Petition for Writ of Certiorari — Newdow v. Lefevre

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Supreme Court, U.S.

FILED

19-893 JAN 4- 2011

No. QFFICE OF THE CLERK

IN THE

Supreme Court of the United States

Petitioner,

PETER LEFEVRE, LAW REVISION COUNSEL,

ET AL;

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

—— Ea — pa as

PETITION FOR WRIT OF CERTIORARI

1 Rese pamacommethan a ae Pea ——_ eer

Michael Newdow, pro se

and Counsel of Record

Post Office Box 233345

Sacramento, CA 95823

NewdowLaw@gmail.com

(916) 427-6669

QUESTIONS PRESENTED

(1) Whether “In God We Trust.” as insertbed on

the nation’s coins and currency bills, violates

the Establishment Clause of the First

Amendment.

(2) Whether “In God We 'Trust,” as inscribed on

the nation’s coins and currency bills, violates

Petitioner's rights under the Religious

reedom Restoration Act. (42 U.S.C. § 2000bb-

2000bb-4 (2006)).

LIST OF ALL PARTIES

Plaintiff/Petitioner

(1) Michael Newdow

Defendants/Respondents

(1) Peter Lefevre, Law Revision Counsel

(2) The United States of America

(3) Timothy I*. Geithner, Secretary of the

Treasury!

(4) Edmund C. Moy, Director, United States Mint?

(5) Larry R. Felix, Director, Bureau of Engraving

and Printing?

(6) The Congress of the United States of America,

(7) Pacifie Justice Institute

'Timothy Ff. Geithner, Secretary of the Treasury, is substituted

for his predecessor, Henry M. Paulson, Jr., who himself was

substituted for his predecessor, John W. Snow, pursuant to Fed

R. App. P. 438(c)(2)

Kdmund C. Moy, Director of the United States Mint, 1s

substituted for his predecessor, Hennetta Hoisman Fore

3 Larry R. Felix, Director of the Bureau of Engraving and

Printing, is) substituted for his predecessor, Thomas A

Ferguson.

' The Pacific Justice Institute appeared in this case as a

Defendant-Intervenor

TABLE OF CONTENTS

QUESTIONS PRESENTED 24. cecsecssvevsovesersccssssvesse i

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Defendants/Respondents .............ccecececeeeeeeees il

TABLE OF APPENDIC BS oeccccosccsiccsecscvcssscezessessss Vv

TABLE OF CITED AUTHORITIES .................. vi

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CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED IN

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STATEMENT OF THE CASE.................ccccsceceseees 2

RULING OF THE COURT OF

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REASONS FOR GRANTING THE

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I. AUNITED STATES COURT OF

APPEALS HAS DECIDED AN

IMPORTANT QUESTION OF

FEDERAL LAW THAT HAS NOT

BEEN, BUT SHOULD BE,

SETTLED BY THIS COURT....................5

Il. “IN GOD WE TRUST”

PERPETUATES THE

DISENFRANCHISEMENT OF

THE NATION’S MOST DESPISED

TE Te seats cinidstavrecaintsstbvenisunieneerisbercesen 21

1. THE NINTH CIRCUIT'S RFRA

RULING CONFLICTS WITH THIS

COURT'S JURISPRUDENCE

(AND THUS, AS EXPECTED,

CONFLICTS WITH THE

JURISPRUDENCE OF ITS

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TABLE OF APPENDICES

Appendix A

Court of Appeals’ Opinion

(ited March 11, 2010) ...................000.00ec0000. App. 1

Appendix B

42 U.S.C. § 2000bb-2000bb-4 (2006)

(pursuant to Supreme Court Rule

PR ss stiniescl ied ee App. 19

Appendix C

Court of Appeals’ Order denying

Appellant’s Petition for Panel

Rehearing and the Suggestion for

Rehearing En Banc

(hiled Uetober 6; DOU) o.cccicsccccccccscsecccecss App. 23

Appendix D

District Court’s Dismissal Order

CERRO SUING 1F,, DOIG) in cc neccsevccsicsasenssansseae App. 25

Appendix I

Aronow District Court’s Order

(filed September 30, 1968) ....................... App. 44

Appendix F

Aronow Court of Appeals Opinion

(7G Coctomet G, TBTG) .....5..cccncesoscsveocosdicces App. 47

TABLE OF CITED AUTHORITIES

Cases

ACLU v. Capitol Square Review & Advisory

Be, FO BOO CP CAE. DOLD vnccssneccccscescvesessvecces g

Adarand Constructors v. Pena, 515 U.S. 200

SRA TE Aa ye Rare ea PT CEE Ee ERA ae FOR 18

Allegheny County v. Greater Pittsburgh

BCLU, 482 U.S. B73 CAGED) .....sccccsseccescccccsecess passim

Allen v. Wright, 468 U.S. 737 (1984).................... 5, 25

American Atheists, Inc. v. Duncan, 616 F.3d

1145 (108 Cir, 2010) cccccccccccecccscscecescsecescseeseveceseseesees 6

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

SNE ocx cticaicternassGtadecesssaees Deaaceeudecuceed 4, 5, 26, 30

Baker v. Carr, 369 U.S. 186 (1962) ............................ 4

Bd. of Educ. v. Grumet, 512 U.S. 687 (1994)........... 21

Berghuis v. Thompkins, 1308. Ct. 2250

i vecapccues 12

Croft v. Perry, 624 F.3d 157 (5 Cir. 2010)................ 9

Dickerson v. United States, 530 U.S. 428

castle 12

Elk Grove Unified Sch. Dist. v. Newdow, 542

I I eo genous at ad duvaaunavavedaweds 9,13, 14

DN Rac cco ch lanicei i soesdabs danonteacincasvesdrartacek extsalnes 14, 15, 26

Engel v. Vitale, 370 U.S. 421 (1962)... ee 22

Freethought Soc'y v. Chester County, 334

ee nF Ga GE) i haiicn daca dckaataachdevesssaiewesnnnes nies 9

Gaylor v. United States, 74 F.3d 214 (10%

2 I, ) SAISPAM OM eller Peer ere tne OL eee ete 5, 9, 11

Kedroff v. St. Nicholas Cathedral of Russian

Orthodox Church, 344 U.S. 94 (1952) wo... 24

Kidd v. Obama, No. 10-5006, 2010 U.S. App.

LEXIS 15154 (D.C. Cir. July 21, 2010).......0.000.0000.. 5

Lambeth v. Bd. of Comm'rs, 407 F.3d 266 (4th

CPN Cv euxgutoes: Kade ewrsariien eee utes 1]

Lee v. Weisman, 505 U.S. 577 (1992) ....................08- 20

Locke v. Davey, 540 U.S. 712 (2004)... ee. 16, 25

Lynch v. Donnelly, 465 U.S. 668 (1984)......... 8, 13, 20

Marsh v. Chambers, 463 U.S. 783 (1983) .... 12, 17, 18

McCreary County v. ACLU, 545 U.S. 844

Race ccaicak tirceeigcicvaseusateasanceseuiessesisurerecsaninn ent passim

McDonald v. City of Chicago, 130 S. Ct. 3020

RRMA A FIRS LB se oPAN AND Ye VON Set) csis Sea 19

Newdow v. Lefevre, 598 F.3d 638 (9 Cir.

Se a rer er ne ee eee en et Tee ey l

Newdow v. Rio Linda Union Sch. Dist., 597

F.3d 1007 (9tP Cir. 2010) ....cccccccccccccescescecseceseeseeesecees 6

Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir.

BP RD as siicvissscisnenesevaviesols eae ee 9

North Carolina Civil Liberties Union Legal

Foundation v. Constangy, 947 F.2d 1145

(Ath Cir, 1991) cocccccccceccccecsceceseseeccecevsceseeee, ee? 5, 9

O'Hair v. Blumenthal, 462 F. Supp. 19

COU Ed, FO. LIFE hcdsicedeteeecste eee 5

O’Hair v. Murray, 588 F.2d 1144 (5t» Cir.

OTE) vn iacenscusersicdenssnglaisuntesdroeeeeeta ee 5

Pearson v. Callahan, 129 S. Ct. 808 (2009) ............. 11

Pelphrey v. Cobb County, 547 F.3d 1263 (11th

CAP DOD oassscccavienssacovenstavtsbuiapienalee eee 6

Petition of Plywacki, 107 F. Supp. 593 (D.

ROW, EOIED sias snvasencitisispktnacccnguncencceciaa eee 24

Rosenberger v. Rector & Visitors of the Univ.

of Va., 515 U.S. 819 (1995) .ccccccccceseseccsseseecsceceeeece. 17

Rosenberger v. University of Virginia, 515

UF BBs. DES Cais ikea tn ceierarctnoiee ete 6

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

FOG CRDOBY ooo icdieonr din ee ee 18

Sherbert v. Verner, 374 U.S. 398 (1968)............0...0.. 28

Sherman v. Cmty. Consol. Sch. Dist. 21, 980

2a 437 (7? Ct. TER .o eee 9 11

Vill

Skoros v. City of New York, 437 F.3d 1 (24

ese cc cccsssssesesactscesescoacenoroserecess 6

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502

Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83 (1998) ......c cece ee eeeee 4

Van Orden v. Perry, 545 U.S. 677 (2005)....... 7, 18, 19

Wallace v. Jaffree, 472 U.S. 38 (1985)... 18

Constitutional Provisions

a, aomet. AMONG, I................... Leseseseereveees PASSIM

Ree MPNRIG, UTI@TIG, AALV.........0..0.ccccosccccessccscccsccccnce by OD

Statutes

28 U.S.C. § 1254 (2006) ....... seis exeaseveneee &

eens. © Loot (2006) ................. 3

28 U.S.C. § 1343 (2006) ......... ee: | | 3

art. © £346 (2006) ............... , wwe O

28 U.S.C. § 2201 (2006) .......... 1 re

at, © 2202 (2006) ............... De lunedwnkektaienavencesesees

28 U.S.C. § 2254 (2006) ...... rae 12

31 U.S.C. § 5112 (2006) ........ eee |

31 U.S.C. § 5114 (2006) ......... om ieeedceon

He US Rh Gee CHD cnc ccceconcanescccceccccc: alee

42 U.S.C. § 2000bb-2000bb-4 (2006) aes me Pe

42 U.S.C. § 2000cc-2000cc-4 (2006)..........0000.. 28

Other Authorities

| Journals of the Continental Congress, 1774

1789 (Worthington Chauncey Ford ed., 1904)...... 15

151 Cong. Rec. H6385-86 (July 25, 2005) ................ 25

3 Martin E. Marty, Modern American Religion

[ REMIT \ oc sccoukanessdccecousieccnchansacncaseuasdensneusacanatskasaehis .. 24

Clarence Thomas. An Afro-American

Perspective: Toward a “Plain Reading” of the

Constitution -- The Declaration of

Independence in Constitutional

Interpretation. 1987 How. L.J. 691 (1987).............17

Kisenhower Joins in a Breakfast Prayer

Meeting,” New York Times, February 5, 1954...... 24

H.R. Rep. No. 662, 84'» Cong., 15* Sess. 2

DEE caesar sturssuauauédausscudiunulcaedcansuwdensaduuasructertvaccetesken

House Document 108-227, 108t Cong. 2"4

Sess. Ronald Reagan, Late a President of the

Michael Newdow, Question to Justice Scalia:

Does the Establishment Clause Permit the

Disregard of Devout Catholics? 38 Cap. U. L.

EL, a rire epee nlep Aliyah ete ANE DLE

The Federalist No. 78 (Alexander Hamilton) ..........

Will Herberg, Protestant - Catholic — Jew: An

Essay in American Religious Sociology

PN cae sented dactfocida aa ca weatoent bested sewiedee ate cana

Websites

http://people-

press.org/reports/display.php3?ReportID=150.....

http://pewforum.org/Public-Expresses-Mixed.

Views-of-Islam-Mormonism. aspX...............0000ee000

http://www.gallup.com/poll/26611/Some-

Americans-Reluctant-Vote-Mormon-

72YearOld-Presidential-Candidates.aspx ............

http://www.newsweek.com//2007/03/30/god-s-

I IN bcc ocsasescss di pone sndcecheceemmnicdensevigevccsedsies

OPINION BELOW

The opinion of the United States Court of

Appeals for the Ninth Circuit is available at Newdow

vu. Lefevre, 598 F.3d 638 (9% Cir. 2010). It is reprinted

in the attached Appendix A (App. 1-18).

JURISDICTION

The United States Court of Appeals for the

Ninth Circuit filed its decision on March 11, 2010,

and entered an order denying petitioner’s motion for

rehearing on October 8, 2010. By writ of certiorari,

this Court has jurisdiction under 28 U.S.C. § 1254(1)

to review the Court of Appeals’ decision.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THIS CASE

The issues in this case are based on the First

Amendment's Religion Clauses (“Congress _ shal]

make no law respecting an establishment of religion,

or prohibiting the free exercise thereof’), and on the

Religious Freedom Restoration Act (42 U.S.C. §

2000bb-2000bb-4 (2006)). See Appendix B (App. 19-

22). It is contended that these constitutional and

statutory provisions are violated by 31 U.S.C. §

5112(d)(1) (2006) (“United States coins shall have the

inscription ‘In God We Trust’. ...”) and 31 U.S.C. §

5114(b) (2006) (“United States currency has the

inscription ‘In God We Trust’ in a place the Secretary

decides is appropriate. ...”). Additionally, along with

36 U.S.C. § 302 (2006) (“In God we trust’ is the

national motto”), these statutes stigmatize those

with Atheistic beliefs.

STATEMENT OF THE CASE

This case involves a challenge to the federal

government's use of the phrase “In God We Trust” on

the nation’s coins and currency bills. Petitioner — a

minister in an Atheistic church and also a

numismatist contends that this use endorses

Monotheism, which is a religious belief system

completely incompatible with, and contrary to, his

own religious ideology.

The use of “In God We ‘Trust” on the money

interferes with Petitioner's ministry. Not only is that

claim sacrilegious in its assertion that God exists,

but it forces Petitioner (as well as his’ fellow

parishioners and clergy) to choose between avaliing

himself of the right to use the sole legal tender

manufactured by the government and violating his

religious duties.” Newdow and his religious brethren

emphatically do not trust in God, which they, as

Americans, believe they are implying when they use

the nation’s coins and currency. Accordingly,

spending and/or accepting United States money 1s

always problematic. This matter is especially acute

when it relates to church functions. When “the plate”

is passed during church services, nothing 1s obtained

unless parishioners go out of their way to bring

personal checks or find money (without “In God We

Trust”) from decades past. Purchasing materials for

church functions — particularly when credit cards or

checks are not taken — becomes exceedingly difficult

In addition to denying the existence of any god, members of

Newdow’s church follow three basic tenets: (1) Question, (2) Be

Honest, and (3) Do What's Right. Declaration of Michael

Newdow, May 9, 2006, 9 7 (Excerpts of Record (FOR) at 232)

‘)

Furthermore, when seeking to proselytize during

travel to foreign nations, transaction costs for

obtaining local coins and currency become excessive.

Defendants’ Monotheistic inscriptions, therefore,

violate not only the Establishment Clause, but the

Free Exercise Clause and the Religious Freedom

Restoration Act (““RFRA‘“)® as well.

By forcing him to confront the espousal of God's

existence every time he looks at a monetary

instrument minted by his national government,

Defendants also severely curtail Petitioner's

numismatic desires. Furthermore, those numismatic

activities in which he does engage are rendered far

less enjoyable than would be the case were the

government to refrain from Monotheistic religious

advocacy when minting and engraving its coins and

currency.

With his claims arising under the Constitution

of the United States, Petitioner filed this lawsuit

pursuant to 28 U.S.C. § 1331. Jurisdiction also

existed under 28 U.S.C. § 1346(a)(2) and under 42

U.S.C. § 2000bb-1(c). Declaratory rehef was sought

pursuant to 28 U.S.C. § 2201(a) and § 2202, and

injunctive relief was sought pursuant to 28 U.S.C. §§

1343(a)(3) and (a)(4)

’ 42 USC. § 2000bb—-l(a) states, “Government shall not

substantially burden a person's exercise of relignon even if the

burden results from a rule of general applicability, except as

provided in subsection (b) of this section.” Subsection (b) states,

“Government may substantially burden a person's exercise of

religion only if it demonstrates that applhcation of the burden to

the person (1) 1s in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering that

compelling governmental interest.” See Appendix B at App. 20

RULING OF THE COURT OF APPEALS

The Court of Appeals ruled that Petitioner's

claims were foreclosed by binding Ninth Circuit

precedent. Specifically, in Aronow v. United States,

A432 F.2d 242, 243 (9th Cir. 1970), see Appendix F

(App. 47-52), the Ninth Circuit had held 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.”

NOTE REGARDING ARONOW

The Ninth Circuit rendered its Aronow decision

even though the District Court had explicitly found

that the plaintiff there lacked standing. 432 F.2d at

243. See also Aronow District Court’s Order dated

September 30, 1968. Appendix FE at App. 45 (4 5).

Furthermore, the lower court had described the

Complaint as “unintelligible.” Jd. (§ 3). Thus, the

Aronow judges were not assured of “that concrete

adverseness which sharpens the presentation of

issues upon which the court so largely depends for

Wlumination of difficult’ constitutional questions.”

Baker v. Carr, 369 U.S. 186, 204 (1962)

Kurthermore, by ruling on the merits without first

determining that it had jurisdiction, the Aronow

panel engaged in a process that has since been

deemed impermissible. Steel Co. v. Citizens for a

Better Environment, 523 U.S. 83 (1998).

Upon this insubstantial foundation, not only the

Ninth Circuit Gn the case at bar), but three other

Circuits have upheld the constitutionality — of

governmental espousals of “In God We Trust.” Kidd

v. Obama, No. 10-5006, 2010 U.S. App. LEXIS 15154

(D.C. Cir. July 21, 2010) (unpublished opinion);

Gaylor v. United States, 74 F.3d 214, 216 (LO Cir.

1996); O’'Hair v. Murray, 588 F.2d 1144 (5 Cir.

1979) (per curiam) (relying on O'Hair v. Blumenthal,

462 F. Supp. 19, 19-20 (W.D. Tex. 1978)). See also

North Carolina Civil Liberties Union Legal

Foundation v. Constangy, 947 F.2d 1145, L151 (4%

Cir. 1991) (enjoining state judge's courtroom prayers,

while citing Aronow for the proposition that “In God

We Trust” has “no theological or ritualistic impact”).

Accordingly, if (as Petitioner argues) the inscription

of “In God We Trust” on the nation’s money (i)

violates the [Establishment Clause, (11) violates

RFRA, and (in) relegates the nation’s Atheists to

second-class status, it does so largely due to

precedent from a case that took root) with an

“unintelligible” complaint and that lacked “perhaps

the most important” jurisdictional requirement.

Allen v. Wright, 468 U.S. 737, 750 (1984).

REASONS FOR GRANTING THE PETITION

Il. AUNITED STATES COURT OF APPEALS

HAS DECIDED AN IMPORTANT QUESTION

OF FEDERAL LAW THAT HAS NOT BEEN,

BUT SHOULD BE, SETTLED BY THIS

COURT

Religion (in general) and God (in particular)

are huge issues in our society, and whether or how

government should involve itself in those issues are

matters of great national importance. Accordingly,

”)

clearly defined parameters are needed to guide both

those who serve in the legislative and executive

branches, and those who are asked to adjudicate the

myriad religion cases filling the dockets of the state

and federal courts. Yet, in the fifteen years since this

Court’s Establishment Clause jurisprudence was

characterized as being “in hopeless” disarray,”

Rosenberger v. University of Virginia, 515 U.S. 819,

861 (1995) (Thomas, J. concurring), it seems that

little has changed. Accordingly, judges “struggl[e]

mightily to articulate when government action has

crossed the constitutional line,” American Atheists,

Inc. v. Duncan, 616 F.3d 1145, 1156 (10% Cir. 2010),

attributing this difficulty to “the Supreme Court’s

failure to ‘prescribe a general analytic framework

within which to evaluate Establishment Clause

claims.” /d. (citation omitted). Similarly, “the Court’s

Kstablishment Clause jurisprudence is often derided

as inconsistent,” Newdow v. Rito Linda Union Sch.

Dist., 597 F.3d 1007, 1074 (9 Cir. 2010) (Reinhardt,

J., dissenting), with “less-than-clear Supreme Court

precedent,” Skoros v. City of New York, 437 F.3d 1,

43 (2™ Cir. 2006) (Straub, J., concurring and

dissenting), leading to “no clear consensus among our

sister circuits.” Pelphrey v. Cobb County, 547 F.3d

1263, 1274 (11 Cir. 2008).

This case 1s an ideal vehicle for ending this

perpetual confusion. Focusing as it does on an

activity that has often been used by justices to

justify? (or to be distinguished from’) other

’ See, e.g., McCreary County v. ACLU, 544 U.S. 844, 889 (2005)

(Scalia, J., dissenting) Qustifying a Ten Commandments

display); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 29

(2004) (Rehnquist, C.J., concurring) Gustifying “under God” in

constitutionally-suspect governmental practices, the

gravamen here provides a unique opportunity to

clarify the basic criteria by which Establishment

Clause analyses should proceed.

There are a number of reasons as to why this

is so. First, the governmental activity in this case is

purely federal, with only federal defendants having

been named. Thus, the original understanding of the

Establishment Clause can be considered, uncluttered

by Fourteenth Amendment “incorporation” issues.

Cf. Van Orden v. Perry, 545 U.S. 677, 692-93 (2005)

(Thomas, J., concurring); td. at 729-30 (Stevens, d.,

dissenting); and McCreary County v. ACLU, 545 U.S.

844, 898 (2005) (Scalia, J., dissenting) (all engaging

in a three-way colloquy over this issue).

Second, the unique history of “In God We

Trust” will allow the Court to offer key instruction as

to how a challenged practice’s origin ought to apply

in Establishment Clause evaluations. The motto

arose after a “minister of the gospel” wrote to the

Secretary of the ‘Treasury, seeking to have “the

recognition of Almighty God in some form in our

coins.”’ The Secretary then directed the Director of

the Mint to devise a motto to declare “|t]he trust of

the Pledge of Allegiance); id. at 37 (O'Connor, J., concurring)

(same); Lynch v. Donnelly, 465 U.S. 668, 676 (1984) Gustifying

creche display); id. at 693 (O'Connor, J., concurring) (same).

8 See, e.g., Van Orden ov. Perry, 545 U.S. 677, 716 (2005)

(Stevens, J., dissenting) (Ten Commandments _ display

distinguished); Allegheny County v. Greater Pittsburgh ACLU,

492 U.S. 573, 602-03 (1989) (creche display distinguished); id

at 625 (O'Connor, J., concurring) (same).

“H.R. Rep. No. 662, 84" Cong., 1st Sess. 2 (1955).

lend

our people in God.”!® With that direction in mind, the

Director placed in his 18638 Annual Report:

We claim to be a Christian nation -- why

should we not vindicate our character by

honoring the God of Nations in the exercise

of our political Sovereignty as a Nation?

Our national coinage should do this. Its

legends and devices should declare our

trust in God -- in Him who is the “King of

Kings and Lord of Lords.” ... Let us

reverently acknowledge his sovereignty,

and let our coinage declare our trust in

God.!!

How such a clearly religious heritage ought to impact

these difficult decisions 1s a matter about which the

lower courts need guidance.

In light of the motto’s history, “ceremonial

deism” can also be considered. Jurisprudentially first

introduced a quarter of a century ago (by Justice

Brennan, who prefaced his remarks by stating that “I

remain uncertain about these questions,” Lynch ov.

Donnelly, 465 U.S. 668, 716 (1984) (Brennan, J.,

dissenting)), “ceremonial deism” has been referenced

by the Supreme Court in only two other cases. In the

first, neither the plurality nor the concurrence

engaged in any discussion of its meaning or

significance. County v. Greater Pittsburgh ACLU,

492 U.S. 573, 595 n.46 (1989); td. at 603; td. at 630

10 Id. at 3.

'1 1863 Annual Report of the Director of the Mint, at 10-11 (as

provided in Anson Phelps Stokes, Church and State in the

United States, Vol. II (1950), at 602).

(O'Connor, J., concurring). Although Justice

O’Connor did offer some analysis in the second case,

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1,

37-44 (2004) (O'Connor, J., concurring), no other

justice joined in that concurrence. Accordingly, any

high court authority for “ceremonial deism” 1s

meager at best.

Despite this, the Establishment Clause case

law of most of the circuits has become interlarded

with this concept, as a host of questionable practices

have (at least partially) been justified on its basis.

See, e.g., Croft v. Perry, 624 F.3d 157 (56 Cir. 2010)

(Gustifying “under God” in the Pledge of Allegiance);

Newdow v. Roberts, 603 F.3d 1002, 1017 (D.C. Cir.

2010) (Kavanaugh, J., concurring) QGustifying the

invocation of God at presidential inaugural

ceremonies); Freethought Soc'y v. Chester County,

334 F.3d 247, 264 (3 Cir. 2003) Gustifying a Ten

Commandments plaque); ACLU v. Capitol Square

Review & Advisory Bd., 243 F.3d 289, 299-300 (6t

Cir. 2001) (Gustifying a state motto based on a

passage from the New Testament); Gaylor v. United

States, 74 F.3d 214, 216 (10 Cir. 1996) Gustifying

“In God We Trust” on the nation’s money); Sherman

v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437, 447 (7%

Cir. 1992) Gustifying “under God” in the Pledge of

Allegiance); North Carolina Civil Liberties Union

Legal Foundation v. Constangy, 947 F.2d 1145, 1151

(4 Cir. 1991) (noting how ceremonial deism justifies

the Supreme Court’s opening prayer, “God save the

United States and this Honorable Court”). Surely it

is time for this Court to advise the inferior tribunals

in their use of so powerful a tool.

The inferior tribunals’ overreliance upon

occasional Supreme Court dicta is one more reason to

grant this Petition. Although those dicta often

concern the motto, they arise in the context of other

Establishment Clause challenges. What has occurred

is that the challenged activity is struck down, and a

dissenter argues that, under the theory used by the

majority (or plurality), the inscription of “In God We

Trust” on the money ought to be invalidated as well.

The author of the prevailing opinion will then

respond so as to brush aside that argument and

avoid an additional controversy.

In reviewing such cases, rather than seizing

upon the dissenter’s rational application of principle,

lower courts have placed disproportionate weight on

the retort. The clearest example of this occurred in

Allegheny County, where a créche scene prominently

displayed in a county courthouse was held to violate

the Establishment Clause. In his plurality opinion,

Justice Blackmun opined that “a sound analytical

framework for evaluating governmental use of

religious symbols,” 492 U.S. at 595, is to determine if

people are turned into “outsiders” on the basis of

their religious beliefs. Justice Kennedy challenged

this notion, writing that “In God we trust’ ... must

have [this] effect.” Jd. at 673 (Kennedy, J.,

dissenting). In response, Justice Blackmun stated,

“Our previous opinions have considered in dicta the

motto and the pledge, characterizing them as

consistent with the proposition that government may

not communicate an endorsement of religious belief.”

492 U.S. at 602-03.

In view of the “in dicta” qualifier, and the fact

that Justice Blackmun’s opinion was _ rife’ with

statements such as “this Court has come _ to

understand the Establishment Clause to mean that

government may not promote or affiliate itself with

any religious doctrine,” id. at 590, “we have held [the

Establishment Clause] to mean no official preference

even for religion over nonreligion,” id. at 604, and

“the Constitution mandates that the government

remain secular,” id. at 610, it seems questionable, at

best, to argue that he viewed the motto as being

constitutional. Yet the lower courts have elevated his

“previous opinions” sentence (and similar dicta) to

the level of an authoritative pronouncement. See,

e.g., Lambeth v. Bd. of Comm'rs, 407 F.3d 266, 271

(4th Cir. 2005) (asserting that the constitutionality of

the motto has been “strongly indicated” by this

Court); Gaylor v. United States, 74 F.3d 214, 217

(10% Cir. 1996) (finding the constitutionality of the

motto “confirmed by the statements of the Supreme

Court”); Sherman v. Cmty. Censol. Sch. Dist. 21, 980

F.2d 437, 448 (7 Cir. 1992) (contending that this

Court “proclaimled] that [the motto] is consistent

with the establishment clause’).

To interpret such equivocal statements

(ancillary to the cases in which they were made and

proffered without any relevant briefing) in_ so

definitive a manner is to forget that “|jJudges risk

being insufficiently thoughtful and cautious in

uttering pronouncements that play no role tn their

adjudication.” Pearson v. Callahan, 129 S. Ct. 808,

820 (2009) (citation omitted). Especially where, as in

the instant case, basic liberties are at stake, having

the lower courts’ jurists “dissect the sentences of the

United States Reports as though they were the

United States Code,” St. Mary's Honor Ctr. v. Hicks,

509 U.S. 502, 515 (1993) is most certainly

“undesirable.” /d. By granting this Petition, the

Court will put an end to rulings patched together

from occasional tangential commentary developed ad

hoc and in the absence of advocacy. Instead, the legal

landscape involving critical religious liberty issues

will be focused and carefully reasoned, as is

deserved.

Certiorari should be granted also because of

the numerous contradictions that judges must wade

through in reviewing the Court’s jurisprudence.

Although there are myriad such contradictions

among the Establishment Clause cases themselves

(as alluded to by the lower courts’ comments noted at

page 6, supra), one of particular consternation,

involving a different legal realm, arose just last term.

In Berghuis v. Thompkins, 130 S. Ct. 2250 (2010),

the Court examined Miranda warnings under the

Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), 28 U.S.C. § 2254(d) (2006). Because

such warnings have been “embedded in routine

police practice to the point where the warnings have

become part of our national culture,” Dickerson v.

United States, 530 U.S. 428, 443 (2000), they were

deemed to meet the AEDPA requirement of “clearly

established Federal law.” 28 USC. § 2254

(2006)(d)(1) (emphasis added).

If becoming “part of our national culture” is a

valid measure of law having become “clearly

established,” why is it not a valid measure of religion

having become “clearly established” as well? In other

words, why was the opposite argument made in

Marsh v. Chambers, 463 U.S. 783, 792 (1983), where

the fact that “the practice of opening legislative

sessions with prayer has become part of the fabric of

our society” was “not, in these circumstances, an

‘establishment’ of religion or a_ step toward

establishment”? Jd. By either explaining why religion

is different from law, or by concluding that the two

should, in fact, be treated similarly, this unaddressed

inconsistency (which goes to the heart of the

“disarray” problem) can be resolved in this case.

Inconsistency is found not only in the opinions

of the Court as a whole, but in the writings of many

of its individual members. For instance, although

Justice O’Connor argued that courts must be vigilant

as to “the numerous more subtle ways that

government can show favoritism to particular beliefs

or convey a message of disapproval to others,”

Allegheny County, 492 U.S. at 627-28 (1989)

(O'Connor, J., concurring), she blatantly showed

favoritism to Monotheism and conveyed a message of

disapproval to Atheism over a two-decade span. See

Lynch v. Donnelly, 465 U.S. at 693 (O’Connor, J.,

concurring) (contending that “acknowledgements” of

God “serve, in the only ways reasonably possible in

our culture, the legitimate secular purposes of

solemnizing public occasions, expressing confidence

in the future, and encouraging the recognition of

what is worthy of appreciation in society.” See also

Elk Grove, 542 U.S. at 36 (O’Connor, J., concurring)

(reiterating this highly derogatory argument).

Similarly, although she advised that “when

[government] acts it should do so without endorsing

a particular religious belief or practice that all

citizens do not share,” Wallace v. Jaffree, 472 U.S.

38, 76 (1985) (O’Connor, J., concurring), she found no

problem with the government’s official Pledge of

Allegiance, which (since 1954) has been endorsing a

belief in the existence of God. Elk Grove, 542 U.S. at

33-45. Obviously, all citizens do not share that

religious belief.

Although Justice Scalia has also bemoaned the

“utter inconsistency of our Establishment Clause

jurisprudence,” McCreary, 545 U.S. at 900 n.8

(Scalia, J., dissenting), he, too, has engaged in

paradoxical opinions. In Employment Div. v. Smith,

494 U.S. 872, 877 (1990), for example, he penned

that “government may not ... lend its power to one or

the other side in controversies over religious

dogma.” Does the government not lend its power to

one side in the greatest religious dogma controversy

of all —1.e., whether or not God exists — when it helps

“the overwhelming majority of religious believers ..

to give God thanks and supplication as a people, and

with respect to our national endeavors,” McCreary,

545 U.S. at 900 (Scalia, J., dissenting), especially

when it does so while intentionally choosing to

“disregard” those with contrary religious views? Id.

at 893.

This implicates another problem that has been

mentioned: “bias [of] this Court according to the

religious and cultural backgrounds of its Members.”

Allegheny County, 492 U.S. at 614 n.60 (1989).

Surely no Court with nine Atheist justices would

approve of the many endorsements of Monotheism

now engaged in by government. And, just as surely,

neither Justice Scalia nor any of the other Catholic

justices (now comprising a majority of the Court)

would ever find that the Constitution permits the

disregard of devout Catholics, even though, at the

founding of this nation, Catholics were the Atheists

of the day. In other words, comprising less than one

percent of the population,!2 Catholics most certainly

would have been subject to “disregard” by the

overwhelming majority of that era’s_ religious

believers, who readily would have given God thanks

and supplication as a Protestant Christian people. In

fact, when the federal Constitution was ratified, four

of the colonies had explicitly Protestant state

constitutions,'? and legislative provisions depriving

Catholics of basic rights either were in existence or

had recently been in existence in every one of the

other nine original colonies.'4 Furthermore, the

Continental Congress had written to the people of

Great Britain as “their affectionate protestant

brethren,’!® referring to Catholicism as “a religion

that has deluged your island in blood, and dispersed

impiety, bigotry, persecution, murder and rebellion

through every part of the world.”!&

In McCreary, 545 U.S. at 893 (Scalia, J.,

dissenting), Justice Scaha also discussed “public

acknowledgment of the Creator,” as if the existence

of that “Supreme Being” is without dispute. In so

doing, he certainly seemed to presume to determine

the plausibility of God’s existence. Yet, “[r]epeatedly

and in many different contexts, we have warned that

courts must not presume to determine ... the

plausibility of a religious claim.” Smith, 494 U.S. at

\2 Michael Newdow, Question to -Justice Scalia: Does the

Establishment Clause Permit the Disregard of Devout Catholics?

38 Cap. U. L. Rev. 409, 488 (2009).

13 Jd. at 480

14 Id. at 486

15 ] Journals of the Continental Congress, 1774-1789, at 8&2

(Worthington Chauncey Ford ed., 1904) (emphasis added)

16 Id. at 88.

887. Likewise, when belief in God was at issue,

Justice Scalia wrote that “[t]he indignity of being

singled out for special burdens on the basis of one’s

religious calling is so profound that the concrete

harm producedcan never’ be dismissed’ as

insubstantial.” Locke v. Davey, 540 U.S. 712, 731

(2004) (Scaha, J., dissenting). Are Atheists not

singled out for special burdens on the basis of their

religious calling when they are forced to countenance

the government’s spatchcocking of Monotheism into

their business transactions and their group pledges

of allegiance? See McCreary, 545 U.S. at 889 (Scalia,

J., dissenting).

Perhaps the greatest inconsistency in Justice

Scalia’s opinions relates to his review of Dred Scott v.

Sandford, 60 U.S. (19 How.) 393, 621 (1857). In that

opinion, Chief Justice Taney fossicked through the

nation’s history to justify treating a racial minority

as less deserving than the white majority. According

to Justice Scalia, the Court was “covered with

dishonor and deprived of legitimacy” as a result.

Planned Parenthood v. Casey, 505 U.S. 833, 998

(1992) (Scalia, J., concurring and dissenting). Yet, in

McCreary, Justice Scalia engaged in a _ virtually

identical process to conclude that “the Establishment

Clause ... permits the disregard of devout atheists.”

545 U.S. at 893 (Scalia, J, dissenting). In reality, the

only significant difference between the two opinions

is that one involved race and the other involved

religion. This is interesting inasmuch as Justice

Scalia also remarked, “Just as we subject to the most

exacting scrutiny laws that make classifications

based on race, ... so too we strictly scrutinize

governmental classifications based on_ religion.”

Smith, 494 U.S. at 886 n.3 (citations omitted).

Also finding Dred Scott to be deeply flawed

was Justice Thomas. In a law review article written

prior to his tenure as a justice of this Court, then-

KEOC Chairman Thomas wrote that Chief Justice

Taney placed a “twist ... on the beginning of the

Declaration of Independence” in order to conclude

that Blacks could be treated unequally. Clarence

Thomas, An Afro-American Perspective: Toward a

“Plain Reading” of the Constitution -- The

Declaration of Independence in Constitutional

Interpretation, 1987 How. IL..J. 691, 692 (1987). The

fact is, however, that the Chief Justice’s argument in

Dred Scott was identical to the one used by the Court

in, for example, Marsh v. Chambers, 463 U.S. 783,

790 (1983) (“historical evidence sheds light not only

on what the draftsmen intended the [given] Clause to

mean, but also on how they thought that Clause

apphed to the [given] practice ... -- their actions

reveal their intent”). Although Justice Thomas

appears to believe Marsh was correctly decided, see,

e.g., Rosenberger v. Rector & Visitors of the Univ. of

Va., 515 U.S. 819, 858 (1995) (Thomas, J.,

concurring), he wrote that this method of

interpretation — 1.e., using the practices of those who

wrote the given document as determinative of intent

— is trumped when the result contradicts our

society’s higher aspirations: “['T|he strength of those

universal principles of equality and liberty provides

the means for resolving contradictions between

principle and practice.” 1987 How. L. J. at 702.!7

'7 Marsh, incidentally, is a root cause of the “disarray” in which

the Court finds itself. An Establishment Clause case in which

Unfortunately, this reverence for equality and

liberty seems to be downplayed by Justice Thomas

when religious belief, rather than race, is at issue.

Thus, whereas he has argued that “[g]overnment ...

cannot make us equal; it can only recognize, respect,

and protect us as equal before the law” in Adarand

Constructors vu. Pena, 515 U.S. 200, 240 (1995)

(Thomas, J., concurring), he has also cast aside the

“principle of inherent equality that underlies and

infuses our Constitution,” td., when, for instance, an

Atheist father objected to public school teachers

asking his child and her classmates to join every

school day in “an affirmation that God exists.” Elk

Grove, 542 U.S. at 48 (Thomas, J., concurring).

Similarly, when race was at issue, Justice Thomas

had no apparent fear that ending assistance to a

minority “thought to be disadvantaged,” Adarand,

515 U.S. at 240, might be interpreted as hostility

towards its members. Yet, when religion was the

focus, this concern seemed to loom large, even though

what was being ended was governmental activity

espousing the views of a favored majority. “|T]he

message sent by removal of the [government-

sponsored religious] sign or display ... may well

appear to him to be an act hostile to his religious

faith.” Van Orden v. Perry, 545 U.S. 677, 697 (2005)

(Thomas, J., concurring).

the majority opinion contained not a word about what the

Clause was intended to achieve, the continued validity of Marsh

appears to be in question. In Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290, 313 (2000), six members of the Court implicitly

disavowed the Marsh holding: “|T}he religious liberty protected

by the Constitution is abridged when the State affirmatively

sponsors the particular religious practice of prayer.”

Justice Breyer’s Religion Clause jurisprudence

seems self-contradictory as well. Although he

recognizes the importance of “[jJudges ... resist[ing]

popular pressure to suppress the basic rights of an

unpopular minority,” McDonald v. City of Chicago,

130 S. Ct. 3020, 3124 (2010) (Breyer, J., dissenting),

he appears willing to allow suppression of those

rights when the unpopular minority consists of

Atheists. For them, the governmental support of “a

religious message, invoking, indeed emphasizing, the

Deity,” Van Orden v. Perry, 545 U.S. 677, 700-01

(2005) (Breyer, J., concurring), should simply be

accepted. Apparently this is appropriate (at least in

part) because Justice Breyer is “unaware of any

climate of intimidation” against Atheists. /d. at 702.

Even ignoring the rather — surprising

suggestion that an Establishment Clause violation is

measured by the degree of intimidation suffered, this

admission 1s further reason to grant certiorari. It

seems that the justices have forgotten about the

extensive anti-Atheistic bias that was prominent

while “In God We Trust” was being secured. More

importantly, they seem oblivious to the many ways

in which that bias has continued to pervade the

nation. The Complaint and its numerous appendices

detail only a_ portion of these’ reprehensible

circumstances. See pages 21-25, infra.

It is doubtful that any justice of this Court

would uphold the inscribing of “In Jesus We Trust”

or “In Protestant Christianity We ‘lrust” on the

nation’s money. ‘Thus, one would expect a justice who

has written, “The suggestion that government may

establish an official or civic religion as a means of

avoiding the establishment of a religion with more

specific creeds strikes us as a contradiction that

cannot be accepted,” Lee v. Weisman, 505 U.S. 577,

590 (1992), would find “In God We Trust” to be an

Establishment Clause violation as well. After all, as

Justice Kennedy readily recognized (after taking

issue with Justice O’Connor’s “only ways” comment

in Lynch (see at page 13, supra)):

[I]t borders on sophistry to suggest that the

“reasonable” atheist would not feel less

than a “full membe[r] of the political

community” ... [when] “In God We Trust”

. is reproduced on every coin minted and

every dollar printed by the’ Federal

Government ... [sending] the clear message

that his faith is out of step with the

political norm.

Allegheny County, 492 U.S. at 673-74 (Kennedy, J.,

concurring and dissenting). Justice Kennedy is thus

fully aware of how governmental practices such as

those at issue in this case violate the Constitution’s

ideals. Yet he is quite capable of trivializing the

resultant injuries, describing them as “mere feelings

of exclusion,” td, at 673, and ultimately concluding

that to “invalidate [such] practices ... is [not]

acceptable.” Jd. at 674. Inasmuch as he invalidated

such a practice in Lee, the muddled nature of his

disparate arguments seems ripe for clarification.

Also ripe for clarification is the muddled

nature of how to apply the core principle of religious

freedom — i.e., equal protection — in the cases that

arise. Again, we can look to Justice Kennedy, who

obviously sees the importance of this approach. See,

e.g., Bd. of Educ. v. Grumet, 512 U.S. 687, 728 (1994)

(Kennedy, <J., concurring) (“[T]he Establishment

Clause mirrors the Equal Protection Clause ... [in

that t]he danger of stigma and stirred animosities is

no less acute for religious lne-drawing than for

racial”); Church of Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520, 540 (1993) (determining the

government’ objectives in religion cases should be

done “as in equal protection cases”). Surely, under an

equal protection analysis, every lawful religious view

deserves equivalent respect from the government.

Just as surely, however, it cannot be gainsaid that

the respect shown to those who disbelieve in God is

anything but equal to the respect shown to

Monotheists when the government proclaims, “In

God We Trust.” Thus (again) Justice Kennedy's

contention that it is not “acceptable” to remedy this

inequity, Allegheny County, 492 U.S. at 674, hke the

contentions of the other justices, lacks consistency.

Resolving these many contradictions is

essential if the lower courts are to have the guidance

necessary to produce a consistent (and, hopefully,

just) national Establishment Clause jurisprudence.

Il. “IN GOD WE TRUST” PERPETUATES THE

DISENFRANCHISEMENT OF THE

NATION’S MOST DESPISED MINORITY

Atheists are viewed unfavorably by more than

half of their fellow Americans merely on the basis of

their deeply-felt religious views.'8 Almost as many

'§ Accessed at http://pewlorum.org/Public-Expresses-Mixed

Views-of-Islam-Mormonism.aspx on December 11, 2010.

feel that disbelief in God precludes someone from

being moral.'9 Accordingly, “Americans draw

symbolic boundaries that clearly and sharply exclude

atheists in both private and public life.”2° “[N]Jot only

[are] atheists ... less accepted than _ other

marginalized groups but ... attitudes toward them

have not exhibited the marked increase’ in

acceptance that has characterized views of other

racial and religious minorities over the past forty

years.”?!

These facts comport with this Court’s allusions

to “the power, prestige and financial support of

government,” Engel v. Vitale, 370 U.S. 421, 431

(1962), and the notion that this is not just a

platitude, but a deeply meaningful phrase that

highlights factors with real consequences. Although

certainly not a definitive proof of cause and effect,

this would explain why, when Congress in the 1950s

finally ended 300-plus years of the government’s

“power, prestige and financial support” for our white

citizenry, the percentage of those refusing to vote for

a black candidate decreased a remarkable 92% (from

53% to 4%) within two generations.”2 Similarly, after

'9 Poll conducted by the Pew Research Center, March 20, 2002,

entitled, Americans Struggle with Religion’s Role at Home and

Abroad. Accessed on December 11, 2010 at http://people-

press.orgp/reports/display.php3?ReportID=150.

20 Edgell P, Gerteis J, and Hartmann D. Atheists as “Other”:

Moral Boundaries and Cultural Membership in American

Society. American Sociological Review (April, 2006) Vol. 71,

pages 211-34 at 212.

21 Id.

22 Polls given July 30-August 4, 1958 and February 19-21, 1999.

See www.gallup.com and www.gallupjournal.com.

the civil rights laws ended the official gender

discrimination that pervaded the nation from prior to

its founding, those refusing to vote for a woman

decreased from 41% to 7%.25 Yet for Atheists — with

government continuing to send messages (such as “In

God We Trust”) that disfavor their religious views

the percentage of those refusing to vote for them has

remained extraordinarily high, with the last Gallup

poll showing the figure to be 53%.24 As interpreted by

the pollsters, “An atheist would seem to have the

hardest time getting elected president, as a majority

of Americans (53%) say they would not vote for a

presidential candidate who was an athe'st.”25

Petitioner included in his Complaint a mass of

information — unchallenged by Defendants — that

reveals blatant examples of official anti-Atheist bias

that could only have transpired in a_= pro-

Monotheistic, anti-Atheistic milieu. See FAC

Appendices B-] (KOR 184-239). He provided a survey

demonstrating that a large majority of Americans

view “In God We Trust” as (i) being a religious

statement, (11) endorsing a belief in God, and (iii)

endorsing religion over Atheism. FAC Appendix N

(FOR 272-77). He showed how Americans have used

23 Id.

24 Poll given February 9-11, 2007. Accessed on December 11,

2010 at http://www.gallup.com/poll/26611/Some-Americans-

Reluctant-Vote-Mormon-72YearQOld-Presidential-

Candidates.aspx.

29 Td. Even 53% may underestimate the animus. In a poll

conducted a month later by Newsweek/MSNBC, 62% of

registered voters said they would not vote for a candidate who

is an atheist. Newsweek poll, conducted March 28-29, 2007,

accessed at http://www.newsweek.com//2007/03/30/zod-s-

numbers.htiml on December 11, 2010.

that motto almost exclusively in purely religious

terms, and how that use has markedly increased

over the past two decades. FAC Appendix P (KOR

293-305). Additionally, he brought to the lower

courts’ attention the case of a federal district court

chief judge denying citizenship to a perfectly fit

individual solely on the basis of that applicant’s

Atheism (specifically alluding to “In God We Trust”

on the money to justify his decision). Petition of

Plywacki, 107 F. Supp. 593 (D. Haw. 1952).26

At first glance, such a decision might appear

anomalous. However, when it is realized that it took

place during an era when the “In God We Trust”

motto was being glorified, when the President was

proclaiming that “Recognition of the Supreme Being

is the first, the most basic, expression of

Americanism,’2? when this Court was equating

Atheism with “subversive influences,” Kedroff v. St.

Nicholas Cathedral of Russian Orthodox Church, 344

U.S. 94, 109 (1952), and when the Chief Justice was

decreeing that America is “a Christian land governed

by Christian principles,’?° that judicial abuse is not

surprising at all.

Regretfully, similar sentiments, expressed by

our officials, have hardly disappeared. A presidential

26 FAC Appendix O (KOR at 278-92) has a thorough exegesis of

this case.

27 Statement of President Eisenhower made during a nationally

televised address on February 20, 1955 in conjunction with the

American Legion’s “Back-to-God” program. Will Herberg,

Protestant — Catholic — Jew: An Essay in American Religious

Sociology 274 (1955). See also 3 Martin E. Marty, Modern

American Religion 296 (1986).

28 Eisenhower Joins in a Breakfast Prayer Meeting, New York

Times, February 5, 1954, A-10.

claim that, “Without God, there is no virtue’29 is

hurtful to Atheists, as is the nation (while being

characterized as a “beacon of religious freedom”)

celebrating a national motto that excludes them on

the basis of their religious beliefs.2° Likewise,

hearing their Congressmen unabashedly favor

Monotheism3! while watching their tax-dollars go to

a congressional chaplain who contends that “this

Chamber proclaims what America prays: ‘In God we

trust’ now and forever”® is less than endearing.

As the “barrier to the encroachments and

oppressions of the representative body,’? the Court

should grant this Petition to review’ the

institutionalized prejudices suffered by our Atheistic

citizens. After all, “this sort of noneconomic injury 1s

one of the most serious consequences of

discriminatory government action.” Allen v. Wright,

468 U.S. 737, 755 (1984). In other words, it is an apt

time for the Court to ensure that government is not

perpetuating “the concrete harm [that] can never be

dismissed as insubstantial,” Locke v. Davey, 540 U.S.

at 731 (Scalia, J., dissenting), as that harm is

imposed upon a religious minority that is already

disenfranchised due to past governmental acts.

29 Remarks of President Reagan, August 23, 1984 (as quoted in

House Document 108-227, 108* Cong. 2.4 Sess. Ronald Reagan,

Late a President of the United States at 114).

30 July 27, 2006 Proclamation of President George W. Bush,

celebrating the 50th Anniversary of the national motto. Accessed

at http://georgewbush-whitehouse.archives. gov/news/releases/

2006/07/20060727-12.html on December 11, 2010.

31 See EOR 306-08.

32 Monday, July 25, 2005 Prayer of House Chaplain Rev. Daniel

P. Coughlin. 151 Cong. Rec. H6386.

33 The Federalist No. 78 (Alexander Hamilton).

Ill. THE NINTH CIRCUIT'S RFRA RULING

CONFLICTS WITH THIS COURT'S

JURISPRUDENCE (AND THUS, AS

EXPECTED, CONFLICTS WITH THE

JURISPRUDENCE OF ITS SISTER

CIRCUITS)

In response to this Court’s decision in

Employment Div. v. Smith, 494 U.S. 872 (1990),

Congress passed the Religious Freedom Restoration

Act of 1993 (RFRA), 42 U.S.C. § 2000bb-2000bb-4

(2006). Although the Court invalidated that act as it

pertains to the states, City of Boerne v. Flores, 521

U.S. 507 (1997), its restrictions upon the federal

government remain. Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).

RFRA “prohibits the Federal Government

from substantially burdening a person’s exercise of

religion, unless the Government ‘demonstrates that

application of the burden to the person’ represents

the least restrictive means of advancing a compelling

interest. 42 U.S.C. § 2000bb-1(b).” O Centro, 546 U.S.

at 423. Nonetheless, as a result of the Ninth Circuit’s

adherence to Aronow in this case, binding precedent

has now been established that emasculates RFRA.

This precedent is contrary to the holding of O Centro,

and (as expected) conflicts with the jurisprudence of

other circuits.

O Centro involved “[a] religious sect with

origins in the Amazon Rainforest [that] receives

communion by drinking a sacramental tea, brewed

from plants unique to the region, that contains a

hallucinogen regulated under the Controlled

Substances Act by the Federal Government.” 546

U.S. at 423. The Act serves to police the distribution

of substances with “a substantial and detrimental

effect on the health and general welfare of the

American people.” 21 USCS § 801(2) (2006).

Accordingly, under the Act, the government sought

to block the importation of the tea. Despite this

clearly legitimate goal, the Court unanimously“ held

“that the Government failed to demonstrate, at the

preliminary injunction stage, a compelling interest in

barring” the use of the hallucinogen. 546 U.S. at 439.

To whatever degree interference with the O

Centro sect’s tea drinking substantially burdened

their exercise of religion, the interference with

Atheists’ ability to solicit, collect and spend money

for their religious ends is at least as severe. Believing

themselves to be included among the “We,” in “In

10d We Trust,” Petitioner here and other “devout

atheists,’ McCreary, 545 U.S. at 893 (Scalia, J.,

dissenting), are forced to choose between not using

what is often the only available legal tender and

committing what they consider blasphemy. Absent a

compelling governmental interest, RFRA does not

permit the imposition of such a choice:

The ruling forces her to choose between

following the precepts of her religion and

forfeiting benefits, on the one hand, and

abandoning one of the precepts of her

religion in order to accept work, on the

other hand. Governmental imposition of

such a choice puts the same kind of burden

upon the free exercise of religion as would a

44 Justice Alito took no part in the consideration or decision of

the case.

©)

fine imposed against appellant for her

Saturday worship.

Sherbert v. Verner, 374 U.S. 398, 404 (1963). Given

that the government was unable to show a

compelling interest when the flow of potentially

dangerous, mind-altering drugs was at issue in O

Centro, it surely cannot show a compelling interest in

the case at bar, where there has never even been a

suggestion that such an interest exists.

With its failure to follow O Centro, it is not

surprising that the instant case conflicts with rulings

of other circuits. In Westchester Day School v. Village

of Mamaroneck, 504 F.3d 338 (2>4 Cir. 2007), for

example, the Second Circuit reversed a zoning

board’s denial of a religious school’s request for a

permit to enlarge its facilities. Analyzing the case

under RFRA’s cousin, the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. §

2000cc-2000cc-4 (2006), the Westchester panel ruled

in favor of the school. Even though legitimate traffic

and safety concerns existed, the Second Circuit found

that “once a religious institution has demonstrated

that its religious exercise has been substantially

burdened, the burden of proof shifts to the

municipality to prove it acted in furtherance of a

compelling governmental interest and that its action

is the least restrictive means of furthering that

interest.” 504 F.3d at 354. Because the defendant

village did not “show a compelling interest in

imposing the burden on religious exercise in the

particular case at hand,” id., that burden of proof

was not met.

Unlike in Westchester, the government

prevailed in United States v. Friday, 525 F.3d 938

(10% Cir. 2008), which involved a Native American

criminal defendant who relied on RFRA to defend his

shooting of a bald eagle. At issue was whether the

federal statute that protected the eagle trumped the

RFRA rights of the defendant, who was attempting

to fulfill the requirements of a religious ceremony.

Referencing O Centro, the Tenth Circuit noted that

“lo|nce a defendant shows that applying a statute to

him will substantially burden his religion, the

government must justify the burden by establishing

a sufficiently compelling interest and showing that it

could not accommodate religion more without serving

that interest less.” 525 F.3d at 946. Only because the

defendant did not use the procedures that were in

place (which would have provided him with an

opportunity to legally obtain protected eagle parts),

was he unable to prevail on his RFRA claim.

The instant case obviously conflicts with

Friday, as it does with Westchester and O Centro.

Basing its decision on the Establishment Clause

holding of Aronow, the Ninth Circuit ignored the

mandates of RFRA (which was implemented, of

course, long after Aronow was decided). To allow that

1970 case, therefore, to serve as circuit precedent for

a RFRA claim, when the requirements of RFRA have

never been met, is clear error. More importantly,

with the instant case (based on Aronow) now the law

of the Ninth Circuit, meeting RFRA’s requirements

will no longer be necessary anywhere within that

Court of Appeals’ vast boundaries. Thus, not only

Atheists, but all individuals, whatever their religious

persuasions, have lost the protections that Congress

intended to provide.

As for the underlying claim that the motto

“has nothing whatsoever to do with’ the

establishment of religion[,] ... is of a patmotic or

ceremonial character and bears no true resemblance

to a governmental sponsorship of a_ religious

exercise, Aronow, 432 F.2d at 243, statistics (in

addition to history and common sense) demonstrate

its patent falsity. See Plaintiff-Appellant’s Petition

for Panel Rehearing or for Rehearing En Banc at 15-

16 (Docket Entry 114-1 at 21-22) (showing that when

“In God We Trust” has been raised by members of

this Court, it has almost always been in the context

of Establishment Clause concerns). But even if one

accepts this “nothing whatsoever to do with the

establishment of religion” contention (and also opts

to ignore that the Aronow plaintiff lacked standing

and submitted an “unintelligible” complaint),

Petitioner's RFRA claim still ought to survive. As

demonstrated with the Controlled Substances Act in

O Centro, the zoning regulations in Westchester, and

the Eagle Protection Act under which the defendant

was charged in Friday, RFRA claims are not at all

dependent upon a= showing of governmental

religiosity. On the contrary, “laws ‘neutral’ toward

religion” are what RFRA addresses. 42 U.S.C. §

2000bb(a)(2). Thus, again, the Ninth Circuit’s ruling,

if permitted to stand, threatens to burden the

exercises of religion that Congress sought to protect

when it passed RFRA (and that this Court sought to

protect when it upheld RFRA in O Centro).

CONCLUSION

Petitioner respectfully petitions for a writ of

certiorarl to review the judgment of the United

States Court of Appeals for the Ninth Circuit in this

CaSe

Respectfully submitted,

Michael Newdow, pro se

and Counsel of Record

Post Office Box 233345

Sacramento, CA 95823

NewdowLaw@gmail.com

(916) 427-6669

APPENDIX

No.

IN THE

Supreme Court of the United States

MICHAEL A. NEWDOW,

Petitioner.

Vv.

PETER LEFEVRE, LAW REVISION COUNSEL.

ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CikRCUIT

APPENDIX TO THE PETITION FOR A WRIT

OF CERTIORARI

—__ gd

Michael Newdow, pro se

and Counsel of Record

Post Office Box 233345

Sacramento, CA 95823

NewdowLaw@gmail.com

(916) 427-6669

TABLE OF APPENDICES

Appendix A

Court of Appeals’ Opinion

CERDOGE PPMRCR TT, BOI cn vvnscsiececcdeccicssanscsnens App. |

Appendix B

42 U.S.C. § 2000bb et seq.

(pursuant to Supreme Court Rule

I Hs nsoenscickcisieinapaunsnsackeniaraa tine aanaae aan App. 19

Appendix C

Court of Appeals’ Order denying

Appellant's Petition for Panel

Rehearing and the Suggestion for

Rehearing En Banc

(filed October 8, 2010) 0.0.0... cece cece cece es App. 23

Appendix D

District Court’s Dismissal Order

(TURE ARN EE, BO icc ckeisicseinceerscncsad App. 25

Appendix E

Aronow District Court’s Order

(filed September 30, 1968) ...........0000.00000., App. 44

Appendix F

Aronow Court of Appeals Opinion

(Tales (Wet eG BT ooo ss ncwiscrcancsissccesevens App. 47

Appendix A

Court of Appeals’ Opinion Filed March 11, 2010

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL A. NEWwbDow,

Plaintiff-Appellant,

PETER LEFEVRE, Law Revision

Counsel; UNITED STATES OF

AMERICA; HENRY M. PAULSON, JR..*

Secretary of the Treasury; No. 06-16344

HENRIETTA HOLSMAN Fore, D.C. No.

Director, United States Mint; CV-05-02339-FCD

THOMAS A, FerGuson, Director, OPINION

Bureau of Engraving and Printing;

THE CONGRESS OF THE UNITED

STATES OF AMERICA,

Defendants-Appellees,

Pactiric JUSTICE INSTITUTE,

Defendant-Intervenor-Appellee. ]

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

*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).

App. |

Argued and Submitted

December 4, 2007—San Francisco, California

Kiled March 11, 2010

Before: Dorothy W. Nelson, Stephen Reinhardt, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea;

Concurrence by Judge Reinhardt

COUNSEL

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

California; for the plaintiff-appellant.

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

Lowell V. Sturgill Jr. (argued), Department of

Justice, Washington, D.C.; for defendants-appellees

the United States of America et al.

App. 2

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

Sacramento, California; for defendant-intervenor-

appellee Pacific Justice Institute.

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, Lynchburg, 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 8S. Moore, Gregory M. Jones, Benjamin D. Dupré,

Foundation for Moral Law, Montgomery, Alabama;

for the Foundation for Moral Law as Amicus Curiae

in Support of the defendants-appellees.

App. 3

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.

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 Religious 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 clarms. 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 Procedural Background

Plaintiff Michael A. Newdow (“Newdow’”) is an

ordained minister and founder of the _ First

Amendmist Church of True Science (“FACTS”).

App. 4

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.! In this action,

Newdow alleges the statute that establishes “In God

We Trust” as the national motto, 36 U.S.C. § 302,

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.®° Newdow asks this court to declare

§§ 302, 5112(d)(1), and 65114(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

! 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 district court

allowed the Pacific Justice Institute, a “Sacramento-based,

nonprofit 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.

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.

App. 5

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 (“[FJor

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 Newdow’s RFRA claim,

because the RFRA claim rests on Newdow’s

App. 6

“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.” Jd.

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.® 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, 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.

App. 7

[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 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 (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_ injunction

ordering the removal of the motto from coins and

currency.’ Thus, Newdow satisfies all three

7 The Defendants contend Newdow’s injury is not redressable

because he requests injunctive relief that would prohibit the

Defendants from continuing to place the motto on coins and

currency in the future. This injunction, 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.

App. 8

requirements for Article II] standing as to his

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

[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 stigmatic injury

upon them, an “abstract stigmatic injury” resulting

from such outsider status is insufficient to confer

® The Defendants assert Newdow is collaterally estopped from

alleging the placement of the motto on coins and currency

causes him an injury-infact. 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 Establishment

Clause challenge to clergy-led prayer at the 2001 presidential]

inauguration, because Newdow failed to allege a “sufficiently

concrete and specific injury.” The Defendants’ collateral

estoppel argument lacks merit because Newdow vu. Bush

involved a different Establishment Clause challenge 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”).

$ During oral argument, Newdow conceded he could not

establish standing 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.

App. 9

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.1° See Simon v. E. Ky. Welfare Rights 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 hospitals 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).

'” Further, Newdow does not allege he ever sought public office,

so any injury resulting from his failure to attain public office is

purely hypothetical and insufficient to show injury-in-fact. See

Lujan, 504 U.S. at 560 (holding an injury must be “concrete and

particularized,” and not “conjectural” or “hypothetical,” to give

rise to Article III standing).

App. 10

IV. The Establishment Clause

[5] The Establishment Clause of the First

Amendment states: “Congress shall make no law

respecting an establishment 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

motte 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 Gad 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. /d. at 243. We

reasoned:

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.

App. 11

Its use is of a patriotic or ceremonial

character and bears no true resemblance

to a governmental 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).!!

Newdow concedes his’ Establishment Clause

challenge is “essentially identical” to the one raised

'! 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 (10% Cir.), cert. dented, 517

U.S. 1211 (1996); O’Hair v. Murray, 588 F.2d 1144, 1144 (5th

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

App. 12

in Aronow, but contends 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 11438,

1149 n.3 (9th Cir. 2007). Nevertheless, “where the

reasoning or theory 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

controlling 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 precedent. According to Newdow, the

Supreme Court's Establishment 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. Newdow 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

App. 13

noted in dicta the national motto does not violate the

Kstablishment Clause. See County of Allegheny v.

ACLU, 492 U.S. 573, 602-03 (1989) (noting the motto

“consistent with the proposition that government

may not communicate an endorsement of religious

behef’); Lynch, 465 U.S. at 676 (noting the

“statutorily 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)).

Alternatively, Newdow asserts Aronow is_ not

binding precedent 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

Establishment Clause claim after assuming, but

without deciding, the plaintiff had standing. Jd.

Newdow contends Aronow’s failure to address the

standing question renders it without precedential

value, because a court lacks subject matter

jurisdiction without Article IL] standing. See Bates v.

United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir.

2007) (en banc).

18] ‘This contention is without merit. The

Supreme Court in Steel Co. v. Citizens for a Better

Environment, 523 U.S. 838 (1998), decided after

Aronow, invalidated the practice of “hypothetical

App. 14

jurisdiction” —1i.e., assuming jurisdiction for the

purpose of deciding the merits of a case. Jd. 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 jurisdiction 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 precedential value

of its holding that the national motto does not violate

the Establishment Clause.

[9] Accordingly, Newdow’s Establishment Clause

challenge 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 government can show the

rule is in furtherance of a “compelling 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

App. 15

cash payments e.g., purchase of church attire,

ingredients for the church lbation “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.!2 During oral

argument, Newdow confirmed his RFRA claim is

dependent on his contention that the national motto

represents a_ religious dogma and_ constitutes

governmental 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.

2 For instance, the complaint makes the following allegations:

“Newdow 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 burdened

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

purpose of furthering his ministry.”; “[Newdow is] forced to

evangelize for (Christian) Monotheism precisely as Congress

and others envisioned.” Newdow’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

advocate for Monotheism, a religious belief system he expressly

repudiates.”).

App. 16

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

by Aronow. Although Aronow was an Establishment

Clause challenge 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 government 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

App. 17

constitutional principles 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, 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.

App. 18

Appendix B

TITLE 42--THE PUBLIC HEALTH AND WELFARE

CHAPTER 21B--RELIGIOUS FREEDOM

RESTORATION

Short Title

This Act [enacting this chapter and amending section

1988 of this title and section 504 of Title 5,

Government Organization and Employees] may be

cited as the “Religious Freedom Restoration Act of

1993”.

Sec. 2000bb. Congressional findings and declaration

of purposes

(a) Findings

The Congress finds that--

(1) the framers of the Constitution, recognizing

free exercise of religion as an unalienable

right, secured its protection in the First

Amendment to the Constitution;

(2) laws “neutral” toward religion may burden

religious exercise as surely as laws intended

to interfere with religious exercise;

(3) governments should not substantially burden

religious exercise without compelling

justification;

(4) in Employment Division v. Smith, 494 U.S.

872 (1990) the Supreme Court virtually

eliminated the requirement that the

government justify burdens on_ religious

exercise imposed by laws neutral toward

religion; and

App. 19

(5) the compelling interest test as set forth in

prior Federal court rulings is a workable test

for striking sensible balances between

religious liberty and competing prior

governmental interests.

(b) Purposes

The purposes of this chapter are--

(1) to restore the compelling interest test as set

forth in Sherbert v. Verner, 374 U.S. 398

(1963) and Wisconsin v. Yoder, 406 U.S. 205

(1972) and to guarantee its application in all

cases where free exercise of religion is

substantially burdened; and

(2) to provide a claim or defense to persons whose

religious exercise is substantially burdened by

government.

Sec. 2000bb-1. Free exercise of religion protected

(a) In general

Government shall not substantially burden a

person’s exercise of religion even if the burden

results from a rule of general applicability, except

as provided in subsection (b) of this section.

(b) Exception

Government may substantially burden a person's

exercise of religion only if it demonstrates that

application of the burden to the person-

(1) is in furtherance of a compelling govern

mental interest: and

App. 20

(2) is the least restrictive means of furthering

that compelling governmental interest.

A person whose religious exercise has been

burdened in violation of this section may assert

that violation as a claim or defense in a judicial

proceeding and obtain appropriate relief against

a government. Standing to assert a claim or

defense under this section shall be governed by

the general rules of standing under article [II of

the Constitution.

Sec. 2000bb-2. Definitions

As used in this chapter--

(1)

the term “government” includes a_ branch,

department, agency, instrumentality, and

official (or other person acting under color of

law) of the United States, or of a covered

entity;

(2) the term “covered entity” means the District of

(3)

Columbia, the Commonwealth of Puerto Rico,

and each territory and possession of the

United States;

the term “demonstrates” means meets the

burdens of going forward with the evidence

and of persuasion; and

(4) the term “exercise of religion” means religious

exercise, as defined in section 2000cc-5 of this

title.

App. 21

Sec. 2000bb-3. Applicability

(a) In general]

This chapter applies to all Federal law, and the

implementation of that law, whether statutory or

otherwise, and whether adopted before or after

November 16, 1993.

(b) Rule of construction

Federal statutory law adopted after November

16, 1993, is subject to this chapter unless such

law explicitly excludes such application’ by

reference to this chapter.

Nothing in this chapter shall be construed to

authorize any government to burden any

religious belief.

Sec. 2000bb-4. Establishment clause unaffected

Nothing in this chapter shall be construed to affect,

interpret, or in any way address that portion of the

First Amendment prohibiting laws respecting the

establishment of religion (referred to in this section

as the “Establishment Clause”). Granting

government funding, benefits, or exemptions, to the

extent permissible under the Establishment Clause,

shall not constitute a violation of this chapter. As

used in this section, the term “granting”, used with

respect to government funding, benefits, or

exemptions, does not include the denial of

government funding, benefits, or exemptions.

App. 22

Appendix C

Court of Appeals’ Order Denying Appellant's

Petition for Panel Rehearing and the Suggestion for

Rehearing En Banc

(DktEntry: 115)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 06-16344

D.C. No. CV-05-12339-FCD

FILED OCT 08 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MICHAEL A. NEWDOW,

Plaintiff - Appellant,

v. ORDER

UNITED STATES OF AMERICA; et al..,

Defendants - Appellees,

PACIFIC JUSTICE INSTITUTE,

Defendant - Intervenor -

Appellee.

App. 23

Before: D.W. NELSON, REINHARDT, and BEA,

Circuit Judges.

Judge Bea has voted to deny the petition

for panel rehearing and the suggestion for

rehearing en banc, and Judge D. Nelson has so

recommended. Judge Reinhardt has voted to

srant the petition for panel rehearing and the

suggestion for rehearing en banc.

The suggestion for rehearing en banc has

been circulated to the full court, and a majority

of the active judges did not vote to rehear the

case en banc. Fed. R. App. P. 35(b).

The petition for panel rehearing and

suggestion for rehearing en banc are denied.

Appendix D

District Court’s Dismissal Order

(Document 52)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

NO. CIV. S-05-2339 FCD PAN

THE REV. DR. MICHAEL A.

NEWDOW, IN PRO PER,

Plaintiff,

THE CONGRESS OF THE UNITED

STATES OF AMERICA, et al.,

Defendants.

This matter is before the court on defendants’

motions to dismiss.! Plaintiff, the Rev. Dr. Michael A.

Newdow, opposes the motions. For the reasons set

forth below,? defendants’ motions to dismiss are

GRANTED.

Federal government defendants and defendant Pacific

Justice Institute (“PJI”) filed separate motions to dismiss.

Because oral argument will not be of material assistance, the

court orders this matter submitted on the briefs. See E.D. Cal.

L.R. 78-230(h).

App. 25

BACKGROUND

On November 18, 2005, plaintiff filed a

complaint in this court, seeking declaratory and

injunctive relief regarding the use of the phrase “In

God We Trust” as the national motto and its

inscription on United States coins and currency.

(Compl., filed Nov. 18, 2005). The complaint names

as defendants the Congress of the United States of

America, Peter Lefevre as Law Revision Counsel, the

United States of America, John William Snow as

Secretary of the Treasury, Henrietta Holsman Fore

as Director of the United States Mint, and Thomas A.

Ferguson as Director of the Bureau of Engraving and

Printing. (lst Am. Compl. (“FAC”), filed May 10,

2006, 44 8-13). On January 29, 2005, the court

granted Pacific Justice Institute’s (“PJI”) motion to

intervene as a defendant in the action. In this

litigation, plaintiff seeks to scrub out the reference to

“God” in the motto of the nation.

Plaintiff Michael A. Newdow “is an ordained

minister and the founder of the Atheistic church, the

First Amendmist Church of True Science (“FACTS’).”

Ud. §| 7). Plaintiff “is an Atheist whose religious

beliefs are specifically and explicitly based on the

idea that there is no god.” Ud. § 157). His church,

FACTS, “holds as a fundamental truth that there is

no god or supernatural being.” Ud. 4] 161). Plaintiff

alleges that “he finds it deeply offensive to have his

government and its agents advocating for a religious

view he specifically decries.” (Ud. {| 157). In

particular, plaintiff takes issue with the legislation

App. 26

set forth in 36 U.S.C. § 302,° which provides that “In

God We Trust” is the national motto, and in 31

U.S.C. §§ 5112 and 5114,’ which provide that United

States coins and currency shall have the inscription

“In God We Trust.” Ud. 44 177, 179). Plaintiff asserts

that, as a result, defendants have violated his rights

under the Establishment Clause, the Free Exercise

Clause, the Religious Freedom Restoration Act

(“RFRA”), the Equal Protection Clause, and the Free

Speech Clause.° Defendants move to _ dismiss

plaintiffs claims on the grounds of (1) lack of

standing; (2) immunity; and (3) failure to state a

claim upon which relief can be granted.

STANDARD

A complaint will not be dismissed under Fed.

R. Civ. P. 12(b)(6) “unless it appears beyond doubt

that plaintiff can prove no set of facts in support of

his for her] claim that would entitle him [or her] to

relief.” Yamaguchi v. Dep’t of the Air Force, 109 F.3d

1475, 1480 (9th Cir. 1997)(quoting Lewis v. Tel

Employees Credit Union, 87 F.3d 1537, 1545 (9th

3 This legislation was enacted in 1956, and is referred to by

plaintiff as the “Act of 1956.” (FAC 4 138).

This legislation was enacted in 1955 and is referred to by

plaintiff as the “Act of 1955.” (FAC 4 115).

In his opposition, plaintiff does not address defendants’

motions to dismiss his claims under the Equal Protection

Clause and the Free Speech Clause or the arguments in support

thereof. The court interprets plaintiffs silence as a non-

opposition to defendants’ motions on these claims. Therefore,

defendants’ motions to dismiss plaintiffs Equal Protection and

Free Speech claims are GRANTED.

2 hard

‘

App. 2

Cir. 1996)). “All allegations of material fact are taken

as true and construed in the light most favorable to

the nonmoving party.” Cahill v. Liberty Mut. Ins.

Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

Given that the complaint is construed

favorably to the pleader, the court may not dismiss

the complaint for failure to state a claim unless it

appears beyond a doubt that the plaintiff can prove

no set of facts in support of the claim which would

entitle him or her to relief. Conley v. Gibson, 355

U.S. 41, 45 (1957); NL Indus., Inc. v. Kaplan, 792

F.2d 896, 898 (9th Cir. 1986).

Nevertheless, it is inappropriate to assume

that plaintiff “can prove facts which it has not

alleged or that the defendants have violated the...

laws in ways that have not been alleged.” Associated

Gen. Contractors of Cal., Inc. v. California State

Council of Carpenters, 459 U.S. 519, 526 (1983).

Moreover, the court “need not assume the truth of

legal conclusions cast in the form of factual

allegations.” United States ex rel. Chuniec _v.

Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986).

ANALYSIS

I. Standing

The issue of standing is a_ threshold

determination of “whether the litigant 1s entitled to

have the court decide the merits of the dispute or of

particular issues.” Warth v. Seldin, 422 U.S. 490, 498

(1975); Steel Co. v. Citizens For A Better Env’t, 523

U.S. 83 (1998). “The judicial power of the United

States defined by Artlicle] LI] is not an unconditioned

authority to determine the constitutionality of

App. 28

legislative or executive acts.” Valley Forge Christian

Coll. v. Americans United For Separation of Church

and State, Inc., 454 U.S. 464, 471 (1982). Rather,

Article II] limits “the federal judicial power ‘to those

disputes which confine federal courts to a_ role

consistent with a system of separated powers and

which are traditionally thought to be capable of

resolution through the judicial process.” Id. at 472

(quoting Flast_ v. Cohen, 392 U.S. 83, 97 (1968)):

Steele, 523 U.S. at 102. “Those who do not possess

Article III standing may not litigate as suitors in the

Courts of the United States.” Id. at 476.

The Supreme Court has set forth that “[t]he

‘irreducible constitutional minimum of standing’

contains three requirements.” Steele, 523 U.S. at

102-03 (quoting Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992)). First, plaintiff must allege an

“injury in fact — a harm suffered by the plaintiff that

is concrete and actual or imminent, not conjectural,

or hypothetical.” Id. at 103 (internal quotations and

citations omitted). “{[W]jhere large numbers of

Americans suffer alike, the political process, rather

than the judicial process, may provide the more

appropriate remedy for a widely shared grievance.”

FEC v. Akins, 524 U.S. 11, 23 (1998). However, it is

possible for a plaintiff to allege an injury that,

although shared by many, is particularized and

concrete. Id. at 24. Second, plaintiff must allege

causation — “a fairly traceable connection between

the plaintiffs injury and the complained-of conduct of

the defendant.” Steele, 523 U.S. at 103. (citing Simon

v. EK. Ky. Welfare Rights Org., 426 U.S. 26, 41-42

(1976). The injury must not be the result of some

third party not before the court. Lujan, 504 U‘S. at

App. 29

560 (citing Simon, 426 U.S. at 41-42). Third, the

injury must be redressable — there must be “a

likelihood that the requested relief will redress the

alleged injury. Steele, 523 U.S. at 103 (citing Simon,

426 U.S. at 45-46). Defendants argue that plaintiff

fails each of these three standing requirements.

Plaintiff alleges a multitude of injuries caused

by his Encounters with the national motto. He

asserts that, as an Atheist, he 1s a member of a

“small minority” (according to plaintiff, 5% of all

Americans). (FAC, App. K, at 5). Plaintiff argues

that, as a member of such a minority, he is affected

by the national motto in a different and more

particuiarized manner than the majority. Generally,

he contends that he is deeply offended “to have his

government and its agents advocating for a religious

view and that he suffers injury “when his

government and its agents ... engage in such

advocacy.” (FAC 4/4] 157-58).

Specifically, plaintiff asserts that he has been

personally injured by the national motto and its

inscription on coins and currency because: (1) the

national motto degrades him and other Atheists from

the “equal rank” of citizens and turns Atheists into

“political outsiders” (FAC 4 178); (2) he was recently

denied a job because of the mis-perception of his

activism and because of the government's

endorsement that “belief in God is ‘good’ and disbelief

in God is ‘bad” — a notion reinforced by the national

motto (Id. 4] 188, 190); (3) he has given up hope of

attaining elective office because of the anti-Atheistic

bias that the government has perpetuated by the

national motto (id. | 214); (4) he is repeatedly forced

to confront a “religious belief” (the national motto)

App. 30

which he finds offensive both when he inspects coins

during his normal purchasing activities and when he

inspects his coin collection® (Id. 4]{] 223-24); (5) he has

been and is forced to “proselytize” and “evangelize”

on behalf of monotheism when he spends coins and

currency (Id. 4] 230, 261- 62); (6) he was and is not

able to raise funds for his ministry because of the

offensive religious dogma on “the nation’s monetary

instruments” (Id. 4 240-41); (7) religious garb worn

during FACTS church services and “FACTS libation

— known as ‘The Freethink Drink” — cannot be

purchased at times because of the offensive “religious

dogma” on coins and currency (Id. 4] 247-48); and (8)

FACTS-related “research trips” have been cancelled

due to the need to use United States currency to pay

for such trips (Id. 94] 252-54, 257).

Plaintiff alleges that all of the above described

injuries were caused by the government defendants

named in this action. The court finds that this is not

the case. Some of the injuries alleged by plaintiff are

not fairly traceable to defendants, but rather to third

parties not before this court. For example, plaintiff

alleges that he was denied employment because of

misperceptions of his Atheistic activism and because

of the governmental endorsement, reinforced by the

national motto, that “belief in God is ‘good’ and

disbelief in God is ‘bad.”? In other words, plaintiff

6 The court finds it ironic that plaintiff collects and inspects

that which he finds so offensive.

Plaintiffs allegations involving the refusal to be hired, the

relinquishment of plaintiffs aspirations to hold elected office,

derogatory remarks based upon plaintiffs Atheism, and a social

environment where prejudice is perpetuated against Atheists

share the same causation deficiencies.

App. 31

argues that the national motto reinforces social bias

against Atheism, which in turn, creates antagonism

against his perceived activism. According to plaintiff,

this antagonism caused a potential employer not to

hire him as a result of his activism. The causal link

between the national motto and plaintiffs alleged

loss of employment opportunity appears to be the

result of a personal fixation derived from plaintiffs

ardent beliefs, but hardly meets the requirements of

Article III standing. See Simon, 426 U.S. at 41-43

(holding that causation requirement was not met

where plaintiffs asserted that the challenged federal

regulations “encouraged” the actions of private

entities that resulted in the injury complained of).

To the extent that plaintiffs injuries are

traceable to defendants, such alleged injuries seem to

stem from the perceived rank offensiveness of the

national motto, itself. For example, plaintiff asserts

that because of the offensive nature of the motto, he

is unable to, inter alia, raise funds for his ministry,

buy “libations” and “religious garb,” and_ take

“research trips.”

Generally, a plaintiff does not sufficiently

allege injury-in-fact for the purposes of Article III

standing where the only harm is psychological injury

“produced by observation of conduct with which one

disagrees.” See Valley Forge, 454 U.S. at 485. In

Additionally, plaintiff has attached considerable

documentation to his complaint, and, in his opposition, engages

in extensive discussion of personal experiences and encounters

to demonstrate that American culture and the national motto

are often identified with belief in Christianity or monotheism.

However, this documentation and discussion is_ wholly

irrelevant to the claims against these defendants because

plaintiff does not allege the requisite causal connection.

App. 32

Valley Forge, plaintiffs brought suit based upon the

conveyance of government land in Pennsylvania to a

non-profit educational institution operating under

the supervision of a religious order. Valley Forge, 454

U.S. at 468. Plaintiffs, who resided in Maryland and

Virginia and had their organizational headquarters

in Washington, D.C., learned about the transfer

through a news release. Id. at 486-87. The Supreme

Court held that the injuries alleged amounted to

generalized grievances about the conduct of

government, which do not satisfy the requirements of

Article III.

However, federal courts addressing allegations

of Establishment Clause violations after Valley Forge

have recognized that the concept of injury in these

types of cases is particularly elusive because the

Establishment Clause plaintiff is not likely to suffer

physical injury or pecuniary loss. See Surhe_v.

Haywood County, 131 F.3d 1083, 1086 (4th Cir.

1997); Washegesic _v. Bloomingdale Pub. Sch., 33

F.3d 679, 682 (6th Cir. 1994); Saladin v. City of

Milledgeville, 812 F.2d 687, 691 (11t Cir. 1987);

Newdow v. Bush, 355 F. Supp. 2d 265, 277-78

(D.D.C. 2005). Therefore, various Circuits have found

sufficient injury-in-fact based upon the observation of

offensive religious materials where plaintiffs have

alleged a “personal connection” with the challenged

conduct. See Newdow, 355 F. Supp. 2d at 278 (citing

Suhre, 131 F.3d at 1087 (county resident had

standing to challenge Ten Commandment display in

county courthouse); Washegesic, 33 F.3d at 681-83

(former student had standing to challenge religious

portrait displayed at public school); Saladin, 812 F.2d

at 692-93 (residents in and around city had standing

App. 33

to challenge religious symbols on city seal)). Such

cases distinguish the Supreme Court’s rejection of

plaintiffs’ psychological injuries in Valley Forge on

the basis of the proximity of the plaintiffs to the

conduct they challenged, examining circumstances

such as the frequent contact between the plaintiff

and the offensive conduct or display. Newdow, 355 F.

Supp. 2d at 278 n.11 (citing, Suhre, 131 F.3d at

1090).

In this case, plaintiff has alleged that he is

deeply offended by the national motto, “In God We

Trust,” and the inscription of that motto on national

coinage and currency. Because of the ubiquity of

coins and currency in everyday life, plaintiff is

necessarily and continuously confronted with the

alleged endorsement of religion by the federal

government. Further, plaintiff alleges that, as a

member of a small minority of Americans, he is

particularly affected by the use of “In God We Trust”

as the national motto inscribed on coins and

currency. Therefore, to the extent that plaintiff's

injuries are purely psychological in nature, such

confrontation wii the national motto on coins and

currency demonstrates a_ personal connection

sufficient to establish Article III standing.

Finally, plaintiff alleges that his injuries are

redressable by the court. Plaintiff seeks both

declaratory and injunctive relief. As to declaratory

relief, plaintiff requests the court to declare (1) that

Congress violated the Establishment Clause and the

Free Exercise Clause in passing the Acts of 1955 and

App. 34

1956;8 (2) that the inscription “In God We Trust” on

coins and currency violates the Establishment

Clause, the Free Exercise Clause, and RFRA; and (3)

that the national motto violates the Establishment

Clause, the Free Exercise Clause, and RFRA.

Defendants argue that the relief requested by

plaintiff would not meaningfully redress plaintiffs

alleged injuries. In their opposition, defendants

address only plaintiffs requests for injunctive relief,

not his requests for declaratory relief.

The Supreme Court instructs that declaratory

relief can usually provide a preferable alternative

remedy to injunctive relief in cases such as this.

Wooley v. Maynard, 430 U.S. 705, 711 (1977). “[A]

district court can generally protect the interests of a

federal plaintiff by entering a declaratory judgment,

and therefore the stronger injunctive medicine will

be unnecessary.” Id. (internal quotations omitted). A

judicial declaration that the national motto is

unconstitutional because it violates the First

Amendment would redress plaintiffs claimed injury

that the national motto offends him as an Atheist. As

such, and for the reasons set forth below, the court

does not reach the issues of whether the injunctive

relief requested by plaintiff could be ordered by this

court or whether such injunctive relief would

adequately redress his injuries.

Because plaintiff has alleged injury-in-fact,

causation, and_- redressability, plaintiff has

8 The court addresses the jurisdictional problems with

plaintiffs claims against the Legislative Branch defendants,

infra, in Section II.

App. 35

sufficiently alleged standing in the current

litigation.

Il. Immunity

Defendants argue that the Legislative Branch

defendants, namely Congress and the Law Revision

Counsel, must be’ dismissed because’ these

defendants are entitled to immunity. The Speech and

Debate Clause of Article I of the Constitution

provides that “[{t]he Senators and Representatives ...

shall not be questioned in any other Place” for “any

Speech or Debate in either House.” U.S. Const. Art. [,

§ 6, cl. 1. The Supreme Court has interpreted the

scope of the Speech and Debate Clause broadly to

effectuate its purpose of protecting “the integrity of

the legislative process by insuring the independence

of individual legislators.” Eastland v. United States

Servicemen’s Fund, 421 U.S. 491, 501 (1975). In

Eastland, the Court held that in determining

whether the acts of members of Congress are

protected by immunity, the court looks solely to

whether or not the conduct falls within the “sphere of

legitimate legislative activity.” Id. If the conduct falls

within this sphere, Congress is absolutely immune

from being “questioned in any other Place.” Id.

Further, the Clause applies equally to officers and

other employees of the Congress when they are

engaged in legislative activity. See, e.g., id., Gravel v.

United States, 408 U.S. 606, 618 (1972).

In determining whether conduct falls within

the “sphere of legitimate legislative activity,” the

9 Plaintiff also alleges that he has taxpayer standing. Because

the court has determined that plaintiff has sufficiently alleged

citizen standing, the court does not reach this issue.

App. 36

court “must determine whether the activities are ‘an

integral part of the deliberative and communicative

processes by which Members participate in

proceedings with respect to the consideration and

passage ... of proposed legislation.” Eastland, 42]

U.S. at 504 (quoting Gravel, 408 U.S. at 625). In this

case, plaintiff brings suit against Congress for the

adoption of legislation that he alleges violates the

Constitution and federal statutes. Plaintiff also

brings suit against the Law Revision Counsel for

preparing and publishing the United States Code

which includes such legislation.

Plaintiff argues that defendants are not

immune from plaintiffs claims because “performing a

clearly unconstitutional act cannot, in any way, be

considered part of the legislative process.” (Opp’n at

42). This argument runs counter to the Supreme

Court’s broad interpretation of Congress’ immunity

under the Clause. “If the mere allegation that a valid

legislative act was undertaken for an unworthy

purpose would lift the protection of the Clause, then

the Clause simply would not provide the protection

historically undergirding it.” Eastland, 421 U.S. at

508-09; see also Newdow v. U.S. Congress, 328 F.3d

466, 484 (9% Cir. 2003), rev'd on other grounds sub

nom., Elk Grove Unified Sch. Dist. v. Newdow, 542

U.S. 1 (2004).

The enactment of legislation and _ its

subsequent publication is squarely within the sphere

of legitimate legislative activity because plaintiff

seeks to sue Congress for enacting laws and Law

Revisions Counsel for accurately publishing those

laws. Therefore, the Legislative Branch defendants

are entitled to Speech and Debate Clause immunity

App. 37

and accordingly, plaintiffs claims against these

defendants are DISMISSED.’'°

Ill. Establishment Clause

Plaintiff claims that the national motto

violates the Establishment Clause of the First

Amendment. The Ninth Circuit explicitly addressed

this issue in Aronow vy. United States, 432 F.2d 242

(9th Cir. 1970). In Aronow, the court held that

[ijt 1s 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 governmental

sponsorship of a religious exercise.

Id. at 243. The court could not easily 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.”!! Id.

The Ninth Circuit further explained that “the motto

has no theological or ritualistic impact,” but rather,

as stated by Congress, “has ‘spiritual and

psychological value’ and ‘inspirational quality.” Id. at

243-44. Therefore, the Ninth Circuit held that the

10 Because the Legislative Branch defendants are dismissed

based upon Speech and Debate Clause immunity, the court

need not reach the issue of sovereign immunity.

uM Further, the court noted that “such secular uses of the

motto was viewed as sacrilegious and irreverent by President

Theodore Roosevelt.” Id.

App. 38

national motto “In God We Trust” and its printing on

coins and currency does not’ violate’ the

Establishment Clause. Id. at 242-44.

Plaintiff concedes that the Ninth Circuit’s

decision in Aronow is directly on point and is binding

precedent on this court. However, plaintiff contends

that Aronow is “wrongly decided.” “Wrongly decided”

or not, this court must and does, here, follow Ninth

Circuit precedent. See United States v. Johnson, 256

F.3d 895, 916 (9th Cir. 2001) (holding that where “a

majority of the panel has focused on the legal issue

presented by the case before it and made a deliberate

decision to resolve the issue, that ruling .. . can only

be overturned by an en banc court or by the Supreme

Court”). Therefore, defendants’ motions to dismiss

plaintiffs Establishment Clause claim _ are

GRANTED.

IV. Free Exercise Clause and Religious

Freedom Restoration Act

Plaintiff also asserts that the national motto

and its printing on coins and currency violates his

rights under the Free Exercise Clause of the First

Amendment and under the Religious Freedom

Restoration Act (“RFRA”). Plaintiff alleges that the

inscription of the words “In God We Trust” on money

repeatedly forces him to confront a religious belief he

finds «ffensive and which substantially burdens his

right to exercise his Atheistic beliefs. (FAC 4] 223).

Plaintiff also asserts that he is effectively compelled

to carry “religious dogma” on his person and to

proselytize on behalf of the purely religious claim, “In

God We Trust,” when exchanging currency for goods.

(Id. 4] 230-31). As a result, plaintiff asserts, inter

App. 39

alia, that he cannot raise money in his church

meetings and at times, cannot purchase religious

garb, nor “formulate” “the FACTS hbations .. . in its

recommended manner.” (Id. 94] 239, 241, 247-48).

Essentially, plaintiff claims that the alleged

governmental endorsement of monotheism on coins

and currency burdens his right to exercise his

Atheistic beliefs. Government attempts to disfavor a

religion are generally analyzed under the Free

Exercise Clause, while allegations of governmental

efforts to benefit religion are generally addressed

under the Establishment Clause. Harper v. Poway

Unified Sch. Dist., 445 F.3d 1166, 1190 (9th Cir.

2006); Church of Lukumi Babalu Aye, Inc. v. City of

Hialeh, 508 U.S. 520, 531 (1993). Here, the gravamen

of plaintiffs alleged injuries stem from the

government's “endorsement” of monotheism, not the

government's “disfavor” of Atheism. Therefore,

plaintiffs Free Exercise and RFRA claims appear to

simply restate his Establishment Clause claim in an

effort to elude Ninth Circuit binding precedent.

However, in the interest of completeness, the court

briefly addresses plaintiff's claims that the national

motto “substantially burdens” the exercise of his

religion.

As stated above, the Ninth Circuit in Aronow

held that the national motto is excluded from First

Amendment significance because the motto “has no

theological or ritualistic impact” and is of a purely

secular, “patriotic,” and “ceremonial character.” 432

F.2d at 243-44. The court also stated that the

purpose of the national motto is not to use the State’s

coercive power to aid religion, “either” in

Congressional intent or practical impact on society.”

App. 40

Id. at 244 (citing McGowan v. Maryland, 366 U.S.

420 (1961)). Therefore, despite plaintiffs strenuous

protestations of errancy, Ninth Circuit authority has

found the national motto “In God We Trust” to be

secular in nature and use. Id.

The law is clear [{] that governmental

programs that “may make it more difficult

to practice certain religions but which

have no tendency to coerce individuals

into acting contrary to their religious

beliefs” do not infringe on free exercise

rights protected by the First Amendment

(and therefore RFRA).

Newdow v. Bush, 355 F. Supp. 2d at 290 (quoting

Lyng v. Northwest Indian Cemetary Protective Ass'n,

485 U.S. 439, 450-51 (1988)). In light of Aronow,

plaintiffs use of currency does not, as a matter of

law, demonstrate government coercion to proselytize

or evangelize on behalf of monotheism.

Undaunted by Circuit authority, plaintiff

argues that the Supreme Court’s decision in Wooley

v. Maynard supports his Free Exercise claim. 430

U.S. 705 (1977). In Wooley, the Court held that the

State of New Hampshire could not require citizens to

display the state motto, “Live Free or Die,” upon

their vehicle license plates. 430 U.S. at 717. The

Court specifically acknowledged that the New

Hampshire law required individuals “to participate

in the dissemination of an ideological message by

displaying it on [] private property in a manner and

for the express purpose that it may be observed and

read by the public.” Id. at 713. Because the First

App. 41

Amendment protects the right of individuals to hold

a viewpoint different from the majority and to refuse

to foster an idea they find objectionable, the plaintiffs

in Wooley were protected by the First Amendment.

Id. at 715.

However, the Supreme Court made clear in

Wooley that it did not intend that this analysis be

read as sanctioning the obliteration of the national

motto from United States coins and currency. Id. at

717 n.15. While the Court recognized that this issue

was not before it, 1t distinguished its analysis of New

Hampshire’s requirement of placing the state motto

on license plates from the placement of the national

motto on currency.

C]urrency which is passed from hand to

hand, differs in significant respects from

an automobile, which is readily associated

with its operator. Currency is generally

carried in a purse or pocket and need not

be displayed to the public. The bearer of

currency is thus not required to publicly

advertise the national motto.

Id.

Plaintiffs Free Exercise and RFRA claims

arise from his assertion that the motto is blatantly

religious. Because the national motto has been held

to be secular in nature, there is no proper allegation

that the government compelled plaintiff to affirm a

repugnant belief in monotheism.'? See Sherbert_v.

12 Further, as the Supreme Court noted in Wooley, individuals

are not personally associated with the currency they spend as

they are with their automobiles. See 1d.

App. 42

Verner, 374 U.S. 398, 402 (1963). Plaintiff has not

sufficiently alleged that the government “penalized

or discriminated” against him because of his religious

views or that it “conditioned the availability of

benefits upon [his] willingness to violate a cardinal

principle of his religious faith.” See Harper, 445 F.3d

at 1188 (quoting Sherbert, 374 U.S. at 402, 406). Nor

has plaintiff sufficiently alleged that the government

lent “its power to one or the other side in

controversies over religious authority or dogma, or

punish[ed] the expression of religious doctrines it

believes to be false.” Id. (quoting Employment Div.

Dep’t of Human Res. of Oregon v. Smith, 494 U.S.

872, 877 (1990)). As such, plaintiff has not set forth a

claim that the government’s conduct in the

continuing use of “In God We Trust” as the national

motto and its inscription on coins and currency

constitutes a substantial burden on the exercise of

his religious beliefs. Accordingly, defendants’ motions

to dismiss plaintiffs Free Exercise and RFRA claims

are GRANTED.

CONCLUSION

For the reasons stated above, defendants’ motions to

dismiss are GRANTED.

I'TIS SO ORDERED.

DATED: June 12, 2006.

/s/ Frank C. Damrell Jr.

FRANK C. DAMRELL, JR.

United States District Judge

App. 43

Appendix E

Aronow District Court’s Order

Filed September 30, 1968

JAMES P. WELSH, Clerk

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF CALIFORNIA

CIVIL NO. 49992

STEFON RAY ARONOW,

Plaintiff,

) ORDER DENYING

) TEMPORARY

) RESTRAINING ORDER,

) PRELIMINARY

INJUNCTION, AND

MOTION FOR THREE

JUDGE DISTRICT

COURT AND

DISMISSING ACTION

UNITED STATES, et al.,

Defendants.

eee ee” —~

Plaintiff has brought this action apparently

seeking injunctive relief against the use of the

phrase “In God We Trust” as a national motto and to

prohibit the use of said phrase on the currency and

other document of the United States. Plaintiff also

has moved to convene a three-judge district court;

The Court heard plaintiff concerning his

application for interim injunctive rehef and

considered all documents on file and made _ the

following determinations:

App. 44

: The issuance of any temporary restraint

or preliminary injunction of the nature prayed for

in the complaint would cause severe harm to the

defendants and the United States, whereas the

denial of such relief would not cause the plaintiff

irreparable injury;

2. The complaint fails to state a claim

upon which relief can be granted;

5 The complaint is unintelligible;

4. The complaint fails to state any valid

basis for this Court to exercise jurisdiction and in

fact the Court lacks subject matter jurisdiction;

5. The complaint fails to demonstrate that

plaintiff has any standing to maintain this action;

6. The complaint fails to state any claim

which would necessitate the convening of a three-

judge district court and the Court finds that no

substantial constitutional question concerning

any federal statute has been presented;

7. The complaint fails to state any claim

upon which relief can be granted under the

“establishment clause” of the First Amendment.

Accordingly,

IT IS HEREBY ORDERED that plaintiffs

motion to convene a three-judge district court and his

apphcation for temporary restraining order and

preliminary injunction be and hereby are denied;

IT IS FURTHER ORDERED that the

complaint and action be and hereby are dismissed in

their entirety.

App. 45

Dated: Sept. 30, 1968

Lloyd H. Burke

United States District Court

Appendix F

Aronow Court of Appeals Opinion

Filed October 6, 1970

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEFAN RAY ARONOW,

Plaintiff-Appellant,

VS.

> No. 23,444

UNITED STATES OF AMERICA, Et al.,

Defendants-A ppellees,

[October 6, 1970]

On Appeal from the United States District Court

for the Northern District of California

Before: DUNIWAY and CARTER, Circuit Judges,

and THOMPSON, * District Judge.

THOMPSON, District Judge:

This is an appeal from the orders of the District

Court refusing to invoke a three-judge court and

dismissing plaintiff's complaint. The complaint

* Hon. Bruce R. Thompson, United States District Judge, Reno,

Nevada, sitting by designation.

App. 47

aerial

challenged the use of expressions of trust in God by

the United States Government on its coinage,

currency, official documents and_ publications.

Specifically, the action challenged the

constitutionality as repugnant to the Establishment

Clause of the First Amendment of two federal

statutes:

“At such time as new dies for the printing of

currency are adopted, the dies shall bear, at such

place or places thereon as the Secretary of the

Treasury may determine to be appropriate, the

inscription 'In God we Trust,' and thereafter this

inscription shall appear on all United States

currency and coins.” 31 U.S.C. § 324a.

“The national motto of the United States is

declared to be 'In God we trust.’ 36 U.S.C. § 186.

The District Court ruled that plaintiff, as a

taxpayer and citizen, lacked standing to challenge

the validity of the statutes and that the merits of the

claim of unconstitutionality were insubstantial.

Inasmuch as we agree on the insignificance of the

charge of unconstitutionality, we do not reach the

question of standing.

A three-judge court need not be convened under

28 U.S.C. § 2282 unless there are substantial

grounds for attacking the constitutionality of the

Congressional enactment in question. Ex Parte

Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152

(1933); Batley v. Patterson, 369 U.S. 31, 82S. Ct. 549,

7 L. Ed. 2d 512 (1962).

App. 48

[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

governmental sponsorship of a religious exercise.

In Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8

L. Ed. 2d 601 (1962), the Supreme Court held that

the Regents’ Prayer prescribed by state statute as

part of the daily ceremony for opening school was

definitely a_ religious activity falling under the

prohibition of the First Amendment. Yet, in alluding

to the distinction between this and purely patriotic or

ceremonial expressions, the High Court said:

“There is of course nothing in the decision

reached here that is inconsistent with the fact

that school children and others are officially

encouraged to express love for our country by

reciting historical documents such as_ the

Declaration of Independence which _ contain

references to the Deity or by singing officially

espoused anthems which include the composer's

professions of faith in a Supreme Being, or with

the fact that there are many manifestations in

our public life of belief in God. Such patriotic or

ceremonial occasions bear no true resemblance to

the unquestioned religious exercise that the State

of New York has sponsored in this instance.”

It 1s 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

App. 49

the study of a government publication or document

bearing that slogan. In fact, such secular uses of the

motto was viewed as sacrilegious and irreverent by

President Theodore Roosevelt. Yet, Congress has

directed such uses.! 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.”?

Not only does Engel v. Vitale, supra, direct the

result here, but McGowan v. Maryland, 366 U.S. 420,

81S. Ct. 1101, 6 L. Ed. 2d 393 (1961), buttresses the

position. There the Maryland Sunday laws were held

1Church and State in the United States, Stokes & Pfeffer, p.

569.

“Separation purists like Jefferson might have theoretic

objections to these, but even he recognized that as a practical

matter such ceremonial verbalizations could frequently not be

avoided; both his Declaration of Independence and his Virginia

Religious Freedom statute invoked God. The problems raised by

such references are not intrinsic but extrinsic; that is, of

themselves they are of no practical significance, but their

importance hes in their facile and frequent use to justify

practices that raise substantial and practical church-state

problems.” Church State and Freedom, Pfeffer, p. 238.

“Currency has been issued by the United States Government

since 1861. Thus, for almost a century, there has been no

inscription on our currency reflecting the spiritual basis of our

way of life.” Senate Report No. 637, 1955 Cong. & Admin. News,

2417.

“It will be of great spiritual and psychological value to our

country to have a clearly designated national motto of

inspirational quality in plain, popularly accepted English.”

House Report No. 1959, 1956 Cong. & Admin. News, p. 3720.

App. 50

not violative of the Establishment Clause, and the

majority opinion concluded: “We do not hold that

Sunday legislation may not be a violation of the

‘Establishment’ Clause if it can be demonstrated that

its purpose — evidenced either on the face of the

legislation, in conjunction with its legislative history,

or in its operative effect -— is to use the State's

coercive power to aid religion.” As we have seen, the

national motto has no such purpose, either in

Congressional intent or practical impact on society.

And earlier this year, in Walz v. Tax Commission,

397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970),

the High Court, holding tax exemption of religious

organizations constitutional reiterated the McGowan

philosophy, at pp. 669-670:

“The course of constitutional neutrality in this

area cannot be an absolutely straight line; rigidity

could well defeat the basic purpose of these

provisions, which is to insure that no religion be

sponsored or favored, none commanded, and none

inhibited. The general principle deducible from

the First Amendment and al] that has been said

by the Court is this: that we will not tolerate

either governmentally established religion or

governmental interference with religion. Short of

those expressly proscribed governmental acts

there is room for play in the joints productive of a

benevolent neutrality which will permit religious

exercise to exist without sponsorship and without

interference.

“Each value judgment under the Religion

Clauses must therefore turn on whether particular

acts in question are intended to establish or

interfere with religious beliefs and practices or

App. 51

have the effect of doing so. Adherence to the policy

of neutrality that derives from an accommodation

of the Establishment and Free Exercise Clauses

has prevented the kind of involvement that would

tip the balance toward government control of

churches or governmental restraint on religious

””

practice.” (Emphasis added.)

Accordingly, the yudgment of the District Court ts

affirmed.

App Zz

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