Newdow v. Lefevre

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL A. NEWDOW, 

Plaintiff-Appellant,

v.

PETER LEFEVRE, Law Revision

Counsel; UNITED STATES OF

AMERICA; HENRY M. PAULSON, JR.,* No. 06-16344

Secretary of the Treasury;

HENRIETTA HOLSMAN FORE,

Director, United States Mint;

 D.C. No.

CV-05-02339-FCD

THOMAS A. FERGUSON, Director, OPINION

Bureau of Engraving and Printing;

THE CONGRESS OF THE UNITED

STATES OF AMERICA,

Defendants-Appellees,

PACIFIC JUSTICE INSTITUTE,

Defendant-Intervenor-Appellee.



Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

December 4, 2007—San Francisco, California

Filed March 11, 2010

Before: Dorothy W. Nelson, Stephen Reinhardt, and

Carlos T. Bea, Circuit Judges.

*Henry M. Paulson, Jr. is substituted for his predecessor, John W.

Snow, as Secretary of the Treasury, pursuant to Fed. R. App. P. 43(c)(2).

4195

4198 NEWDOW v. LEFEVRE

Opinion by Judge Bea;

Concurrence by Judge Reinhardt

COUNSEL

Michael A. Newdow (argued), in pro per, Sacramento, Cali-

fornia; for the plaintiff-appellant.

Peter D. Keisler, McGregor W. Scott, Robert M. Loeb, Low-

ell V. Sturgill Jr. (argued), Department of Justice, Washing-

ton, D.C.; for defendants-appellees the United States of

America et al.

Kevin T. Snider (argued), Pacific Justice Institute, Sacra-

mento, California; for defendant-intervenor-appellee Pacific

Justice Institute.

NEWDOW v. LEFEVRE 4199

Norman Goldman, Law Office of Norman Goldman, Los

Angeles, California; for Atheists and Other Freethinkers as

Amicus Curiae in Support of plaintiff-appellant.

Edward L. White III, Thomas More Law Center, Ann Arbor,

Michigan; for the Thomas More Law Center as Amicus

Curiae in Support of the defendants-appellees.

Erik W. Stanley, Mary E. McAlister, Liberty Counsel, Lynch-

burg, Virginia; Mathew D. Staver, Anita L. Staver, Liberty

Counsel, Maitland, Florida; 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, California; John Casoria, Law Office of

John Casoria, Coto de Caza, California; 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. Dupré, Foun-

dation for Moral Law, Montgomery, Alabama; for the Foun-

dation 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, California; 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, Virginia; for Wallbuilders, Inc.,

as Amicus Curiae in Support of the defendants-appellees.

4200 NEWDOW v. LEFEVRE

OPINION

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 Reli-

gious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C.

§§ 2000bb 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 dis-

missing 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 Procedural Background

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 “whose religious 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.1

In 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

1

Named as Defendants in this case are the United States of America, the

Congress of the United States of America, the Law Revision Counsel, the

Secretary of the Treasury, the Director of the United States Mint, and the

Director of the Bureau of Engraving and Printing (“Defendants”). The dis-

trict court allowed the Pacific Justice Institute, a “Sacramento-based, non-

profit organization dedicated to defending religious and civil liberties,” to

intervene as a defendant.

2

“ ‘In God we trust’ is the national motto.” 36 U.S.C. § 302.

NEWDOW v. LEFEVRE 4201

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 suffi-

cient 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 reli-

gious 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 Defen-

dants (Congress and the Law Revision Counsel) as immune

from suit under the Speech and Debate Clause of Article I of

3

“United States coins shall have the inscription ‘In God We Trust.’ ” 31

U.S.C. § 5112(d)(1).

4

“United States currency has the inscription ‘In God We Trust’ in a

place the Secretary decides is appropriate.” 31 U.S.C. § 5114(b).

5

Newdow also brought claims under the Free Exercise Clause, the Free

Speech Clause, and the Equal Protection Clause, but he has abandoned

those claims on appeal.

4202 NEWDOW v. LEFEVRE

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 Aronow forecloses Newdow’s Establishment

Clause claim. The district court held Aronow also bars New-

dow’s RFRA claim, because the RFRA claim rests on New-

dow’s “assertion that the motto is blatantly religious” and thus

“simply restate[s]” the Establishment Clause claim. There-

fore, 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

[1] 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” con-

tains three elements: (1) injury-in-fact; (2) causation; and (3)

redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992).

6

Standing to bring a RFRA challenge is “governed by the general rules

of standing under article III of the Constitution,” 42 U.S.C. § 2000bb-1(c),

so our standing analysis in this section applies equally to Newdow’s

Establishment Clause and RFRA claims.

NEWDOW v. LEFEVRE 4203

[2] 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 reli-

gious (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 con-

crete, particularized, and personal injury resulting from his

frequent, unwelcome contact with the motto. See FEC v.

Akins, 524 U.S. 11, 24 (1998) (“[W]here 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 injunc-

tion 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

7

The Defendants contend Newdow’s injury is not redressable because

he requests injunctive relief that would prohibit the Defendants from con-

tinuing to place the motto on coins and currency in the future. This injunc-

tion, the Defendants assert, would leave untouched the vast quantities of

currency already in circulation and thus would not “appreciably reduce”

Newdow’s exposure to the motto. Nevertheless, Newdow’s complaint also

asks for “such and other further relief” as we may deem proper, which

could include an injunction requiring the replacement of currency already

in circulation.

8

The Defendants assert Newdow is collaterally estopped from alleging

the placement of the motto on coins and currency causes him an injury-in-

fact. In support, the Defendants cite our decision in Newdow v. Bush, 89

F. App’x 624 (9th Cir. 2004) (unpublished memorandum disposition),

where we held Newdow lacked Article III standing to bring an Establish-

ment Clause challenge to clergy-led prayer at the 2001 presidential inau-

4204 NEWDOW v. LEFEVRE

[3] 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

appear 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 stig-

matic injury upon them, an “abstract stigmatic injury” result-

ing from such outsider status is insufficient to confer standing.

See Allen v. Wright, 468 U.S. 737, 755-56 (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

guration, because Newdow failed to allege a “sufficiently concrete and

specific injury.” The Defendants’ collateral estoppel argument lacks merit

because Newdow v. Bush involved a different Establishment Clause chal-

lenge from the present case. See Blackfoot Livestock Comm’n Co. v. Dept’

of Agriculture, Packers & Stockyards Admin., 810 F.2d 916, 922 (9th Cir.

1987) (holding a party cannot invoke collateral estoppel if “the factual

issues litigated were different from those in the present case”).

9

During oral argument, Newdow conceded he could not establish stand-

ing to challenge § 302, were it not for the statutes requiring the inscription

of the motto on coins and currency. Oral Argument (Dec. 4, 2007) at

7:00-8:30.

10

Further, Newdow does not allege he ever sought public office, so any

injury resulting from his failure to attain public office is purely hypotheti-

cal and insufficient to show injury-in-fact. See Lujan, 504 U.S. at 560

(holding an injury must be “concrete and particularized,” and not “conjec-

tural” or “hypothetical,” to give rise to Article III standing).

NEWDOW v. LEFEVRE 4205

Org., 426 U.S. 26, 28, 41-42 (1976) (holding the indigent

plaintiffs lacked standing to challenge an Internal Revenue

Service Ruling that provided favorable tax treatment to hospi-

tals who denied certain services to indigents, because it was

“purely speculative” whether the denials of service could be

traced to the Revenue Ruling or, instead, to decisions made by

the hospitals without regard to any tax implications).

[4] In sum, Newdow lacks standing to challenge § 302, but

has standing to challenge §§ 5112(d)(1) and 5114(b).

IV. The Establishment Clause

[5] The Establishment Clause of the First Amendment

states: “Congress shall make no law respecting an establish-

ment of religion.” U.S. Const. amend. I. The Establishment

Clause prohibits the enactment of a law or official policy that

“establishes a religion or religious faith, or tends to do so.”

Lynch v. Donnelly, 465 U.S. 668, 678 (1984).

Newdow alleges the placement of “In God We Trust” on

coins and currency violates the Establishment Clause.

According to Newdow, the motto unconstitutionally places

the government’s imprimatur on a belief in a monotheistic

God. Newdow further alleges the national motto turns him

and other Atheists into political outsiders by reinforcing the

“twin notions that belief in God is ‘good,’ and disbelief in

God is ‘bad.’ ” Thus, Newdow asserts the statutes requiring

the inscription of the motto on coins and currency run afoul

of the Establishment Clause.

[6] Newdow’s Establishment Clause claim is foreclosed by

our decision in Aronow v. United States, 432 F.2d 242 (9th

Cir. 1970). In Aronow, we held the national motto, “In God

We Trust,” and the statutes requiring its placement on coins

and currency, do not violate the Establishment Clause. Id. at

243. We reasoned:

4206 NEWDOW v. LEFEVRE

It 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 and bears no true resemblance to a govern-

mental sponsorship of a religious exercise.

* * *

It is not easy to discern any religious significance

attendant the payment of a bill with coin or currency

on which has been imprinted ‘In God We Trust’ or

the study of a government publication or document

bearing that slogan. . . . While ‘ceremonial’ and

‘patriotic’ may not be particularly apt words to

describe the category of the national motto, it is

excluded from First Amendment significance

because the motto has no theological or ritualistic

impact. As stated by the Congressional report, it has

‘spiritual and psychological value’ and ‘inspirational

quality.’

Id. at 243-44 (footnotes omitted).11

Newdow concedes his Establishment Clause challenge is

“essentially identical” to the one raised in Aronow, but con-

tends Aronow is not binding precedent. As a general rule, we,

as a three-judge panel, are without authority to “overrule a

circuit precedent; that power is reserved to the circuit court

sitting en banc.” Robbins v. Carey, 481 F.3d 1143, 1149 n.3

(9th Cir. 2007). Nevertheless, “where the reasoning or theory

11

Our sister circuits are in accord with Aronow. Indeed, every circuit to

address the question has held the national motto does not violate the

Establishment Clause. See, e.g., Lambeth v. Bd. of Comm’rs of Davidson

County, North Carolina, 407 F.3d 266, 270-73 (4th Cir.), cert. denied, 546

U.S. 1015 (2005); Gaylor v. United States, 74 F.3d 214, 217-18 (10th

Cir.), cert. denied, 517 U.S. 1211 (1996); O’Hair v. Murray, 588 F.2d

1144, 1144 (5th Cir.), cert. denied, 442 U.S. 930 (1979).

NEWDOW v. LEFEVRE 4207

of our prior circuit authority is clearly irreconcilable with the

reasoning or theory of intervening higher authority, a three-

judge panel should consider itself bound by the later and con-

trolling authority, and should reject the prior circuit opinion

as having been effectively overruled.” Miller v. Gammie, 335

F.3d 889, 893 (9th Cir. 2003) (en banc).

Newdow asserts the reasoning and theory of Aronow is

“clearly irreconcilable” with intervening Supreme Court pre-

cedent. According to Newdow, the Supreme Court’s Estab-

lishment Clause jurisprudence went through significant

changes since Aronow was decided. Specifically, Newdow

notes all of the Establishment Clause tests with which he

asserts “In God We Trust” is “incompatible” were developed

by the Supreme Court after Aronow was decided. Therefore,

Newdow contends Aronow is no longer binding precedent.

[7] We disagree. That the Supreme Court has developed

new Establishment Clause tests does not render Aronow

“clearly irreconcilable” with Supreme Court precedent. New-

dow did not and cannot cite a single Supreme Court case that

called into question the motto’s constitutionality or otherwise

invalidated Aronow’s reasoning or theory. To the contrary,

and consistent with Aronow, the Supreme Court has noted in

dicta the national motto does not violate the Establishment

Clause. See County of Allegheny v. ACLU, 492 U.S. 573,

602-03 (1989) (noting the motto is “consistent with the propo-

sition that government may not communicate an endorsement

of religious belief”); Lynch, 465 U.S. at 676 (noting the “sta-

tutorily prescribed national motto ‘In God We Trust’ ” is a

constitutional “reference to our religious heritage”); see also

United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17

(9th Cir. 2000) (“Supreme Court dicta have a weight that is

greater than ordinary judicial dicta as prophecy of what that

Court might hold; accordingly, we do not blandly shrug them

off because they were not a holding.” (citation and internal

quotation marks omitted)).

4208 NEWDOW v. LEFEVRE

Alternatively, Newdow asserts Aronow is not binding pre-

cedent because the district court in Aronow held the “plaintiff,

as a taxpayer and citizen, lacked standing to challenge the

validity of the statutes.” Aronow, 432 F.2d at 243. On appeal,

however, the Aronow court decided the merits of the Estab-

lishment Clause claim after assuming, but without deciding,

the plaintiff had standing. Id. Newdow contends Aronow’s

failure to address the standing question renders it without pre-

cedential value, because a court lacks subject matter jurisdic-

tion without Article III standing. See Bates v. United Parcel

Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc).

[8] This contention is without merit. The Supreme Court in

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83

(1998), decided after Aronow, invalidated the practice of “hy-

pothetical jurisdiction”—i.e., assuming jurisdiction for the

purpose of deciding the merits of a case. Id. at 93-94. After

Steel Co., a court cannot do what the Aronow court did:

address the merits of a case without ensuring it has jurisdic-

tion over the case. Nevertheless, the Supreme Court in Steel

Co. did not overturn the holdings of every case that had been

decided using the “hypothetical jurisdiction” approach; Steel

Co. held only that courts may not decide cases using that

approach in the future. Thus, Aronow’s failure to address

whether the plaintiff had standing does not undermine the pre-

cedential value of its holding that the national motto does not

violate the Establishment Clause.

[9] Accordingly, Newdow’s Establishment Clause chal-

lenge is foreclosed by Aronow.

V. Religious Freedom Restoration Act of 1993

(“RFRA”)

[10] Under RFRA, the government cannot “substantially

burden a person’s exercise of religion even if the burden

results from a rule of general applicability,” unless the gov-

ernment can show the rule is in furtherance of a “compelling

NEWDOW v. LEFEVRE 4209

governmental interest” and is the “least restrictive means” of

furthering that governmental interest. 42 U.S.C. § 2000bb-1.

Newdow alleges the inscription of “In God We Trust” on

coins and currency substantially burdens the free exercise of

his religion in two primary ways. First, because Newdow’s

religion prohibits him from carrying currency that bears the

motto “In God We Trust,” Newdow is impeded in his ability

to engage in religious activities that require cash payments—

e.g., purchase of church attire, ingredients for the church liba-

tion “The Freethink Drink,” and books for the church library;

travel for religious purposes to locations that require cash

payments; and raise funds through cash donations. Second,

because Newdow cannot entirely avoid using money in his

daily life, the inscription of the motto on coins and currency

forces him to violate a basic tenet of his religion and requires

him to evangelize for a religious belief he expressly decries.

[11] The burdens Newdow contends are imposed by the

motto rest on a single premise: the motto represents a purely

religious dogma and constitutes a government endorsement of

religion.12 During oral argument, Newdow confirmed his

RFRA claim is dependent on his contention that the national

motto represents a religious dogma and constitutes govern-

mental sponsorship of religion. Newdow further confirmed he

does not claim his religious exercise would be burdened even

if the motto were not a purely religious dogma.

12

For instance, the complaint makes the following allegations: “New-

dow is forced to confront government-endorsed, purely religious dogma

. . . .”; “Defendants have chosen to place purely ((Christian) monotheistic)

religious dogma on the coins and currency . . . .”; “Defendants’ use of the

purely religious, (Christian) monotheistic motto has also substantially bur-

dened Newdow’s ability to meet and assemble with others for the purpose

of furthering his ministry.”; “[Newdow is] forced to evangelize for (Chris-

tian) Monotheism precisely as Congress and others envisioned.” New-

dow’s opening brief in this court similarly alleges: “Defendants have

essentially compelled [Newdow] to bear on his person items that make a

purely religious claim . . . .”; and “Plaintiff is, in essence, forced to advo-

cate for Monotheism, a religious belief system he expressly repudiates.”).

4210 NEWDOW v. LEFEVRE

[12] As a result, Newdow’s RFRA claim is barred by Aro-

now. Although Aronow was an Establishment Clause chal-

lenge to the motto, and did not involve a RFRA claim,

Aronow forecloses the central premise of Newdow’s RFRA

claim: the motto is a purely religious dogma and a govern-

ment endorsement of religion. Aronow held the national motto

is of a “patriotic or ceremonial character,” has no “theological

or ritualistic impact,” and does not constitute “governmental

sponsorship of a religious exercise.” Aronow, 432 F.2d at

243-44.

VI. Conclusion

We hold Newdow lacks standing to challenge 36 U.S.C.

§ 302. Newdow’s Establishment Clause challenge against 31

U.S.C. §§ 5112(d)(1) and 5114(b) and his RFRA claim are

foreclosed by binding Ninth Circuit precedent. We dismiss

Newdow’s challenge to § 302 for lack of jurisdiction, and

affirm the district court’s order dismissing the remaining

causes of action for failure to state a claim upon which relief

can be granted.

AFFIRMED.

REINHARDT, Circuit Judge, concurring in the result only:

The majority opinion in Newdow v. Rio Linda Union

School District, No. 05-17257, which has today become the

law of the circuit, fails to comprehend the constitutional prin-

ciples set forth in the relevant Establishment Clause cases that

the Supreme Court has decided in the years following our

decision in Aronow v. United States, 432 F.2d 242 (9th Cir.

1970). See Rio Linda dissent passim (Reinhardt, Circuit

Judge). Because I am now required to follow that precedent,

no matter how misguided, I am also now required to conclude

that Newdow’s claims in this case are foreclosed by Aronow,

NEWDOW v. LEFEVRE 4211

and therefore to concur in the result. I do not express any

view as to what result I might have reached in the absence of

the numerous errors of constitutional law that the majority

made in Rio Linda, and the erroneous result it reached.