UPDATES & ANALYSIS

Eighth Circuit rules ‘In God We Trust’ on U.S. currency is constitutional

by Rox Laird | September 4, 2018

The motto “In God We Trust” has been printed on U.S. currency since the Civil War, but the U.S. Court of Appeals for the Eighth Circuit confronted the question of whether it violates the Constitution for the first time in an Aug. 28 ruling.

The answer? The motto does not violate the Constitution.

A three-judge panel of the St. Louis-based court, which has jurisdiction over Iowa and six other Midwest states, rejected arguments raised in an appeal of a Minnesota District Court decision by 27 atheists or children of atheists and two atheist organizations.

The plaintiffs argued that government-issued bills and coins bearing a “purely religious” message amount to an explicit endorsement of Christianity and monotheism. They contend that violates the Establishment Clause, the Free Speech Clause and the free-exercise clause of the First Amendment, equal protection under the Fifth Amendment and the Religious Freedom Restoration Act.

Each of these claims was rejected by the panel – consisting of Judges Raymond Gruender of St. Louis, Arlen Beam of Lincoln, and Jane Kelly of Cedar Rapids. Kelly, however, filed a separate opinion concurring with the judgment, but she disagreed with the majority’s discussion of the Establishment Clause question.

Writing for the majority, Gruender pointed out that the other federal circuit appeals courts that have considered this question have held that the motto does not violate the Establishment Clause, and the U.S. Supreme Court has repeatedly said as much (although in dicta, or passing references in related cases).

“Thus, we are not writing on a blank slate,” Gruender wrote.

“We do, however, address this issue for the first time today under the guidance of new Supreme Court precedent, not yet considered in this circuit,” Gruender wrote, referring to the 2014 decision of the U.S. Supreme Court in Town of Greece v. Galloway.

In Galloway the Supreme Court said the Town of Greece town council’s practice of opening meetings with a prayer did not offend the Establishment Clause, which the Court said “must be interpreted in reference to historical practices and understandings.”

While printing “In God We Trust” on currency did not begin until 1864, Gruender said the practice is in keeping with early understandings of the Establishment Clause. Religion has been a part of government since the nation’s founding, the Supreme Court has observed, and “the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him.”

The plaintiffs argued that, based on statements of public officials at the time, the intent of Congress in mandating a motto referring to one God on currency was “to suffuse our nation with (Christian) Monotheistic religion.”

But Gruender said “historical practices confirm that the Establishment Clause does not require courts to purge the Government of all religious reflection or to ‘evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage.’ Precluding general references to God would do exactly that.”

Judge Kelly departed from the panel majority’s analysis of the Supreme Court’s Galloway decision, which she said “seeks to remake Establishment Clause jurisprudence in this circuit based on analysis that is overly broad and unnecessary to the resolution of this case.”

“Galloway clarifies that the Establishment Clause is to be interpreted ‘by reference to historical practices and understandings,’ ” Kelly wrote. “But it also clarifies that Supreme Court precedent ‘must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation.’ In other words, even when history indicates that a practice does not offend the Establishment Clause, but the Court’s other Establishment Clause tests suggest that it does, history alone cannot carry the day.”

Galloway “does not make clear what history we should consider in this case,” Kelly wrote, pointing out that putting “In God We Trust” on currency happened 72 years after the ratification of the Bill of Rights, and it was not put on all currency until 1955.

The Founders proposed several mottos for the new nation, she wrote, including “E Pluribus Unum,” and the original legend on continental coins minted in 1787 was “Mind Your Business.” Thus, “the motto’s history of inclusion on the currency tells us nothing about what the Framers thought, and does not say much of anything about what the Establishment Clause means.”

Rather than try to parse Galloway, Kelly said, “the better approach is to resort to what the Supreme Court has already told us. The Court has expressed a view that — irrespective of the Establishment Clause test applied — printing the motto on currency is permissible.”

Tags: Eighth Circuit, Establishment Clause, First Amendment, Free Speech