Kenneth Mayle v. United States ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3221
KENNETH MAYLE,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 3417 — Amy J. St. Eve, Judge.
____________________
SUBMITTED MAY 11, 2018 — DECIDED MAY 31, 2018
____________________
Before WOOD, Chief Judge, and MANION and ROVNER, Cir-
cuit Judges.
WOOD, Chief Judge. Kenneth Mayle, an adherent of what
he calls non-theistic Satanism, sued the United States and of-
ficials from the United States Mint, Department of the Treas-
ury, and Bureau of Engraving and Printing, to enjoin the
printing of the national motto, “In God We Trust,” on United
States currency. The district court dismissed his complaint,
and we affirm.
2 No. 17-3221
Mayle asserts that the motto amounts to a government en-
dorsement of a “monotheistic concept of God.” Because Sa-
tanists 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 fel-
low Satanists) to affirm and spread a religious message “com-
mitted to the very opposite ideals that he espouses.” In addi-
tion, Mayle characterizes the printing of the motto as a form
of discrimination against adherents to minority religions be-
cause 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 Amend-
ment’s Free Speech, Free Exercise, and Establishment clauses.
In 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 dis-
missed Mayle’s equal-protection claim because the currency’s
appearance affects all citizens equally. The court did not re-
solve Mayle’s properly preserved Establishment Clause
claim, however, and so we begin our de novo review there.
Mayle 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 reli-
No. 17-3221 3
gious view, through coercion, or through a forbidden reli-
gious purpose. Freedom From Religion Found., Inc. v. Concord
Cmty. Sch., 885 F.3d 1038, 1045 (7th Cir. 2018).
The reason all of these “tests” or approaches have devel-
oped is that the Establishment Clause does not mandate the
eradication of all religious symbols in the public sphere. Sala-
zar v. Buono, 559 U.S. 700, 718 (2010). Because it does not
sweep that far, we know that before we can find that some-
thing 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 1045.
Under the “endorsement” approach, that inquiry is de-
signed 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, 686.
Following this guidance, we have twice suggested that the
motto, and specifically the motto on money, does not violate
4 No. 17-3221
the Establishment Clause. In Sherman v. Community Consoli-
dated School District 21 of Wheeling Township, we said that the
original religious significance of “In God We Trust” has dissi-
pated 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 nonsec-
tarian public invocations of the deity, a standard example be-
ing the slogan on U.S. currency and coins: ‘In God We Trust.’”
794 F.2d 265, 271 (7th Cir. 1986).
The inclusion of the motto on currency is similar to other
ways in which secular symbols give a nod to the nation’s reli-
gious heritage. Examples include the phrase “one nation un-
der 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 his-
torical 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 reli-
gious endorsement.
Mayle’s 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
No. 17-3221 5
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 partici-
pating 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 pay-
ment. 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 na-
tional motto on the coinage and paper money could amount
to coerced participation in a religious practice.
Last, 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 sec-
ular 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
6 No. 17-3221
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 reli-
gion. Moreover, even if the motto was added to currency in
part because of religious sentiment, it was also done to com-
memorate that part of our nation’s heritage. See Lynch,
465 U.S. at 676, 686. And having just one secular purpose is
sufficient to pass the Lemon test. Bridenbaugh v. O'Bannon,
185 F.3d 796, 800 (7th Cir. 1999).
Inscribing the motto on currency, Mayle argues next, vio-
lates the Free Speech Clause because the national motto con-
veys a religious message, which he is being forced to convey:
that he “trusts” in a deity. But Mayle is not in any meaningful
way affirming the motto by using currency. See Wooley v.
Maynard, 430 U.S. 705, 717 n.15 (1977). He is not wearing a
sign or driving a car displaying a slogan. See id. at 717. As the
district court noted, most people do not brandish currency in
public—they keep it in a wallet or otherwise out of sight until
the moment of exchange. And the recipient of cash in a com-
mercial transaction could not reasonably think that the payer
is proselytizing. If the recipient thought about it at all, she
would understand that the government designed the cur-
rency and is responsible for all of its content, including the
motto. She would not regard the motto as Mayle’s own
speech.
Mayle also argues that, in holding and using currency, he
is compelled to affirm a religious message that contradicts his
Satanist beliefs, and so the motto on currency violates his
rights under the Free Exercise Clause and places an undue
burden on his exercise of religion for purposes of RFRA,
No. 17-3221 7
42 U.S.C. §§ 2000bb-1(a), (b). Under the Free Exercise Clause,
the law authorizing the placement of the motto on currency is
constitutional if it is neutral and generally applicable. See Lis-
tecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731, 742
(7th Cir. 2015) (quoting Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751, 2761 (2014) (“[N]eutral, generally applicable
laws may be applied to religious practices even when not sup-
ported by a compelling government interest.”)). But Mayle’s
claim fails because the motto’s placement on currency has the
secular purpose of recognizing the religious component of
our nation’s history, see Sherman, 980 F.2d at 446–47, and it
does not affect current religious practices. The motto appears
on all currency, in addition, which means that law in question
is generally applicable.
Under RFRA, Mayle must allege plausibly that the exer-
cise of his religion is substantially burdened by the motto’s
placement on currency. See Korte v. Sebelius, 735 F.3d 654, 673
(7th Cir. 2013). Mayle argues that having the motto printed on
currency forces him to choose between using cash, a neces-
sary part of life, and violating his sincerely held religious be-
liefs. Using the currency makes him feel “guilt, shame and
above all else fear,” and those feelings, he contends, qualify
as a substantial burden. He likens himself to a fundamentalist
Christian baker who would be forced to endorse gay mar-
riage—a practice that violates his religious beliefs—by selling
a couple a wedding cake. This term the Supreme Court is con-
sidering that baker’s case. Craig v. Masterpiece Cakeshop, Inc.,
2015 COA 115, cert. granted, 138 S. Ct. 419 (U.S. Oct. 30, 2017)
(No. 16-111). No matter how that case is decided, however, no
reasonable person would believe that using currency has reli-
gious significance. See Wooley, 430 U.S. at 717 n.15. And be-
cause using money is not a religious exercise, and the motto
8 No. 17-3221
has secular as well as religious significance, Mayle has not
plausibly alleged that the motto’s placement on currency in-
creases the burden on practicing Satanism. Moreover, Hobby
Lobby, a case upon which Mayle relies, does not stand for the
proposition that the government must accommodate every
person who believes that a particular law is incompatible with
the person’s sincerely held religious beliefs. 134 S. Ct. at 2760,
2783. Unlike the plaintiffs in Hobby Lobby and Thomas v. Review
Board of Indiana Employment Security Division, Mayle has not
suffered a financial burden because of his religious beliefs,
nor has he altered his behavior to avoid violating his religious
beliefs. See id. at 2766, 2755; 450 U.S. 707, 709–12, 716–18
(1981). Mayle’s feelings are not insignificant, but the burden
he experiences is not substantial.
Mayle last attempts to state a claim under the Equal Pro-
tection component of the Fifth Amendment. He argues that
the government’s inclusion of what he describes as a Chris-
tian message on currency, but not any Satanist or other reli-
gious dogma, amounts to irrational government discrimina-
tion. (Christianity, of course, is not unique in its monotheism;
the same can be said of Judaism and Islam, but this fact does
not matter to our analysis.) We approach this as we would an
equal-protection claim under the Fourteenth Amendment,
see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217–18
(1995), while applying rational-basis scrutiny. See St. John's
United Church of Christ v. City of Chicago, 502 F.3d 616, 638
(7th Cir. 2007) (when Free Exercise claim has failed, rational-
basis scrutiny applied to religious equal-protection claim
based on same facts). To proceed on this claim, Mayle must
plausibly allege government action “wholly unrelated to any
legitimate state objective.” Vision Church v. Vill. of Long Grove,
468 F.3d 975, 1001 (7th Cir. 2006) (citation omitted). But as
No. 17-3221 9
multiple courts have said, the motto’s placement on currency
is related to at least one legitimate governmental objective—
acknowledging an aspect of our nation’s heritage. See, e.g.,
Lynch, 465 U.S. at 676, 686; Sherman, 980 F.2d at 446–47.
For all of these reasons, we join every court that has di-
rectly addressed these issues in holding that it is neither un-
constitutional nor a violation of RFRA to print the national
motto on currency. See, e.g., Newdow v. Peterson, 753 F.3d 105
(2d Cir. 2014); Newdow v. Lefevre, 598 F.3d 638 (9th Cir. 2010);
Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996); O'Hair v.
Murray, 588 F.2d 1144 (5th Cir. 1978); Aronow v. United States,
432 F.2d 242 (9th Cir. 1970). We do so not because we think
that the phrase “In God We Trust” is absolutely devoid of re-
ligious significance, but instead because the religious content
that it carries does not go beyond statutory or constitutional
boundaries.
We thus AFFIRM the judgment of the district court.