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New Doe Child #1 v. Congress of United States

United States Court of Appeals, Sixth Circuit

May 29, 2018

New Doe Child #1; New Doe Child #2; New Doe Parent; New Roe Child #1; New Roe Child #2; New Roe Parent; New Poe Child; New Poe Parent; New Coe Child; New Coe Parent; New Boe Child; New Boe Parent; New Hoe Child #1; New Hoe Child #2; New Hoe Parent #1; New Hoe Parent #2; Holly Huber; Mitchell Kahle; Bernard Klein; Marni Huebner-Tiborsky; Loren Miller; Martin Maier; Michael Howard; Larry Knight; Devin Kuchnya; Tracey Martin; Mark Petricca; Beverly Shapiro; Ron Thomas; Derek Rose; George Shiffer; Nancy Dollard; Dennis Rosenblum; Joseph Milon; Salvatore Salerno; Jessica McQuarter; Susan Carrier; Sarah Maxwell; Stuart Chisolm; Michael Martinez; Adam Clayman; Michigan Atheists; Northern Ohio Freethought Society, Plaintiffs-Appellants,
Congress of the United States of America, Defendant, United States of America, Department of the Treasury; United States Mint; United States Bureau of Engraving and Printing; The American Legion; American Center for Law and Justice, Defendants-Appellees.

          Argued: June 16, 2017

         Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:16-cv-00059-Benita Y. Pearson, District Judge.


          Michael Newdow, Nice, California, for Appellants.

          Lowell V. Sturgill, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

         ON BRIEF:

          Michael Newdow, Nice, California, Thomas M. Horwitz, Westlake, Ohio, for Appellants.

          Lowell V. Sturgill, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Eric Rassbach, Diana M. Verm, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., Jay Alan Sekulow, AMERICAN CENTER FOR LAW & JUSTICE, Washington, D.C., for Amici Curiae.

          Before: NORRIS, MOORE, and STRANCH, Circuit Judges.


          JANE B. STRANCH, Circuit Judge.

         Atheists, Humanists, and one Jewish Plaintiff challenge the federal statutes requiring inscription of the National Motto, "In God We Trust, " on U.S. currency. Plaintiffs allege that the currency statutes cause them to bear, affirm, and proselytize an objectionable message in a way that, for the Atheist and Humanist Plaintiffs, violates their core religious beliefs, and, for the Jewish Plaintiff, renders him complicit in the sins of superfluously printing God's name and destroying God's printed name. Plaintiffs claim that the statutes violate their rights under the Religious Freedom Restoration Act of 1993 (RFRA), the Free Exercise and Free Speech Clauses of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment, as incorporated by the Due Process Clause of the Fifth Amendment. The district court dismissed all claims under Federal Rule of Civil Procedure 12(b)(6). For the reasons below, we AFFIRM.

         I. BACKGROUND

         A. Plaintiffs' Allegations

         Plaintiffs are nine anonymous children, seven of their anonymous parents, and twenty-four named individuals who identify as Atheist and/or Humanist (or otherwise profess disbelief in a God or Gods); one Jewish individual; and two organizations whose members identify as Atheist, Michigan Atheists and Northern Ohio Freethought Society. Broadly speaking, Plaintiffs' First Amended Complaint (Complaint) alleges that the inscription of the Motto "In God We Trust" on U.S. currency, as required by 31 U.S.C. § 5112(d)(1) (coins) and § 5114(b) (bills), violates their individual rights under RFRA and various constitutional provisions.

         Plaintiffs allege that the Motto's inscription on U.S. currency places a substantial burden on their religious exercise in violation of RFRA in three primary ways. The Motto's inscription on the currency allegedly causes Plaintiffs to: (1) "personally bear a religious message that is the antithesis of what they consider to be religious truth"; (2) affirm as true a statement they believe to be false (both that God exists and that "we" as Americans trust in God) when "their religious ideologies mandate that they act with honesty"; and (3) "proselytize for a religious claim that is completely contrary to their personal religious opinions." Most of the allegations state that Plaintiffs object to carrying, affirming, and proselytizing a message whose content contradicts their religious beliefs, but some allegations assert that Plaintiffs' religious beliefs specifically forbid the very acts of carrying, affirming, or proselytizing the Motto. The single Jewish Plaintiff alleges that it is sinful for him to participate in an activity that involves the superfluous printing of God's name on secular documents and that leads to the destruction of that printed name (when currency is destroyed). Plaintiffs allege that carrying and transacting with U.S. coins and bills is often necessary to participate in everyday commerce. By forcing Plaintiffs to choose between not using cash and violating their religious beliefs, Plaintiffs allege, the Government has substantially burdened their religious exercise without a compelling interest as required by RFRA.

         Plaintiffs' Free Exercise claim has a similar basis, while further alleging that the challenged statutes are impermissibly "aimed at the promotion or restriction of religious beliefs." Plaintiffs provide sixty pages of allegations regarding the history of the Motto and its placement on money, which allegedly demonstrate the Government's consistent, longstanding intent to promote Christian monotheism by including the Motto on the currency. Plaintiffs' Free Speech claim alleges that the Government intentionally compels Plaintiffs to proselytize when they pass currency to others. Finally, Plaintiffs allege that the Government's inscription of the Motto on the national currency denies equal dignity to Plaintiffs' religious views, contributing to cultural stigma, alienation, and denigration of their views in violation of the Equal Protection component of the Fourteenth Amendment, as incorporated by the Fifth Amendment.

         In January 2016, Plaintiffs initiated this lawsuit against Congress, the United States, the Secretary of the Treasury, the Principal Deputy Director of the Mint, and the Director of the Bureau of Engraving and Printing. Plaintiffs later voluntarily dismissed Congress. Plaintiffs asked the court to declare that 31 U.S.C. §§ 5112(d)(1) and 5114(b) violate RFRA and the Constitution and to permanently enjoin Defendants from producing currency inscribed with "In God We Trust."

         The district court dismissed all of Plaintiffs' claims for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). It analyzed the RFRA and Free Exercise claims together and concluded that Plaintiffs had not alleged a substantial burden on their religious exercise. Plaintiffs could avoid cash by using credit cards and checks. The court concluded that cash-only transactions did not compel Plaintiffs to proselytize a message that violates their religious beliefs, analogizing to a Supreme Court case that suggested the Motto's inclusion on currency was not compelled speech. See Wooley v. Maynard, 430 U.S. 705, 717 n.5 (1977). The court dismissed Plaintiffs' Free Speech claim for the same reason, again relying on Wooley. Finally, the court dismissed Plaintiffs' Equal Protection claim because it concluded that the challenged statutes do not treat different classes of people disparately. Plaintiffs timely appealed.

         II. ANALYSIS

         We review de novo a district court's dismissal of a complaint for failure to state a claim under Rule 12(b)(6). Currier v. First Resolution Inv. Corp., 762 F.3d 529, 533 (6th Cir. 2014). "To survive a motion to dismiss, the plaintiff need only plead sufficient factual matter, which we must accept as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court relies primarily on the complaint, which we construe in the light most favorable to the plaintiff. Laborers' Local 265 Pension Fund v. iShares Trust, 769 F.3d 399, 403 (6th Cir. 2014).

          A. Plaintiffs' RFRA Claims

         1. Legal Framework

         RFRA provides that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, " unless the Government "demonstrates that the application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(a)-(b). A person whose religious exercise has been burdened may assert a claim against the Government under RFRA. Id. § 2000bb-1(c). If the claim is successful, courts may craft exceptions to statutory government programs to accommodate religious beliefs, but the Government may resist such accommodations with "evidence" that they would "seriously compromise its ability to administer the program." See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 435 (2006). Similarly, although the Government may be required to expend additional funds for such accommodations, the cost to the Government of modifying a program is an important factor in determining the viability of an accommodation for purposes of the least-restrictive-means analysis. Burwell v. Hobby Lobby, 134 S.Ct. 2751, 2781 (2014) (citing 42 U.S.C. § 2000cc-3(c)); see also id. at 2787 (Kennedy, J., concurring) (noting that certain less restrictive means might not be viable if it would be "more difficult and expensive to accommodate a governmental program to countless religious claims").[1]

         In sum, to survive a motion to dismiss, a complaint must allege the following elements of a RFRA claim: (1) the plaintiff seeks to engage in (or avoid engaging in) conduct that constitutes an exercise of religion; (2) the Government has placed a substantial burden on that plaintiff's exercise of religion; and (3) the Government either has no compelling interest in imposing that burden or (4) the Government has another less restrictive means of achieving its compelling interest.

          2. Standing

         Before addressing whether Plaintiffs have sufficiently alleged a RFRA claim, we consider the Government's argument that some of the Plaintiffs lack standing to bring RFRA claims because they have not established Article III injury-in-fact. See Smith v. Jefferson Cty. Bd. of Sch. Comm'rs, 641 F.3d 197, 206 (6th Cir. 2011) (recognizing standing as a "threshold matter").

         Some Plaintiffs allege injury in the form of stigma, ridicule, peer pressure, and exposure to religious dogma, which the Government argues are insufficient for Article III standing. The Complaint lists certain allegations specific to individual Plaintiffs, and it is true that some individualized allegations state merely that a Plaintiff feels offense or fears ridicule. The Complaint, however, is not limited to these individual allegations. Read in full, the Complaint's allegations go beyond mere "observation of conduct with which one disagrees." Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 485 (1982) (denying standing to taxpayers who alleged their tax payments were used in violation of the Establishment Clause but did not allege any direct connection or exposure to the misuse). The Complaint alleges not only that Plaintiffs take offense at the Motto's inscription on currency, but also that the Government has burdened all the Plaintiffs' religious beliefs by pressuring them to alter personalized conduct in which they regularly engage. Cf. Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 683 (6th Cir. 1994) (concluding that Establishment Clause plaintiff had standing because he "has continuing direct contact with the object at issue, " and therefore the injury was "not remote, vicarious or generalized as in Valley Forge"). An allegation that the Government is compelling a particular person to violate personal religious beliefs (as opposed to an allegation by a taxpayer that the Government has violated a generalized constitutional mandate) states an Article III injury-in-fact. Construing the Complaint in the light most favorable to the Plaintiffs and accepting its allegations as true, Plaintiffs allege injury-in-fact sufficient for Article III.

         Certain members of Congress and others argue as amici curiae that all Plaintiffs lack Article III standing because they "have not alleged any governmental coercion to do, or refrain from doing, anything." This argument appears to conflate Article III injury-in-fact with RFRA's substantial burden element. Whether Plaintiffs have alleged an injury-in-fact sufficient for Article III standing is distinct from the analysis of whether they have alleged a substantial burden on their religious exercise under RFRA. "[J]urisdiction is not defeated by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (citation and ellipses omitted).

Rather, the district court has jurisdiction if the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another, unless the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.

Id. (citation and internal quotation marks omitted). Because the existence of Plaintiffs' right to recover depends on how RFRA is applied, the district court had subject matter jurisdiction. Furthermore, Article III does not appear to require injuries caused by government coercion, even if stating a RFRA claim might. Cf. Washegesic, 33 F.3d at 681-83 (recognizing that psychological injury caused by seeing school's portrait of Jesus Christ was sufficient continuing injury-in-fact for an Establishment Clause claim even after the student had graduated and only returned to the school for social purposes). RFRA explicitly states that it permits standing for claims to the full extent permitted by Article III. 42 U.S.C. § 2000bb-1(c). We accordingly reject the standing arguments of Defendants and amici.

         3. Exercise of Religion

         To state a RFRA claim, Plaintiffs' Complaint must first allege that the conduct at issue is an exercise of religion. See 42 U.S.C. § 2000bb-1(a). In assessing whether a plaintiff has alleged a protected exercise of religion, the court's function is to ensure that the claim is based on a sincere religious belief. Hobby Lobby, 134 S.Ct. at 2779. Courts are "to determine whether the line drawn" by the plaintiff between conduct consistent and inconsistent with her or his religious beliefs "reflects an honest conviction." Id. at 2779 (internal quotation marks omitted) (quoting Thomas v. Review Bd. of Indiana Emp't Sec. Div., 450 U.S. 707, 716 (1981)).

         Sincerity is distinct from reasonableness. Hobby Lobby teaches that once plaintiffs allege that certain conduct violates their sincerely held religious beliefs as they understand them, it is not within the court's purview to question the reasonableness of those allegations. Id. at 2777- 78. Nor is it the court's role "to say that their religious beliefs are mistaken or insubstantial." Id. at 2779. Accordingly, even if they must evaluate the substantiality of the burden, courts do not ask whether the particular exercise of religion is a substantial part of the plaintiff's faith. See Haight v. Thompson, 763 F.3d 554, 566 (6th Cir. 2014) (courts are not "to inquire into the centrality to a faith of certain religious practices-dignifying some, disapproving others").

         But the first RFRA element is not unlimited. In addition to being sincere, plaintiffs must allege that the conduct at issue is based on a religious belief, not merely a personal, non-religious belief. See Holt v. Hobbs, 135 S.Ct. 853, 862 (2015) (a challenge "must be sincerely based on a religious belief and not some other motivation")[2]; Gen. Conference Corp. of Seventh-Day Adventists v. McGill, 617 F.3d 402, 410 (6th Cir. 2010) (a RFRA claim must be based on "a religious belief rather than a philosophy or way of life" (citation omitted)). We rejected a RFRA claim upon finding "ample evidence" that the claimant's belief about marijuana was "primarily a personal one, and to suggest that he was using the [church] as a means of protection from criminal sanctions." United States v. Barnes, 677 Fed.Appx. 271, 277 (6th Cir. 2017).[3] Plaintiffs' allegations must also show an actual incompatibility between their religious beliefs and the conduct at issue. See Robinson v. Jackson, 615 Fed.Appx. 310, 313 (6th Cir. 2015) ...

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