In a decision last week, the U.S. Court of Appeals for the Second Circuit joined four other circuits (the D.C. Circuit, the Tenth Circuit, the Fifth Circuit, and the Ninth Circuit) in upholding the constitutionality of two federal statutes that require that the national motto, “In God We Trust,” be placed on all coinage and paper currency. The court affirmed the dismissal of the complaint by the district court (Baer, J.).

The panel noted that there was some dispute and confusion about the proper Establishment Clause standard to apply in the case. It settled on the Lemon test, which is the “prevailing test in this circuit.” How odd that there is a “prevailing test” in a circuit that may well have been rejected by a current majority of the Supreme Court. And yet while the Second Circuit applied a test whose viability is in question, it also deferred to repeated Supreme Court dicta on the issue, indicating that the motto and its inclusion on the currency is a reference to our religious heritage and therefore satisfies the “secular purpose” and “primary secular effect” prongs of Lemon. The court then saw fit to rely on statements in several dissenting Supreme Court opinions. Even Justice Stevens in his Van Orden v. Perry dissent believed that “In God We Trust” was ok as “an appendage to a common article of commerce” (not quite sure what that means). And Justice Brennan once stated in dissent that “In God We Trust” did not violate the Constitution because the words have lost “any significant religious content” through “rote repetition.” That, too, was claimed by the panel to be persuasive.

The plaintiffs also brought free exercise and RFRA claims. These were rejected as well.