There’s no doubt that many of America’s Founding Fathers were Christian.
And so an appeals court has adopted a new standard for deciding cases involving the Establishment Clause, the provision in the First Amendment that forbids the U.S. Congress from establishing a state church.
It also means another failure for Michael Newdow, an atheist who has been filing lawsuits for many years over issues such as the nation’s national motto “In God We Trust.”
In his most recent venture, he filed cases with both the 6th and 8th U.S. Circuit Courts of Appeal at virtually the same time, challenging the use of the motto on U.S. currency.
The judges said the motto neither burdens free exercise nor impacts free speech.
Now the 8th Circuit has reached the same conclusion.
But it set up an entirely new standard.
Becket said it proposed the argument to the judges and found it was adopted.
“The court found that the U.S. Supreme Court’s 2014 decision in Town of Greece v. Galloway ‘offered an unequivocal directive: [T]he Establishment Clause must be interpreted by reference to historical practices and understandings.’ The court recognized that Galloway was ‘a major doctrinal shift’ in Establishment Clause jurisprudence, one that overrules past case law that would threaten ‘Government acknowledgments of religions,’ such as the national motto,” Becket explained.
“Previous cases had abandoned objective historical analysis for free-floating judicial tests that led to absurd results,” the legal team said.
“The good news is you no longer need to be afraid that the pennies in your pocket are gateway drugs to theocracy,” said Diana Verm, counsel at Becket. “The court was right to say that the First Amendment does not ban ‘In God We Trust.’ For too long, the country has been stuck in what Justice Gorsuch once described as ‘Establishment Clause purgatory.’ The court’s decision today is a huge step towards setting things right.”
The new standard will make Newdow’s activism even harder that it has been in the past.
Explained Becket: “Newdow’s lawsuits have long been fueled by the Lemon test, a notorious legal test that ignores what the Founders considered to be an establishment of religion and invites anti-religious activists to file lawsuits against anything that looks vaguely religious. Lemon has been much reviled by justices, judges, and legal experts for its incoherence and invited hostility toward religion.
“The Supreme Court’s landmark Galloway decision implicitly rejected Lemon and replaced it with an objective evaluation of our nation’s history,” Becket explained.
In each of the cases that have just ended, Newdow represented a group of atheists claiming the national motto violates their practice of atheism under the Religious Freedom Restoration Act and the First Amendment.
For years, Newdow has repeatedly attacked the national motto by suing the government. The motto is based on the national anthem and first appeared on U.S. coins in 1864. So far, his lawsuits have all been rejected.
Newdow had claimed that the motto violates atheists’ religious freedom.
And, he complained, it is the state establishment of a religion.
Becket explained in its court filings that when the Founders wrote the First Amendment, an “establishment of religion” meant an official state church with government funding, control … and “fusion of church and state.
Becket said: “Virginia’s earliest settlers attended twice-daily services on pain of losing daily rations, whipping, and six months of hard-labor imprisonment … . The motto’s presence on currency, of course, does not involve church attendance, compulsory or otherwise.”
The motto has been protected many times by the courts, with the 2nd Circuit Court of Appeals earlier rejecting one of Newdow’s lawsuits.
“Newdow’s lawsuits are an attempt to create a heckler’s veto for atheists – a chance for anyone who disagrees with the government to dictate what it can say about our nation’s history. Becket’s briefs explain to the courts that if Newdow succeeds here, church-state conflict will balloon, and we will see a lot more litigation against God around the country,” Becket said.
Newdow had claimed “the mere presence of the national motto on currency violates their Free Speech and Free Exercise Clause rights.”
The atheists asserted that carrying currency amounted to governmental compulsion to speak in support of the national motto and to bear a “religiously offensive” message, in violation of the Free Exercise Clause and the Religious Freedom Restoration Act.
The American Center for Law and Justice said earlier, “Every court that has considered any challenge to the national motto has rejected it.”
But there’s no indication that such complaints won’t be refiled.