Newdow v. Lefevre

• Decision Date: 11 March 2010
• Docket Number: No. 06-16344.,06-16344.
• Citation: 598 F.3d 638
• Parties: Michael A. NEWDOW, Plaintiff-Appellant, v. Peter LEFEVRE, Law Revision Counsel; United States of America; Henry M. Paulson, Jr.,* Secretary of the Treasury; Henrietta Holsman Fore, Director, United States Mint; Thomas A. Ferguson, Director, Bureau of Engraving and Printing; The Congress of the United States of America, Defendants-Appellees, Pacific Justice Institute, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

598 F.3d 638

Michael A. NEWDOW, Plaintiff-Appellant, v. Peter LEFEVRE, Law Revision Counsel; United States of America; Henry M. Paulson, Jr., ^* Secretary of the Treasury; Henrietta Holsman Fore, Director, United States Mint; Thomas A. Ferguson, Director, Bureau of Engraving and Printing; The Congress of the United States of America, Defendants-Appellees, Pacific Justice Institute, Defendant-Intervenor-Appellee.

No. 06-16344.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 4, 2007.

Filed March 11, 2010.

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Michael A. Newdow (argued), in pro per Sacramento, CA; for the plaintiff-appellant.

Peter D. Keisler, McGregor W. Scott Robert M. Loeb, Lowell V. Sturgill Jr. (argued), Department of Justice, Washington, DC; for defendants-appellees the United States of America et al.

Kevin T. Snider (argued), Pacific Justice Institute, Sacramento, CA; for defendantintervenor-appellee Pacific Justice Institute.

Norman Goldman, Law Office of Norman Goldman, Los Angeles, CA; for Atheists and Other Freethinkers as Amicus Curiae in Support of plaintiff-appellant.

Edward L. White III, Thomas More Law Center, Ann Arbor, MI; for the Thomas More Law Center as Amicus Curiae in Support of the defendants-appellees.

Erik W. Stanley, Mary E. McAlister Liberty Counsel, Lynchburg, VA; Mathew D. Staver, Anita L. Staver, Liberty Counsel, Maitland, FL; for Liberty Counsel as Amicus Curiae in Support of the defendants-appellees.

Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Shannon Demos Woodruff, American Center for Law and Justice, Washington, D.C.; Douglass S. Davert, David C Loe, Davert & Loe, Long Beach, CA; John Casoria, Law Office of John Casoria, Coto de Caza, CA; for American Center for Law and Justice et al. as Amici Curiae in Support of the defendants-appellees.

Roy S. Moore, Gregory M. Jones, Benjamin D. Dupre, Foundation for Moral Law, Montgomery, AL; for the Foundation for Moral Law as Amicus Curiae in Support of the defendants-appellees.

Gary G. Kreep, Vicki A. Rothman, D. Colette Wilson, United States Justice Foundation, Ramona, CA; for the United States Justice Foundation et al. as Amici Curiae in Support of the defendants-appellees.

Steven W. Fitschen, Barry C. Hodge, The National Legal Foundation, Virginia Beach, VA; for Wallbuilders, Inc., as Amicus Curiae in Support of the defendantsappellees.

Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, District Judge, Presiding. D.C. No. CV-05-02339-FCD.

Before: D.W. NELSON, STEPHEN REINHARDT, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge BEA:

Concurrence by Judge REINHARDT.

BEA, Circuit Judge:

This case calls upon us to decide whether the national motto of the United States "In God We Trust, " and its inscription on the Nation's coins and currency, violates the Establishment Clause of the First Amendment or the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. 2()00bb et seq, or both. We hold our decision in Aronow v. United States, 432 F.2d 242 (9th Cir.1970), forecloses both claims. Accordingly, we affirm the district court's order dismissing this case under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

I. Factual and ProceduralBackground

Plaintiff Michael A. Newdow ("Newdow") is an ordained minister and founder of the First Amendmist Church of True Science ("FACTS"). Newdow and the members of FACTS are Atheists "whosereligious beliefs are specifically and explicitly based on the idea that there is no god."

This case is part of a group of lawsuits Newdow has started challenging various government-sanctioned references to God.¹In this action, Newdow alleges the statute that establishes "In God We Trust" as the national motto, 36 U.S.C. § 302, ² and the statutes that require the motto's inscription on the Nation's coins and currency, 31 U.S.C. §§ 5112(d)(1), ³ 5114(b), ⁴ violate the Establishment Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§ 2000bb et seq.⁵ Newdow asks this court to declare §§ 302, 5112(d)(1), and 5114(b) violate the Establishment Clause and RFRA. Newdow also requests injunctive relief to enjoin the Defendants from inscribing the motto on coins and currency, placing in the United States Code any act or law that references the motto, and "such and other further relief as this court deems proper.

The Defendants filed a motion to dismiss Newdow's action under Federal Rule of Civil Procedure 12(b)(6). In their motion, the Defendants contended, inter alia, Newdow lacks standing to sue; his Establishment Clause claim is foreclosed by Ninth Circuit precedent; and he failed to allege facts sufficient to state a RFRA claim.

The district court granted the Defendants' Rule 12(b)(6) motion to dismiss. As an initial matter, the district court held Newdow had standing to bring his claims. According to the district court, Newdow suffered a cognizable injury-in-fact because the motto forced him repeatedly to confront a religious symbol he found offensive. The district court further held a judicial declaration that the motto is unconstitutional would redress this injury.

The district court dismissed the Legislative Branch Defendants (Congress and the Law Revision Counsel) as immune from suit under the Speech and Debate Clause of Article I of the United States Constitution. See U.S. Const, art. I, § 6, cl. 1 ("[F]or any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place."). Newdow did not appeal this ruling.

Turning to the merits of the case, the district court held our decision in Aronotv forecloses Newdow's Establishment Clause claim. The district court held Aronow also bars Newdow's RFRA claim, because the RFRA claim rests on Newdow's "assertion that the motto is blatantly religious" and thus "simply restate[s]" the Establishment Clause claim. Therefore, the district court dismissed Newdow's complaint for failure to state a claim upon which relief can be granted.

Newdow's timely appeal to this court followed.

II. Standard of Review

We review de novo the district court's grant of a motion to dismiss under Rule 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). When we review the grant of a motion to dismiss, "we accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Id.

III. Standing

The Defendants contend Newdow lacks standing to challenge the statutes that adopt "In God We Trust" as the national motto and require its inscription on coins and currency.⁶ The "irreducible constitutional minimum of standing" contains three elements: (1) injury-in-fact; (2) causation; and (3) redressability. Lujan v Defenders of Wildlife, 504 U.S. 555, 56061, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

[2, 3] Newdow has standing to challenge the statutes that require the inscription of the motto on coins and currency, 31 U.S.C. §§ 5112(d)(1) and 5114(b). Newdow alleges—given the ubiquity of coins and currency in everyday life—the placement of "In God We Trust" on the Nation's money forces him repeatedly to encounter a religious belief he finds offensive. Under our precedent, "spiritual harm resulting from unwelcome direct contact with an allegedly offensive religious (or anti-religious) symbol is a legally cognizable injury and suffices to confer Article III standing." Vasquez v. L.A. County, 487 F.3d 1246, 1253 (9th Cir. 2007). That Newdow's encounters with the motto are common to all Americans does not defeat his standing, because Newdow has alleged a concrete, particularized, and personal injury resulting from his frequent, unwelcome contact with the motto. See FEC v. Akins, 524 U.S. 11, 24, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) ("[Wlhere a harm is concrete, though widely shared, the Court has found 'injury in fact.'"). Further, Newdow's unwelcome contact with the national motto is caused by the statutes requiring the placement of the motto on coins and currency, and is redressable by an injunction ordering the removal of the motto from coins and currency.⁷ Thus, Newdow satisfies all three requirements for Article III standing as to his challenge to 5112(d)(1) and 5114(b).⁸

Nevertheless, Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes "In God We Trust" is the national motto.⁹ Unlike §§ 5112(d)(1) and 5114(b), § 302 does not authorize or require the inscription of the motto on any object. Without §§ 5112 and 5114, the motto would not appeal' on coins and currency, and Newdow would lack the "unwelcome direct contact" with the motto that gives rise to his injury-in-fact. Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stigmatic injury upon them, an "abstract stigmatic injury" resulting from such outsider status is insufficient to confer standing. See Allen v. Wright 468 U.S. 737, 755-56, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).

Newdow alleges, however, the injury caused by the national motto is personal because he was "recently refused a job because of the [misperception] of his activism" and has given up hope of obtaining elected office because of government-perpetuated anti-Atheism bias. Nevertheless, these claims are insufficient to establish standing, because Newdow cannot show these claimed injuries are traceable to the Defendants, and not to the actions of third parties who are not before this court—i.e., the employer who denied Newdow a job or the electorate whom Newdow alleges would not elect him to public office.¹⁰ See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 28, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (holding the indigent plaintiffs lacked standing to challenge an Internal Revenue Service Ruling that provided favorable tax treatment to hospitals who denied certain services to indigents, because it was "purely...