FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL A. NEWDOW,
Plaintiff-Appellant,
v.
PETER LEFEVRE, Law Revision
Counsel; UNITED STATES OF
AMERICA; HENRY M. PAULSON, JR.,* No. 06-16344
Secretary of the Treasury;
HENRIETTA HOLSMAN FORE,
Director, United States Mint;
D.C. No.
CV-05-02339-FCD
THOMAS A. FERGUSON, Director, OPINION
Bureau of Engraving and Printing;
THE CONGRESS OF THE UNITED
STATES OF AMERICA,
Defendants-Appellees,
PACIFIC JUSTICE INSTITUTE,
Defendant-Intervenor-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Argued and Submitted
December 4, 2007—San Francisco, California
Filed March 11, 2010
Before: Dorothy W. Nelson, Stephen Reinhardt, and
Carlos T. Bea, Circuit Judges.
*Henry M. Paulson, Jr. is substituted for his predecessor, John W.
Snow, as Secretary of the Treasury, pursuant to Fed. R. App. P. 43(c)(2).
4195
4198 NEWDOW v. LEFEVRE
Opinion by Judge Bea;
Concurrence by Judge Reinhardt
COUNSEL
Michael A. Newdow (argued), in pro per, Sacramento, Cali-
fornia; for the plaintiff-appellant.
Peter D. Keisler, McGregor W. Scott, Robert M. Loeb, Low-
ell V. Sturgill Jr. (argued), Department of Justice, Washing-
ton, D.C.; for defendants-appellees the United States of
America et al.
Kevin T. Snider (argued), Pacific Justice Institute, Sacra-
mento, California; for defendant-intervenor-appellee Pacific
Justice Institute.
NEWDOW v. LEFEVRE 4199
Norman Goldman, Law Office of Norman Goldman, Los
Angeles, California; for Atheists and Other Freethinkers as
Amicus Curiae in Support of plaintiff-appellant.
Edward L. White III, Thomas More Law Center, Ann Arbor,
Michigan; for the Thomas More Law Center as Amicus
Curiae in Support of the defendants-appellees.
Erik W. Stanley, Mary E. McAlister, Liberty Counsel, Lynch-
burg, Virginia; Mathew D. Staver, Anita L. Staver, Liberty
Counsel, Maitland, Florida; for Liberty Counsel as Amicus
Curiae in Support of the defendants-appellees.
Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Shannon
Demos Woodruff, American Center for Law and Justice,
Washington, D.C.; Douglass S. Davert, David C. Loe, Davert
& Loe, Long Beach, California; John Casoria, Law Office of
John Casoria, Coto de Caza, California; for American Center
for Law and Justice et al. as Amici Curiae in Support of the
defendants-appellees.
Roy S. Moore, Gregory M. Jones, Benjamin D. Dupré, Foun-
dation for Moral Law, Montgomery, Alabama; for the Foun-
dation for Moral Law as Amicus Curiae in Support of the
defendants-appellees.
Gary G. Kreep, Vicki A. Rothman, D. Colette Wilson, United
States Justice Foundation, Ramona, California; for the United
States Justice Foundation et al. as Amici Curiae in Support of
the defendants-appellees.
Steven W. Fitschen, Barry C. Hodge, The National Legal
Foundation, Virginia Beach, Virginia; for Wallbuilders, Inc.,
as Amicus Curiae in Support of the defendants-appellees.
4200 NEWDOW v. LEFEVRE
OPINION
BEA, Circuit Judge:
This case calls upon us to decide whether the national
motto of the United States, “In God We Trust,” and its
inscription on the Nation’s coins and currency, violates the
Establishment Clause of the First Amendment or the Reli-
gious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C.
§§ 2000bb et seq, or both. We hold our decision in Aronow
v. United States, 432 F.2d 242 (9th Cir. 1970), forecloses both
claims. Accordingly, we affirm the district court’s order dis-
missing this case under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be
granted.
I. Factual and Procedural Background
Plaintiff Michael A. Newdow (“Newdow”) is an ordained
minister and founder of the First Amendmist Church of True
Science (“FACTS”). Newdow and the members of FACTS
are Atheists “whose religious beliefs are specifically and
explicitly based on the idea that there is no god.”
This case is part of a group of lawsuits Newdow has started
challenging various government-sanctioned references to God.1
In this action, Newdow alleges the statute that establishes “In
God We Trust” as the national motto, 36 U.S.C. § 302,2 and
the statutes that require the motto’s inscription on the
1
Named as Defendants in this case are the United States of America, the
Congress of the United States of America, the Law Revision Counsel, the
Secretary of the Treasury, the Director of the United States Mint, and the
Director of the Bureau of Engraving and Printing (“Defendants”). The dis-
trict court allowed the Pacific Justice Institute, a “Sacramento-based, non-
profit organization dedicated to defending religious and civil liberties,” to
intervene as a defendant.
2
“ ‘In God we trust’ is the national motto.” 36 U.S.C. § 302.
NEWDOW v. LEFEVRE 4201
Nation’s coins and currency, 31 U.S.C. §§ 5112(d)(1),3
5114(b),4 violate the Establishment Clause of the First
Amendment and the Religious Freedom Restoration Act of
1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq.5 Newdow asks
this court to declare §§ 302, 5112(d)(1), and 5114(b) violate
the Establishment Clause and RFRA. Newdow also requests
injunctive relief to enjoin the Defendants from inscribing the
motto on coins and currency, placing in the United States
Code any act or law that references the motto, and “such and
other further relief” as this court deems proper.
The Defendants filed a motion to dismiss Newdow’s action
under Federal Rule of Civil Procedure 12(b)(6). In their
motion, the Defendants contended, inter alia, Newdow lacks
standing to sue; his Establishment Clause claim is foreclosed
by Ninth Circuit precedent; and he failed to allege facts suffi-
cient to state a RFRA claim.
The district court granted the Defendants’ Rule 12(b)(6)
motion to dismiss. As an initial matter, the district court held
Newdow had standing to bring his claims. According to the
district court, Newdow suffered a cognizable injury-in-fact
because the motto forced him repeatedly to confront a reli-
gious symbol he found offensive. The district court further
held a judicial declaration that the motto is unconstitutional
would redress this injury.
The district court dismissed the Legislative Branch Defen-
dants (Congress and the Law Revision Counsel) as immune
from suit under the Speech and Debate Clause of Article I of
3
“United States coins shall have the inscription ‘In God We Trust.’ ” 31
U.S.C. § 5112(d)(1).
4
“United States currency has the inscription ‘In God We Trust’ in a
place the Secretary decides is appropriate.” 31 U.S.C. § 5114(b).
5
Newdow also brought claims under the Free Exercise Clause, the Free
Speech Clause, and the Equal Protection Clause, but he has abandoned
those claims on appeal.
4202 NEWDOW v. LEFEVRE
the United States Constitution. See U.S. Const. art. I, § 6, cl.
1 (“[F]or any Speech or Debate in either House, [the Senators
and Representatives] shall not be questioned in any other
Place.”). Newdow did not appeal this ruling.
Turning to the merits of the case, the district court held our
decision in Aronow forecloses Newdow’s Establishment
Clause claim. The district court held Aronow also bars New-
dow’s RFRA claim, because the RFRA claim rests on New-
dow’s “assertion that the motto is blatantly religious” and thus
“simply restate[s]” the Establishment Clause claim. There-
fore, the district court dismissed Newdow’s complaint for
failure to state a claim upon which relief can be granted.
Newdow’s timely appeal to this court followed.
II. Standard of Review
We review de novo the district court’s grant of a motion to
dismiss under Rule 12(b)(6). Knievel v. ESPN, 393 F.3d 1068,
1072 (9th Cir. 2005). When we review the grant of a motion
to dismiss, “we accept all factual allegations in the complaint
as true and construe the pleadings in the light most favorable
to the nonmoving party.” Id.
III. Standing
[1] The Defendants contend Newdow lacks standing to
challenge the statutes that adopt “In God We Trust” as the
national motto and require its inscription on coins and currency.6
The “irreducible constitutional minimum of standing” con-
tains three elements: (1) injury-in-fact; (2) causation; and (3)
redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992).
6
Standing to bring a RFRA challenge is “governed by the general rules
of standing under article III of the Constitution,” 42 U.S.C. § 2000bb-1(c),
so our standing analysis in this section applies equally to Newdow’s
Establishment Clause and RFRA claims.
NEWDOW v. LEFEVRE 4203
[2] Newdow has standing to challenge the statutes that
require the inscription of the motto on coins and currency, 31
U.S.C. §§ 5112(d)(1) and 5114(b). Newdow alleges—given
the ubiquity of coins and currency in everyday life—the
placement of “In God We Trust” on the Nation’s money
forces him repeatedly to encounter a religious belief he finds
offensive. Under our precedent, “spiritual harm resulting from
unwelcome direct contact with an allegedly offensive reli-
gious (or anti-religious) symbol is a legally cognizable injury
and suffices to confer Article III standing.” Vasquez v. L.A.
County, 487 F.3d 1246, 1253 (9th Cir. 2007). That Newdow’s
encounters with the motto are common to all Americans does
not defeat his standing, because Newdow has alleged a con-
crete, particularized, and personal injury resulting from his
frequent, unwelcome contact with the motto. See FEC v.
Akins, 524 U.S. 11, 24 (1998) (“[W]here a harm is concrete,
though widely shared, the Court has found ‘injury in fact.’ ”).
Further, Newdow’s unwelcome contact with the national
motto is caused by the statutes requiring the placement of the
motto on coins and currency, and is redressable by an injunc-
tion ordering the removal of the motto from coins and currency.7
Thus, Newdow satisfies all three requirements for Article III
standing as to his challenge to §§ 5112(d)(1) and 5114(b).8
7
The Defendants contend Newdow’s injury is not redressable because
he requests injunctive relief that would prohibit the Defendants from con-
tinuing to place the motto on coins and currency in the future. This injunc-
tion, the Defendants assert, would leave untouched the vast quantities of
currency already in circulation and thus would not “appreciably reduce”
Newdow’s exposure to the motto. Nevertheless, Newdow’s complaint also
asks for “such and other further relief” as we may deem proper, which
could include an injunction requiring the replacement of currency already
in circulation.
8
The Defendants assert Newdow is collaterally estopped from alleging
the placement of the motto on coins and currency causes him an injury-in-
fact. In support, the Defendants cite our decision in Newdow v. Bush, 89
F. App’x 624 (9th Cir. 2004) (unpublished memorandum disposition),
where we held Newdow lacked Article III standing to bring an Establish-
ment Clause challenge to clergy-led prayer at the 2001 presidential inau-
4204 NEWDOW v. LEFEVRE
[3] Nevertheless, Newdow lacks standing to challenge 36
U.S.C. § 302, which merely recognizes “In God We Trust” is
the national motto.9 Unlike §§ 5112(d)(1) and 5114(b), § 302
does not authorize or require the inscription of the motto on
any object. Without §§ 5112 and 5114, the motto would not
appear on coins and currency, and Newdow would lack the
“unwelcome direct contact” with the motto that gives rise to
his injury-in-fact. Although Newdow alleges the national
motto turns Atheists into political outsiders and inflicts a stig-
matic injury upon them, an “abstract stigmatic injury” result-
ing from such outsider status is insufficient to confer standing.
See Allen v. Wright, 468 U.S. 737, 755-56 (1984).
Newdow alleges, however, the injury caused by the
national motto is personal, because he was “recently refused
a job because of the [misperception] of his activism” and has
given up hope of obtaining elected office because of
government-perpetuated anti-Atheism bias. Nevertheless,
these claims are insufficient to establish standing, because
Newdow cannot show these claimed injuries are traceable to
the Defendants, and not to the actions of third parties who are
not before this court—i.e., the employer who denied Newdow
a job or the electorate whom Newdow alleges would not elect
him to public office.10 See Simon v. E. Ky. Welfare Rights
guration, because Newdow failed to allege a “sufficiently concrete and
specific injury.” The Defendants’ collateral estoppel argument lacks merit
because Newdow v. Bush involved a different Establishment Clause chal-
lenge from the present case. See Blackfoot Livestock Comm’n Co. v. Dept’
of Agriculture, Packers & Stockyards Admin., 810 F.2d 916, 922 (9th Cir.
1987) (holding a party cannot invoke collateral estoppel if “the factual
issues litigated were different from those in the present case”).
9
During oral argument, Newdow conceded he could not establish stand-
ing to challenge § 302, were it not for the statutes requiring the inscription
of the motto on coins and currency. Oral Argument (Dec. 4, 2007) at
7:00-8:30.
10
Further, Newdow does not allege he ever sought public office, so any
injury resulting from his failure to attain public office is purely hypotheti-
cal and insufficient to show injury-in-fact. See Lujan, 504 U.S. at 560
(holding an injury must be “concrete and particularized,” and not “conjec-
tural” or “hypothetical,” to give rise to Article III standing).
NEWDOW v. LEFEVRE 4205
Org., 426 U.S. 26, 28, 41-42 (1976) (holding the indigent
plaintiffs lacked standing to challenge an Internal Revenue
Service Ruling that provided favorable tax treatment to hospi-
tals who denied certain services to indigents, because it was
“purely speculative” whether the denials of service could be
traced to the Revenue Ruling or, instead, to decisions made by
the hospitals without regard to any tax implications).
[4] In sum, Newdow lacks standing to challenge § 302, but
has standing to challenge §§ 5112(d)(1) and 5114(b).
IV. The Establishment Clause
[5] The Establishment Clause of the First Amendment
states: “Congress shall make no law respecting an establish-
ment of religion.” U.S. Const. amend. I. The Establishment
Clause prohibits the enactment of a law or official policy that
“establishes a religion or religious faith, or tends to do so.”
Lynch v. Donnelly, 465 U.S. 668, 678 (1984).
Newdow alleges the placement of “In God We Trust” on
coins and currency violates the Establishment Clause.
According to Newdow, the motto unconstitutionally places
the government’s imprimatur on a belief in a monotheistic
God. Newdow further alleges the national motto turns him
and other Atheists into political outsiders by reinforcing the
“twin notions that belief in God is ‘good,’ and disbelief in
God is ‘bad.’ ” Thus, Newdow asserts the statutes requiring
the inscription of the motto on coins and currency run afoul
of the Establishment Clause.
[6] Newdow’s Establishment Clause claim is foreclosed by
our decision in Aronow v. United States, 432 F.2d 242 (9th
Cir. 1970). In Aronow, we held the national motto, “In God
We Trust,” and the statutes requiring its placement on coins
and currency, do not violate the Establishment Clause. Id. at
243. We reasoned:
4206 NEWDOW v. LEFEVRE
It is quite obvious that the national motto and the
slogan on coinage and currency ‘In God We Trust’
has nothing whatsoever to do with the establishment
of religion. Its use is of a patriotic or ceremonial
character and bears no true resemblance to a govern-
mental sponsorship of a religious exercise.
* * *
It is not easy to discern any religious significance
attendant the payment of a bill with coin or currency
on which has been imprinted ‘In God We Trust’ or
the study of a government publication or document
bearing that slogan. . . . While ‘ceremonial’ and
‘patriotic’ may not be particularly apt words to
describe the category of the national motto, it is
excluded from First Amendment significance
because the motto has no theological or ritualistic
impact. As stated by the Congressional report, it has
‘spiritual and psychological value’ and ‘inspirational
quality.’
Id. at 243-44 (footnotes omitted).11
Newdow concedes his Establishment Clause challenge is
“essentially identical” to the one raised in Aronow, but con-
tends Aronow is not binding precedent. As a general rule, we,
as a three-judge panel, are without authority to “overrule a
circuit precedent; that power is reserved to the circuit court
sitting en banc.” Robbins v. Carey, 481 F.3d 1143, 1149 n.3
(9th Cir. 2007). Nevertheless, “where the reasoning or theory
11
Our sister circuits are in accord with Aronow. Indeed, every circuit to
address the question has held the national motto does not violate the
Establishment Clause. See, e.g., Lambeth v. Bd. of Comm’rs of Davidson
County, North Carolina, 407 F.3d 266, 270-73 (4th Cir.), cert. denied, 546
U.S. 1015 (2005); Gaylor v. United States, 74 F.3d 214, 217-18 (10th
Cir.), cert. denied, 517 U.S. 1211 (1996); O’Hair v. Murray, 588 F.2d
1144, 1144 (5th Cir.), cert. denied, 442 U.S. 930 (1979).
NEWDOW v. LEFEVRE 4207
of our prior circuit authority is clearly irreconcilable with the
reasoning or theory of intervening higher authority, a three-
judge panel should consider itself bound by the later and con-
trolling authority, and should reject the prior circuit opinion
as having been effectively overruled.” Miller v. Gammie, 335
F.3d 889, 893 (9th Cir. 2003) (en banc).
Newdow asserts the reasoning and theory of Aronow is
“clearly irreconcilable” with intervening Supreme Court pre-
cedent. According to Newdow, the Supreme Court’s Estab-
lishment Clause jurisprudence went through significant
changes since Aronow was decided. Specifically, Newdow
notes all of the Establishment Clause tests with which he
asserts “In God We Trust” is “incompatible” were developed
by the Supreme Court after Aronow was decided. Therefore,
Newdow contends Aronow is no longer binding precedent.
[7] We disagree. That the Supreme Court has developed
new Establishment Clause tests does not render Aronow
“clearly irreconcilable” with Supreme Court precedent. New-
dow did not and cannot cite a single Supreme Court case that
called into question the motto’s constitutionality or otherwise
invalidated Aronow’s reasoning or theory. To the contrary,
and consistent with Aronow, the Supreme Court has noted in
dicta the national motto does not violate the Establishment
Clause. See County of Allegheny v. ACLU, 492 U.S. 573,
602-03 (1989) (noting the motto is “consistent with the propo-
sition that government may not communicate an endorsement
of religious belief”); Lynch, 465 U.S. at 676 (noting the “sta-
tutorily prescribed national motto ‘In God We Trust’ ” is a
constitutional “reference to our religious heritage”); see also
United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17
(9th Cir. 2000) (“Supreme Court dicta have a weight that is
greater than ordinary judicial dicta as prophecy of what that
Court might hold; accordingly, we do not blandly shrug them
off because they were not a holding.” (citation and internal
quotation marks omitted)).
4208 NEWDOW v. LEFEVRE
Alternatively, Newdow asserts Aronow is not binding pre-
cedent because the district court in Aronow held the “plaintiff,
as a taxpayer and citizen, lacked standing to challenge the
validity of the statutes.” Aronow, 432 F.2d at 243. On appeal,
however, the Aronow court decided the merits of the Estab-
lishment Clause claim after assuming, but without deciding,
the plaintiff had standing. Id. Newdow contends Aronow’s
failure to address the standing question renders it without pre-
cedential value, because a court lacks subject matter jurisdic-
tion without Article III standing. See Bates v. United Parcel
Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc).
[8] This contention is without merit. The Supreme Court in
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83
(1998), decided after Aronow, invalidated the practice of “hy-
pothetical jurisdiction”—i.e., assuming jurisdiction for the
purpose of deciding the merits of a case. Id. at 93-94. After
Steel Co., a court cannot do what the Aronow court did:
address the merits of a case without ensuring it has jurisdic-
tion over the case. Nevertheless, the Supreme Court in Steel
Co. did not overturn the holdings of every case that had been
decided using the “hypothetical jurisdiction” approach; Steel
Co. held only that courts may not decide cases using that
approach in the future. Thus, Aronow’s failure to address
whether the plaintiff had standing does not undermine the pre-
cedential value of its holding that the national motto does not
violate the Establishment Clause.
[9] Accordingly, Newdow’s Establishment Clause chal-
lenge is foreclosed by Aronow.
V. Religious Freedom Restoration Act of 1993
(“RFRA”)
[10] Under RFRA, the government cannot “substantially
burden a person’s exercise of religion even if the burden
results from a rule of general applicability,” unless the gov-
ernment can show the rule is in furtherance of a “compelling
NEWDOW v. LEFEVRE 4209
governmental interest” and is the “least restrictive means” of
furthering that governmental interest. 42 U.S.C. § 2000bb-1.
Newdow alleges the inscription of “In God We Trust” on
coins and currency substantially burdens the free exercise of
his religion in two primary ways. First, because Newdow’s
religion prohibits him from carrying currency that bears the
motto “In God We Trust,” Newdow is impeded in his ability
to engage in religious activities that require cash payments—
e.g., purchase of church attire, ingredients for the church liba-
tion “The Freethink Drink,” and books for the church library;
travel for religious purposes to locations that require cash
payments; and raise funds through cash donations. Second,
because Newdow cannot entirely avoid using money in his
daily life, the inscription of the motto on coins and currency
forces him to violate a basic tenet of his religion and requires
him to evangelize for a religious belief he expressly decries.
[11] The burdens Newdow contends are imposed by the
motto rest on a single premise: the motto represents a purely
religious dogma and constitutes a government endorsement of
religion.12 During oral argument, Newdow confirmed his
RFRA claim is dependent on his contention that the national
motto represents a religious dogma and constitutes govern-
mental sponsorship of religion. Newdow further confirmed he
does not claim his religious exercise would be burdened even
if the motto were not a purely religious dogma.
12
For instance, the complaint makes the following allegations: “New-
dow is forced to confront government-endorsed, purely religious dogma
. . . .”; “Defendants have chosen to place purely ((Christian) monotheistic)
religious dogma on the coins and currency . . . .”; “Defendants’ use of the
purely religious, (Christian) monotheistic motto has also substantially bur-
dened Newdow’s ability to meet and assemble with others for the purpose
of furthering his ministry.”; “[Newdow is] forced to evangelize for (Chris-
tian) Monotheism precisely as Congress and others envisioned.” New-
dow’s opening brief in this court similarly alleges: “Defendants have
essentially compelled [Newdow] to bear on his person items that make a
purely religious claim . . . .”; and “Plaintiff is, in essence, forced to advo-
cate for Monotheism, a religious belief system he expressly repudiates.”).
4210 NEWDOW v. LEFEVRE
[12] As a result, Newdow’s RFRA claim is barred by Aro-
now. Although Aronow was an Establishment Clause chal-
lenge to the motto, and did not involve a RFRA claim,
Aronow forecloses the central premise of Newdow’s RFRA
claim: the motto is a purely religious dogma and a govern-
ment endorsement of religion. Aronow held the national motto
is of a “patriotic or ceremonial character,” has no “theological
or ritualistic impact,” and does not constitute “governmental
sponsorship of a religious exercise.” Aronow, 432 F.2d at
243-44.
VI. Conclusion
We hold Newdow lacks standing to challenge 36 U.S.C.
§ 302. Newdow’s Establishment Clause challenge against 31
U.S.C. §§ 5112(d)(1) and 5114(b) and his RFRA claim are
foreclosed by binding Ninth Circuit precedent. We dismiss
Newdow’s challenge to § 302 for lack of jurisdiction, and
affirm the district court’s order dismissing the remaining
causes of action for failure to state a claim upon which relief
can be granted.
AFFIRMED.
REINHARDT, Circuit Judge, concurring in the result only:
The majority opinion in Newdow v. Rio Linda Union
School District, No. 05-17257, which has today become the
law of the circuit, fails to comprehend the constitutional prin-
ciples set forth in the relevant Establishment Clause cases that
the Supreme Court has decided in the years following our
decision in Aronow v. United States, 432 F.2d 242 (9th Cir.
1970). See Rio Linda dissent passim (Reinhardt, Circuit
Judge). Because I am now required to follow that precedent,
no matter how misguided, I am also now required to conclude
that Newdow’s claims in this case are foreclosed by Aronow,
NEWDOW v. LEFEVRE 4211
and therefore to concur in the result. I do not express any
view as to what result I might have reached in the absence of
the numerous errors of constitutional law that the majority
made in Rio Linda, and the erroneous result it reached.