Establishment of Religion Clause Oral Arguments, Part 1

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Thousand eight.
This is c-span's America and the courts next oral argument on the national motto in god we trust Michael nu dau an atheist seeks to have in god we trust' removed from US currency he argues that the motto violates his First Amendment rice and is an unconstitutional endorsement of religion the night the circuit court of appeals heard this case on December forth in San Francisco.
Morning ladies and gentlemen will take cases in the order in which they appear on the calendar first cases Michael a new down Vs effect of favor Peter laughs even remember out thank you run it please the court if possible I'd like to reserve about six minutes for rebuttal.
Hey could you move that microphone somewhat closer to you sure thing is this better ok traffic keep track of your arm driving i'll try officer ok morning and if it please the court.
I'm an atheist I don't believe in God actually deny God's existence and I think that I'd like to have the same respect for my view that God doesn't exist that people have for their view that God does exist that's what this case is about simply respecting equally equally the diverter religious views i have a church first atheist church of true science and I know when I say that people scoff what are you talking about how can you have a church doesn't believe in god that's exactly the point that you shouldn't scoff at that that's a real idea i would like to do with my fellow atheists what other people get to do with their fellow religious brethren I'd like to join together we have rituals we have songs we meet every new moon and I'd like to be able to do especially what other churches do which I kind of envy they are able to help other people and as Christians as Jews as whatever i would like to be able to do that is atheist and we can't and I'd like to change that and that's what this case again is about what i want i want to be treated equally and a question I would have you asked is what do they want they want to have their religious view espoused by the government and if I understand the Establishment Clause that's exactly what it is exist to prevent they shouldn't be able to do that the Supreme Court has told you repeatedly alright the last time was in in McCreary County that the touchstone for our Establishment Clause jurisprudence the touchstone for the analysis is the principle that the First Amendment mandates neutrality between religion religion and between religion and non-religion all I'm asking is for the follow what the Supreme Court said in appendix seed for the opening brief you have a listing of 30 separate majority opinions of the Supreme Court saying the same thing and the lower federal court cannot responsibly declined to follow the distinct and explicit rules of the Supreme Court ah that was stated by in this circuit on their Underwood right you've had that they keep telling you you have to treat people neutrally you cannot possibly say that is between the belief that God exists and believe that God doesn't exist we're treating them mutually when our national model is in god we trust that's totally inconsistent i'm going to do wasn't the purpose of the Establishment Clause not to establish a church but rather to be a separation of church and state not religion and state it was was it not the purpose not to establish a particular religion as the church of our nation as opposed to saying that as you said that God is removed from every reference in the Constitution or in our pledge what I think the Supreme Court I mean has answered that when it says it wants neutrality between religion and non-religion it's talking about belief in god and non believe in God and I think what we have to do is separate first of all the the words are respecting an establishment of religion when james madison first introduced he drew he introduced it as any religion any federal religion any national religion and that was expanded right they made the words very broad no law james madison vetoed the father of a constitution in 1811 vetoed a bill which just would incorporate a church in the District of Columbia he thought that was a violation of the Establishment Clause so it's a very very broad concept and the idea is that we want to treat everybody's use equally we have basically religion which is all that stuff that has to do with opinions about supreme beings including atheist and we have other stuff that has nothing to do with religion and the First Amendment separates those out so geology and French literature and all that stuff is over there and then here we have religion in the First Amendment and then within that realm of religion it gets confusing because then the Supreme Court sometimes talks about religion and non-religion but both of those are in that big realm of religion and both of those need to be get have equal respect and that's the problem we're not being respected exactly the murder was the last supreme court case where they stated that the first amendment was it intended to do what you just said to differentiate not only prevent the government from establishing a particular religion but supporting religion as a whole as opposed to non-religion I think McCreary County the quote exactly was that the touchstone for our analysis right this is they're saying this is the first thing you you should look at the touchstone for our religion and real and it and religion so within that realm religion religion and religion and non-religion they're talking about those that believe in God and those that don't believe hand is that your position than any reference following up on what to judge him Nelson just ask you any reference by the government to God a God the god god is a violation of that neutrality should not be done and all absolutely not and that was how they tried to depict us all right there's absolutely no way i want God to be referenced when it should be referenced God in the Declaration of Independence it's their right that's kinda hard to take them out is to be very difficult and clearly the the original framers believed in god this there's no question about that but the religion that the framers were also white they also were men they also were property owners we didn't make a constitution just for those individuals we made it for everyone and they said explicitly stated that over and over this is a constitution for all of us including people who don't believe in God that was an objection some people said Tom am a Singletary said well we'll get an atheist or a papist they didn't couldn't stand Catholics either at that time is it will get one of those in office they said no you can't do that we want everybody to have an opportunity and to be treated equally if there's a reference to God we don't hostility toward religion i don't want hostility the god i want to do actually as I say I want to emulate what Christian and other churches do I want to be able to help other people and and get together but I want to be able to do it as atheists and the government of the United States sends a message constantly that you can't do it as atheists right there when we say in god we trust their simultaneously saying atheists are wrong you can't have in god we trust and and have any credence to either way lemons came along that not a slightly different question that goes to your standing on your claim to eliminate the motto of the United States what does you particular eyes injury as opposed to that of anybody else who might share your beliefs that causes you to have standing as to the motto claim well the model claim is sort of intertwined with the the money claim ok but I would argue answer different for different counts argument they are different council you could work on the money claim and lose on the model claim crashing absolutely and i agree it's much more let's concentrate on the motto clean while other time understanding the argument is on the motto claim the problem is that what the government will say is on our money all we're doing is replacing our model on the money alright and the fact is the motto is a purely religious school just to answer that very question and standing and the matter if there were just a model and it wasn't used on the coins i think i have difficulty with standing on the model think however i would argue that this Court did a very good analysis in the in the Ninth Circuit in the Vasquez case when very clearly through standing and it says when you were turned into an outsider essentially right when you are stigmatized as the supreme court discussed discussed an Allenby right and it affects you personally then you have standing.
The question is can I argue that the model somehow affects me standing personally outside of the the coins and I don't think I can't okay okay pardon me for interrupting you please dollars and I'm sorry alright so basically what do we have here today we have a bunch of excuses to violate that principle that the Supreme Court has told you over.
Over you can violate the principle of neutrality 30 separate majority opinions and you don't have to use that test if you don't want you can use any of their tests you can use the Lemon test alright which this Court has reaffirmed multiple times recently right lemon says you can't do it for a religious purpose you have in your complaint listing from I think 55 to 138 every single time when somebody was talking about this stuff in terms of putting in god we trust on our coins and currency especially but also as the motto they said this was to do one thing to espouse this purely religious view that God exists and and they said it have the time with saying that we really don't want to we want to exclude atheist louis-charles robot the chief sponsor of under God in the Pledge of Allegiance he put into the Congressional Record and an atheistic American is a contradiction in terms I mean how much more offensive could you get that could you imagine what the response would be if he had said a jewish-american is a contradiction in terms of a Catholic American is a contradiction in terms we go crazy but we've come to accept that if you can do that radius that's fine because we get this constantly and I think that's a problem and this is the motto this isn't just a statement that like a an acknowledgement this is a profession of faith in god we trust' response to take the words for what they mean the excuses that uses that this is ceremonial it doesn't really mean much I will acknowledge that most people when they pass the money don't think about it but I think the time to look at it is what would happen if we tried to take that off if you rule as I think appropriately that the Equal Protection component of the Establishment Clause really means what it says there's going to be a huge outcry we know that right and that shows that this is not just something ceremonial this is something that has deep meaning to everybody and the Supreme Court has said as much before the justices said this stuff when we talk about God on the model that is religious and it has significant me nice to know you is compared that the program and God repressed is a burden on your exercise of your religion correct if that were not a religious phrase but you objected to the phrase for some reason that you found it inconsistent with your religion.
I suppose for example you found the picture of George Washington on the dollar bill if I what if any bill offensive because you under your you couldn't have graven images or pictures of people are you contending in this case it whether or not it's a religious phrase it's a burden on your I I think your honor that if you look at river as written you could take it to that extreme but i don't think anyone would take it that excited because you're you're you're Europe position them is dependent on in god we trust being a religious ferry and clearly it is and clearly it was you can look through the history when the first person who put this on the the director of the mint I James Pollock as he's were deciding what to put on the coin so when this was first week I'm just trying to see what the issue is I'm not asking really from the merits of ok as is religious raise your position is it's that all solely because it is religious phrase is it a burden on you it i think that it could still be a burden on me even if it weren't intended to be a burden if we're not arguing that i'm not arguing that here was clearly meant to be religious and it was clearly meant to say the message that atheists are not as good as as as people who believe in god there's no question that that's what they had intended it's just following up on on judge Ryan's question it's at your position graduate you have you been said that clear.
I'm are true barred from revisiting the issue under the errand i'll case i don't think so your honor for a number of reasons i think in this court said military me but let's put the air on our case and in perspective okay and that was an appeal from Judge Burke's dismissal of a complaint seeking a three-judge court on the grounds that in god we trust was a violation of the Establishment cause.
And this Tribunal this night Circuit found that Judge Burke's dismissal of the complaint was justified because the claim that in god we trust was a violation of the Establishment Clause was so insubstantial that three-judge court should be convened and sustain that that's been the losses 1970 in this circuit as you know we have a rule that a three-judge panel cannot overrule another three-judge panel unless there's been an intervening was no unless only the bank panel can do that or the Supreme Court if we have a Supreme Court case telling us that the first decision was wrong.
How do we get around that I think it's rather easy to get around that first of all the plaintiff in that case was deemed to not have standing and under fw/pbs which is subsequently law I the you are you had no justice QB mr. arrow had no standing exactly the district court specifically stated that mr. Aaron how did not have standing they came to that conclusion the circuit board said well even if he doesn't have standing we're not going to decide where we're going to decide anyhow it's Owens in substantial and so that point that didn't have sending article 3 standing in about a half hour you're going to be hearing that somebody who had article 3 standing but didn't have Prudential standing we should disregard that President here was a plaintiff who didn't have article 3 standing additionally you're allowed to disregard things that are erroneous clearly erroneous under Arizona the Carroll California it is clearly around the court and I know didn't say the Court of Appeals didn't say that the plaintiff lacked standing it said the district court said he didn't have standing and it the court of appeals that we do not reach the question of standing and underwear that's proper or not not to reach standing in those days they thought that wasn't the most important thing in the world the merits counted but except i would argue that under fw/pbs we now have new law that says subsequent intervening higher law that says you were under an obligation to do that and think about how unfair that would be if we have here free of subsequent intervening higher law and what I'm standing on both issues one on the standing issue that that individual didn't have any and you were under an obligation to make sure there's nothing we can do about that its weak like what that what the founders said about God we can rewrite this history the court 1970 said we're not going to reach the issue standing and we'll decided on the marriage so they did decided on the merits well again they decided but they didn't have a plaintiff who had adequate standing and that the court might not we don't really know the district judge should he said matter which farewell even even if we don't go with the standing rule I i would argue that the subsequent law right since 1970 on 30 separate occasions the Supreme Court has said that this new you need to be neutral and you can't possibly say that you're being neutral between God We Trust and and if people believe in God and people don't believe in God and saying that we get because their subsequent to 1970 supreme court case which has considered the constitutionality of in god we trust either as a motto or as something printed on our currency or corns no dinner isn't your honor then what subsequent law you you're arguing that by analogy.
I'm arguing that the principle that the Supreme Court has said all of the tests that the Supreme Court has come up with since 1972 neutrality test the Lemon test the endorsement test the outsider test the promoter test coercion test all of those tests are violated here and see if you have that seems to me to be intervening higher law but Mr down although we don't have direct Supreme Court president we have addictive which is repeated and repeated that continues to regard the motto as constitutional ceremonial deism and that's been repeated many supreme court cases what is your response my responses that addictive no one has ever been the Supreme Court of a curvy car says we need somebody who has a personal stake in the matter and make the argument to elucidate these difficult constitutional questions you didn't have that person that springboard is never read the brief they don't know the facts that led to the in god we trust they haven't seen them the survey that shows excuse me by a three-to-one margin that made that Americans think this endorses religion they haven't seen with the reactor subsequent outcry that happen everything under God in the Pledge when I was ruled unconstitutional they don't know any of that stuff plus and almost all of those cases for instance in relieving Maynard in Allegheny County what that statement was in response to this descent and the dissent said wait a second if we follow the logic of your majority opinion we're gonna have to take out under God in the Pledge of Allegiance that should be the message that comes to this court that there isn't a majority opinion that implies that in god we trust is illegal or unconstitutional and the defense's wait a second we don't want to do that without any briefing and the majority says in response or like just to me that i forgot to stop here with six minutes I'll few step right now will give you six limits.
Ok super thank you very much mhm good morning may it please the court I'm Lowell surgical from the Department of Justice representing the federal defendants the district court correctly held that this case is controlled by this Court's decision and error now mr. noodle concedes that in that case was that here's this essentially identical to the claims raised in this case in a narrow now is you have discussed the court held that the motto statute and the inscription of the motto on coins and currency is consistent with the Establishment Clause and so ruling this Court held that the motto is a patriotic and ceremonial in nature it also held that the inscription of the motto on coins and currency as a permissible inspirational quality and in holding that relied on the house committee report at the time that the model was adopted and relied on that mr. noodle ignores that but i think that's the best place that you can look to find the the purpose of including the model like that in adopting is the SD of the National Council if the motto has a permissible inspirational message and under era now isn't that inspiration religion painted it's not because the committee report explained that the was inspirational is that the model reflected the history the unique history of this country the model of the phrase in god we trust' came from the the start.
Star-spangled banner our national anthem and what the cat house committee found in examining this was that that was what was it.
Inspiring people that they could look back to the unique history of our country and find that phrase and something is central is as the national anthem and also that the those words have meaning that reflects that as as with the words under God in the Pledge that our country is one that was based on the idea that people have inalienable rights that were given them to buy a generic creator and external source and that is a unique part of our history so that's what the words In God We Trust reflect on the motto and on the coins and currency and the Supreme Court has emphasized that in determining what the reasonable observer would view the reasonable observer is held to be accountable to be aware of the full history and range of context that would be involved in in reviewing any particular government action in the words so the the arrows didn't mean it's not a religious statement it certainly has religious content but in reviewing these kinds of phrases the Supreme Court has emphasized that merely because the word has some religious content does not mean did not dissing power the government from using it for permissible secular purpose.
Justice O'Connor made this point and her concurring opinion in the elk grove case with respect to the words under God in the Pledge she conceded that there there is some religious significance to it but again that doesn't mean that the government can't use it for permissible secular purpose was to secular purpose of using in god we trust' inspirational quality that are now mention that's right and again referring the the people of the country back to the the unique one of the unique attributes of our country again that this is a country that was founded as the declaration of independence so it should say in god we trust into it i'm sorry i didn't in God we trusted.
That would be the historical reference well that the words In God We Trust were taken verbatim almost from the national anthem and when the committee but if its historical it would discover were discussing the past they could have changed the words if they had wanted to but instead they made that is the reasonable I think decision to just adopt the words as they were in the with the the the correct tense from the national anthem and one can hardly blame them from for just taking a phrase lifting it as such from the anthem but only one phrase in God we trusted would affirm that there is a God that we trusted ice unless we were dead he'd still be around.
I assume mr. noodle would object to that as well mr. noodles argument is that arrow now is no longer controlling because it's been enfeebled by subsequent supreme court cases but instead what you will find as you have discussed is that the Supreme Court into majority opinions has specifically referred to the motto as being consistent with the Establishment Clause the court used the reference to the motto in those cases as a benchmark by which it evaluated the constitutionality of the practices that were an issue in those cases and thus the the approval of the model was an important part of the Supreme Court's reasoning in those cases our position is that makes that sufficient to make that reference binding as a matter of precedent in which case would you have in mind council Lynch vs Donnelly is the first case and county of Allegheny is the second case on all of the circuits that have addressed this question other than this circuit for circuits have held that the motto is constitutional so to disagree with the district court in this case you would have to go into conflict with those other courts are you planning mr. noodle doesn't have standing we are you like you do with our recent Vasquez case which requires assistance through frequent regular contact with an allegedly offensive religious symbol as a concrete injury in fact for article 3 standing in verse coast this it was careful to explain the plaintiff in that case lived in the community where the cross was used in the seal hence his standing was particular eyes to him and wouldn't be shared by a person who lived across the country or zero whether they're him into contact with it but you can't say that mr. new dad hasn't come into contact with dollar bills he certainly does but again the Supreme Court has held many times that injury must be particular eyes it can't be just what the court calls a generalized grievance well the only difference in vascular as you take particular is for everybody who lives in that community the difference you're saying is that because everyone in that community comes in contact with the cross they have standing with people in other communities don't come into contact with that cross I think that's at the difference that's the best way to reconcile that case with what the Supreme Court held in the valley forge case Valley Forge involved a gift of federal property to a private religious institution the plaintiff in that case alleged that he became aware of the gift by reading a news release and the supreme court held that kind of injury was not sufficient to give him particular eyes darting all three standing or or Prudential standing because that kind of injury could be shared by virtually any Americans any American pull out it could pull out a news release and read it and that's what's going on here.
Virtually all american more tangible and pulling out emotionally this is something that affects mr. new down every moment of his life affect him directly.
It's i think in fact not tangible because as tangible because hear his objection to it is a purely philosophical one and it's one that the law does not recognize it according to its complaint it's a purely religious one but again that the Supreme Court has addressed this exact claim and Willie vs Maynard and Willie the supreme court said that the government could require somebody's put live free or die on their license plate but it distinguished it was careful to distinguish in a footnote relatives have didn't have this issue before it whatever it means hitting a footnote it couldn't have ruled on this issue when it was ruling on.
The issue of New Hampshire license plate the court took pains in the case to driving i'm like paint it put something in the case we don't know to what extent and agonized over i'll grant you that again i think the different this leaves me I think back to our our main point which is that the difference between our case mr. noodles case and our reading of President his view of what's on point is pulling generalized statements from cases they're out of context and their stated at a very high abstract level and alleging that they control and are on point in a completely different context.
Our view is that when the supreme court specifically makes a statement about the issue that's before the court now and considers it and makes it part of the reason important part of the reasoning in that case that is the kind of ruling that to which you should defer the rest condition might be and if we gave the Supreme Court a good opportunity to resolve this question so that you wouldn't have to argue your victim and he wouldn't have to argue the things you claimed he pulls out of things I think either way you decide this case the Supreme Court will have a chance i'm sure if we win mr. noodle actors picture and everything for you agree with mr. new down they have a good chance if we agree with you.
They might not well might not take it well I think that's up the supreme court and this court shouldn't try to predict what they would do or what they would view this as the best vehicle to take it they want to take a still take it i think is the answer to that well I just thought you might like to give them the opportunity to consider this issue i think we prefer to win the case here.
Don't let me go back to your statement that there is religious content to this model and mr. noodles claim that the religious content makes him do engage in conduct that's inconsistent with his religious principles.
What do you disagree with that yes that's a nice softball for you isn't it.
Well thank you very much we'll take whatever we can get on on two grounds first of all the air now the district court if you reviewed this argument that said that even though there's some religious content the what the reasonable observer would would find in looking at this language that it's a permissible acknowledgement of religion that should be enough I think to take care of his his first this river claim as well because if something is an acknowledgement of religion reviewed by the reasonable observer that should be enough to it too i think also defeated reliance that the reasonable observer if some religious group we take the position that some action interferes with their religious beliefs their religious beliefs don't have to be reasonable do they know but the Supreme Court also has explained that a person can't just say that the moon is made of green cheese and or or and and state a RiverClan or kinases to take a position that's just legally incorrect and rely on that that's the Tony and Susan alam mo case which is cited in our brief if a person can't rely on a statement that she's legally incorrect as providing the basis for a RiverClan but there's a second answer or illegal incorrect and have it that your statement that this motto has some religious content and mr. noodles statement that in his religion that content affect some of them a imposes of substantial burden on him because it's contrary to his religion to to use money with that motto on it what's wrong with that position well the answer is the woolly case this record again looked at the specifically in the woolly case and said that money is passed from hand to hand all the time and that merely using money to pay for something does not require a person to endorse any of the language that is on the money and that's the genesis of his reclaim he's saying that he feels in general it doesn't endorse a person to but in in his religions view and we're gonna motion to dismiss assuming that this is a religion assuming it's good faith in assuming it's sincere and assuming that under that religion it its offensive and they walk past that kind of money because of the religious content i don't have to look at the genesis of his claims that the none of his claim is that he can't use the money because using the money requires him to endorse the words on the on the coin and the Supreme Court of woolly specifically said that is not the case here like using the money is not in different for anybody to I'm sorry not know that the Supreme Court wasn't saying that in the context of what a religion views that statement as requiring they were saying that you know to the average run-of-the-mill citizen it doesn't require an endorsement they weren't considered assuming that they were saying anything other than pure dictum but just taking the statement on its face they weren't saying that in the in the light of a claim that our religion prevents us from doing that and and under our religion that's the view of it with all respect I think that what they said is broad enough and makes enough sense that it does cover this case they didn't distinguish out for example that this wouldn't apply in a free exercise case as opposed to an establishment place they made a broad statement that I think covers the nature of his claim the government has a compelling interest anyway as we've explained in our brief even if he can stay to support what compelling interest in putting a particular slogan on money well as.
Justice O'Connor explained in her elk grove opinion these kinds of statements sustain the nation even today for example mr. noodle I assume but not want to sing god bless god Bless America or the national anthem because they have the word God in them but it's justice O'Connor pointed out these are important things to the nation especially in this time and they shouldn't be taken from the country i think the the words and God who realized an inspirational quality as this Court stated in the air in our case and that should be a sufficient interested to be a compelling interest time again era now discredited the validity of noodles beliefs not at all because again this is his mistake to he claims that the legislative history of the in god we trust' showed that Congress was meaning to denigrate atheist but there's nothing of that at all in the in the legislature and the committee reports for example the committee reports say nothing about atheists what they say is that that Congress was wanting to adopt these words because they were in the national anthem they seem like a good good words they've been universally accepted as far as it could tell it be good works for a motto and that was it so they weren't intending to denigrate anybody and and because the reasonable observer does view them that way then they're not a denigration of anybody I'm far over my time but it would be happy to answer your questions or you lose a monthly sharing in time yes mr. Snyder it from the intervener also has time this morning and you have four minutes he was supposed to have eight and well it will bargain with them thank you.
May please the court.
One of the primary issues before this Court is whether an acknowledgement of religion is the equivalent to an establishment of religion establishment of a religion involves sponsorship financial support active involvement by the sovereign in religious affairs whereas acknowledgement is minimal historical ceremonial generally non-sectarian the motto is falls within the category of an acknowledgement of religion are marked national motto In God We Trust is consistent with the presuppositions the political presuppositions of our country that people are created by God and they are forgiven certain rights fundamental rights cannot be removed at the discretion of the government when the government removes those rights is acting illegitimately in god we trust is reflective of that history and as such the national motto is not a an establishment of religion there was a issue of has been raised relative to neutrality and does a religion can government do anything which supports one religion or any or all religions now taking that particular position would it would be inappropriate and work a draconian effect on cases involving solemnizing acknowledgments of religion sometimes the supreme court refers to these inartfully as ceremonial deism more tolerable references to religion to the minimus acknowledgments of religion but if government were to remove all emblems of our religious heritage from civic life such a purge would a work and unconstitutional hostility towards religion mr. Snyder in every case when a witness takes the stand he's asked to either swear or affirm to tell the truth doesn't seem to bother the taking of evidence so he doesn't have to swear he's going to tell the truth I swear.
So help me God didn't say i framed tell the truth that it doesn't really illuminate our system of trial doesn't it does not so is your stable broad that the removal of God from everything would cause the Republic to tremble well that the Justice Kennedy has has said that that such removal would work and an unconscious across the line and work and unconstitutional hostility towards religion is one court has a has a pined atheism would become the default religion under the Establishment Clause religious acknowledgments by the government if their ceremonial minimal and particularly if they have some sort of history or pedagogical are trying to teach something are perfectly appropriate under the Establishment Clause that this Nash the national motto is not sectarian and that we survived think until nineteen fifty something for a couple hundred years without having that motto or having it on our bills and you think the nation would really be seriously wounded if we couldn't have that matter on our bills the answers the nation would not be wounded but if the courts were to develop a draconian view of strict neutrality on religion so that a principal is such that there was there would be can be no government acknowledgement of our religious heritage that would win the nation that would be inappropriate well hysterical acknowledgement is certainly no one's suggesting we can acknowledge the history of the country but whether it is what you put on a dollar bill doesn't really seem to me to be that the government is any compelling interest if it put ronald reagan's picture on the dollar bill and what a wonderful person you know we survived that and it might not be accurate but uh you know what does it really matter is it really doesn't really have a compelling interest is to what slogan they put on the dollar bill you're the courts point about a compelling interest is is perhaps a little bit off point because that the line arrays that point the government did but rotel limits okay well compelling interest that the what is what is what would be the the harm is that the government a government's ability to acknowledge a the political presupposition of our republic would be would would be off the table who no longer be able to do that that would cause it harm to our country because government cannot take away fundamental rights fundamental rights and a legal rights are not at the discretion of the government the motto in essence is a concession by the government that should it violate inalienable rights it is a it is legit illegitimate that's why we have the Declaration of Independence the motto simply reflects that and that was that is not a an establishment of religion well let's hope we don't have to reach the compelling and prostitution affect the now as our position it in our braces that we believe that the legal framework for analyzing the motto is not lemon the courts have looked to a discrete set of cases in which there is the presence of religion and yet an absence of an establishment of religion marsh again they often refer to these as ceremonial deism marsh chambers is a good example of that a case of that framework where the we have legislative prayer and we have a chaplaincy an atheistic senator challenge that and eighth circuit using lemon found those practices to be constitutionally wanting the US supreme court though acknowledging that lemon was used it declined in by the lower court declined to follow them instead it found history found ceremony in arguably it found a lack of sectarianism and as such it refused to skewer the Chaplaincy and the prayers with lemons three prongs in in that respect we believe that this Court does not have to be bound by lemon question isn't is lemon good law lemon is good law but is not it is not the exclusive law for analyzing an Establishment Clause case that is our our position on that now as far as sectarianism out the doctor noodle has is argued that the motto is in fact sectarian we believe that that isn't as a matter of language is incorrect concept of his self evident that the concept of God is infinite monotheism is held by billions of people it's a theological belief held by billions of people in six or seven different religions it it does is not of the spiritual partisanship that marks sectarianism and if their words in the Christian God We Trust i would assume that you would agree that that would not be appropriate that would that would not be appropriate because it it is not reflective of the originating documents the Virginia Bill of Rights which the first event was taken from they had at first put in reference to to Christ and that was a strict and they wanted it to be a little broader and we think that Congress has been careful and not being to not be sectarian in this matter and so is our view that the that the motto is not sectarian and thus it should not be rule as a violation of the Establishment Clause i'm i'm not certain what my time time is on your brother well with that i distinguish the peace of God here from what rabbi Gutterman used when in the leavers his Wiseman case in his benediction or invocation when he gets talked about God of the free home of the brave and talked about the legacy of america and then we can never again mentioned God and the invocation of Justice Kennedy rule for a majority that that kind of reference with coercive religion that that was in the context of the graduation ceremony and in in that context it was unique factually in that you have students who are this is a milestone in their life where they attending a graduation ceremony in essence the motto is a ubiquitous piece of of an item which we use for for commerce carrying carried on our person and so one does not adopt as their own what they what they carry on their on their on their person in such that's how I one would distinguish that ok rabbis reference was to Michael was it not it was with reference to a specific religion isn't that correct I would I would I believe so i get in unless it's a different than what than what the judge Reinhart just just mentioned but yes it.
The issue is if it's is sectarian then it would probably not pass a the Establishment Clause test my time is expired unless further questions America is always the hardest part for me because there's so many things to address let me first start by the binding precedent on errinel right now said the motto has no theological impact hey that it seems to me is clearly wrong and under Arizona California if something is clearly erroneous it doesn't have precedential value the President of the United States says that the words of the model partner sir it may not have any presidential values united states supreme court but here in the ninth circuit we are bound to follow what other Ninth Circuit decisions have held no matter how erroneous we think they are until the end banc court overrules it.
I'm not okay I my reading of the supreme court case in Arizona was that if in fact something is clearly erroneous and working manifest injustice was what they said.
You may be right in the Supreme Court but I don't think you're right was respecting the ninth circuit but i will try another Inn really manor the they discussed the actual quote was the state's interest to disseminate Andy ology cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message right and that was what they responded to instead wait a second if that's true then we have problems with in god we trust on the coins right with no briefing the the trusted Chief Justice burger I think who wrote the opinion was trying to gather in a a a consensus and so we head back well that's different you know the the the coins you carry on your person and nobody knows about it that's all he said right and the fact is that yes the coins you carry on your person i have on my body.
Not right now okay but when I have to use it i have this message that says In God We Trust and I don't need to get into theology but let me just mention that the God that they're talking about is the God of the Bible that Bible says in Psalms 14-1 the fool have said there is a God they are corrupt they have done abominable works there are none that do with good that is the word of this god I supposedly and having trusted and it focuses anything and I remember which God.
Yes because we can look at the history we know the front what the what James Pollock put on the coins when he did or mint director of the mint he said we claim to be a Christian nation our national coinage should declare trusting God in him who is king of kings and Lord of lords.
I think we know who that was and everybody has said that since they reflect this as a Christian God in the in the deliberations of Congress subsequently in the nineteen fifties they mentioned Christianity multiple times.
This we know which god this is all right i don't think there's any question if people you ask people what's America they say we're a Christian nation by sixty percent we know which god this was and I am certainly allowed to interpret it that way with such a strong history and this is to prevent the President of the United States when he talks about last year when he spoke in the talking about the 50th anniversary of the model he said the words In God We Trust recognize our but the blessings of the Creator not a creator we know which one alright and so we offer our thanks for his capital H great gift of Liberty I think we know which which God that is and let me just finish with laviticus in 2416 on whoever blasphemes the name of the Lord shall surely be put to death I don't think I should really be required to carry around somebody wants to kill me are that I trust in such a person the other issues are that the history and tradition that we keep comparing about if I might just give an example for one second just this year the house passed House Resolution 431 which look back at the history and tradition of anti-miscegenation statutes and it said well that's looking in Maryland 1661 we started at the supreme court upheld it in 1883 and pastry alabama in 1948 38 of the 48 states almost eighty percent had anti-miscegenation statutes that was our tradition that was our heritage and what the Supreme granted in Loving v Virginia unanimously said was we don't care about that history because it's subversive of the principle of equality if this case isn't subversive of the principle of equality I don't know what is the government of the United States has as its national motto the guiding principle of our nation we are going to take this one purely religious view and put that on our coins and currency and those of you who don't agree are wrong because you can't say that God doesn't exist if we the government said in god we trust' clearly that subversive of the principle of equality there's a million other things they mentioned than the star-spangled banner that was not the initiating event right that was what they found subsequently somebody read through this and other four standards that are ya this be our motto in god i trust.
Let's use that to justify this after the Supreme Court told us that they couldn't do it for religious purposes so that ok we'll call that historic i'm singing god bless america i have no problems with people singing god bless america what I have a problem with these if the government of the United States says let's make god Bless America our national anthem because it says god bless america.
That's different that's a governmental endorsement of religion and there's the Supreme Court is also said there's a crucial difference between government speech endorsing religion which the Establishment Clause forbids and private speech endorsing religion so you would also maybe not in this ones who move to strike the references in the national anthem to the Creator not at all right the reference in that would be hostility toward religion in the national anthem in the fourth stanza which nobody knows about they have this one thing that talks about god I wouldn't strike it just because there's some good stuff in there.
If on the other hand they said the Congress said let's move the forest answer to the first answer and everybody saying that because that's what we really want to talk about God then I would have a problem with it the question is what's government intent right why don't want hostility toward religion at all i want God in the public square i want to hear that discussion you may change my mind used to run government telling people exactly that's always and the government says it's not this isn't a reference to God it says In God We Trust that's an active statement now and I think you're absolutely correct Judge George Reinhart right they could have said in god we trust if that's what they meant and nobody made that claim until after the Supreme Court said if you admit the truth.
We're gonna have to undo and God we choose parenting god we trust III basically i can conclude now what let me just make one other two other things one is that just last week and this is a just to show how this actually affects me and this is real.
Alright last week on the twenty-eighth of november right the Department of Education and the office of faith-based and community initiatives had a workshop in portland oregon i definitely wanted to go in our church and it's a real Church i know it sounds loony and everything else it's real right we have this we we want to do the things that other people do that help other people we recognize that we are fortunate we can help other people and there was a thing that all the stuff was great there was this this program this workshop in portland that had a means for you to get funding to do teaching of the disadvantage in terms of language and math language arts and math I definitely wanted to go I refuse to go i would have there's no way even if i use credit cards I have to tip somebody I have to use the vending machine have to do parking i'm not going to do this to act from my church to go in and say I trust in this being that i'm not going to do that and that's a perfect example is just one of many this is clearly a substantial burden government has no compelling interest and if it had a compelling interest this is certainly not the most narrow means of dealing with it so even if we say that Aaron was good law and the Establishment Clause claim fails the river claim obviously is valid and i hope this quick will uphold that I just want to say basically this is a you know again repeat in Loving v Virginia this is subversive of equality I'm asking merely that the government treat every American equally on the basis of their religious beliefs atheists have been disenfranchised for long enough we get I mean this here on national TV Oliver North takes out of dollars look in god we trust that's what we stand for and he wasn't alone that's a representation I think of the majority of Americans you have data that shows it in the complaint and what are they are asking for their asking that I mean we have the Department of Justice arguing please come on allow us to favor one particular religious belief i can't believe I'm hearing that from the Department of Justice of the United States which the president of the united states is the beacon of religious freedom.
This is not religious freedom thank you with come down taste tester kit will be submitted.
The lower court ruled against noodle saying that the words In God We Trust amounted to a secular national slogan the Ninth Circuit Court of Appeals has not issued a ruling yet you can watch this oral argument again at c-span dog award.
Just click on America and the courts and join us next week for America and the courts saturday evenings at seven p.m. eastern on c-span on tonight's American perspectives a tribute to dennis hastert the longest serving republican speaker of the house.
Michael dukakis the 1988 Democratic nominee for.


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