordingly, the judgment of the district court is affirmed.
DISCUSSION
We review the district court's grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) de novo. See, e.g., Chase Grp. Alliance LLC v. City of New York Dept. of Fin., 620 F.3d 146, 150 (2d Cir. 2010).
A. The Establishment Clause
The First Amendment of the Constitution provides that " Congress shall make no law respecting an establishment of religion." In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Supreme Court held that, in order to comply with the Establishment Clause: " First, the statute [at issue] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances or inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." Id. at 612-13 (internal citations and quotation marks omitted). Although the Supreme Court has, in some cases, criticized or declined to apply Lemon, see, e.g., Van Orden v. Perry, 545 U.S. 677, 685, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005), we have previously held that Lemon remains the prevailing test in this Circuit, absent its abrogation. See Bronx Household of Faith v. Bd. of Educ. of City of New York, 650 F.3d 30, 40 n.9 (2d Cir. 2011).2 Both the appellants and the appellees agree that only the first and second prongs of the Lemon test are at issue in this case.
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As the Supreme Court has repeatedly indicated in dicta ,3 the statutes at issue in this case have a secular purpose and neither advance nor inhibit religion. The Court has recognized in a number of its cases that the motto, and its inclusion in the design of U.S. currency, is a " reference to...
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