Submitted May 11, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 17 C 3417 - Amy
J. St. Eve, Judge.
Wood, Chief Judge, and Manion and Rovner, Circuit Judges.
Mayle, an adherent of what he calls non-theistic Satanism,
sued the United States and officials from the United States
Mint, Department of the Treasury, and Bureau of Engraving and
Printing, to enjoin the printing of the national moto,
"In God We Trust, " on United States currency. The
district court dismissed his complaint, and we affirm.
asserts that the motto amounts to a government endorsement of
a "monotheistic concept of God." Because Satanists
practice a religion that rejects monotheism, they regard the
motto as "an attack on their very right to exist."
Possessing and using currency, Mayle complains, forces him
(and his fellow Satanists) to affirm and spread a religious
message "committed to the very opposite ideals that he
espouses." In addition, Mayle characterizes the printing
of the motto as a form of discrimination against adherents to
minority religions because it favors practitioners of
monotheistic religions. All this, Mayle asserts, demonstrates
that the defendants are violating the Religious Freedom
Restoration Act (RFRA), the Fifth Amendment's Equal
Protection clause, and the First Amendment's Free Speech,
Free Exercise, and Establishment clauses.
granting the defendants' motion to dismiss, the district
court, citing Newdow v. Lefevre, 598 F.3d 638,
645-46 (9th Cir. 2010), held that it is well-settled that the
motto on currency does not violate RFRA or the Free Exercise
or Free Speech Clauses, because the motto has no
theological import. It dismissed Mayle's equal-protection
claim because the currency's appearance affects all
citizens equally. The court did not resolve Mayle's
properly preserved Establishment Clause claim, however, and
so we begin our de novo review there.
claims that the motto establishes religion (in the
constitutional sense) because it is inherently Christian, or
at least monotheistic, and it sends a message to nonadherents
that they are "outsiders." In order to move
forward, he must indicate in which way the government has
transgressed the Constitution: through impermissible
endorsement of a religious view, through coercion, or through
a forbidden religious purpose. Freedom From Religion
Found., Inc. v. Concord Cmty. Sch., 885 F.3d 1038, 1045
(7th Cir. 2018).
reason all of these "tests" or approaches have
developed is that the Establishment Clause does not mandate
the eradication of all religious symbols in the public
sphere. Salazar v. Buono, 559 U.S. 700, 718 (2010).
Because it does not sweep that far, we know that before we
can find that something runs afoul of the Establishment
Clause, we must do more than spot a single religious
component of a challenged activity, no matter how
inconsequential. Lynch v. Donnelly, 465 U.S. 668,
680 (1984). To avoid that error of over-inclusion, we instead
scrutinize challenged conduct "to determine whether, in
reality, it establishes a religion or religious faith, or
tends to do so." Id. at 678. We "look at
the totality of the circumstances surrounding the challenged
conduct from the perspective of a reasonable observer"
who is aware of the practice's history and context.
Freedom From Religion Found., Inc., 885 F.3d at
the "endorsement" approach, that inquiry is
designed to show whether the government is pushing for the
adoption of a particular religion (or for religion over
atheism, humanism, animism, or other alternative world
views). The Supreme Court has observed that the motto
"In God We Trust" does no such thing. The motto
merely acknowledges a part of our nation's heritage
(albeit a religious part). Lynch, 465 U.S. at 676.
The Court has dismissed the notion that this symbol
"pose[s] a real danger of establishment of a state
church [as] far-fetched indeed." Id. at 676,
this guidance, we have twice suggested that the motto, and
specifically the motto on money, does not violate the
Establishment Clause. In Sherman v. Community
Consolidated School District 21 of Wheeling Township, we
said that the original religious significance of "In God
We Trust" has dissipated and the motto is now secular.
980 F.2d 437, 446-48 (7th Cir. 1992). And in American
Civil Liberties Union of Illinois v. City of St.
Charles, we said that "the establishment clause is
not so strictly interpreted as to forbid conventional
nonsectarian public invocations of the deity, a standard
example being the slogan on U.S. currency and coins: 'In
God We Trust.'" 794 F.2d 265, 271 (7th Cir. 1986).
inclusion of the motto on currency is similar to other ways
in which secular symbols give a nod to the nation's
religious heritage. Examples include the phrase "one
nation under God, " which has been in the Pledge of
Allegiance since 1954, see Pub. L. No. 83-396, ch. 297, 68
Stat. 249 (1954), as well as the National Day of Prayer,
which has existed in various forms since the dawn of the
country and is now codified at 36 U.S.C. § 119.
Lynch, 465 U.S. at 676-77. Moreover, when the
religious aspects of an activity account for "only a
fraction, " the possibility that anyone could see it as
an endorsement of religion is diluted. Freedom From
Religion Found., Inc., 885 F.3d at 1047. In the case of
currency, the motto is one of many historical reminders;
others include portraits of presidents, state symbols,
monuments, notable events such as the Louisiana Purchase, and
the national bird. In this context, a reasonable observer
would not perceive the motto on currency as a religious
Establishment Clause claim fares no better under either of
the other two approaches-coercion and purpose- the Supreme
Court takes in this area. Under the former, we look to see
whether the government has coerced the plaintiff to support
or participate in religion. Town of Greece, N.Y. v.
Galloway, 134 S.Ct. 1811, 1825 (2014); Lee v.
Weisman, 505 U.S. 577, 587 (1992); Freedom From
Religion Found., Inc., 885 F.3d at 1048. Mayle maintains
that he has been coerced into participating in Christianity
because credit and debit cards are too risky and he is thus
compelled by default to conduct all of his economic
transactions using money with a religious message. We grant
that using currency is essentially obligatory for someone
such as Mayle, who eschews electronic forms of payment. See
Lee, 505 U.S. at 589. But no one walking down the
street who saw Mayle would have the faintest idea what Mayle
had in his pocket-currency or plastic payment cards or
perhaps just a smart phone. The government has thus not
coerced Mayle into advertising, supporting, or participating
in religion; it has merely included on its currency the
religious heritage of the country along with other
traditions. See Lynch, 465 U.S. at 676, 686. And if,
as the Supreme Court has held, public or legislative prayer
does not force religious practice on an audience, see,
e.g., Town of Greece, 134 S.Ct. at 1824-28,
it is difficult to see how the unobtrusive appearance of the
national motto on the coinage and paper money could amount to
coerced participation in a religious practice.
we have the "purpose" test, under which we ask
whether the motto was placed on the currency for a religious
purpose, or, put differently, whether its inclusion
"lacks a secular objective." Freedom From
Religion Found., Inc., 885 F.3d at 1049; see Lemon
v. Kurtzman, 403 U.S. 602, 612-13 (1971). Mayle contends
that because the Department of the Treasury admits that
religious sentiment was the driving force behind the decision
permanently to affix the motto to currency in 1955, its
attempt now to separate secular "religious
heritage" from "religious practice" is
illusory. But his premise is too simplistic. The Cold War was
at its height during the mid-1950s, and so it is just as
accurate to say that the motto was placed on U.S. currency to
celebrate our tradition of religious freedom, as compared
with the communist hostility to religion. Moreover, even if
the motto was added to currency in part because of religious
sentiment, it was also done to ...