Greece v. Galloway signaled a "'major doctrinal shift' in Establishment Clause jurisprudence," explaining:
In Galloway, the Supreme Court offered an unequivocal directive: “[T]he Establishment Clause must be interpreted by reference to historical practices and understandings.”...[H]istorical practices often reveal what the Establishment Clause was originally understood to permit, while attention to coercion highlights what it has long been understood to prohibit....
... [H]istorical practices confirm that the Establishment Clause does not require courts to purge the Government of all religious reflection or to “evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage.”....
Here, we recognize that convenience may lead some Plaintiffs to carry cash, but nothing compels them to assert their trust in God. Certainly no “reasonable observer” would think that the Government is attempting to force citizens to express trust in God with every monetary transaction.... Indeed, the core of the Plaintiffs’ argument is that they are continually confronted with “what they feel is an offensive religious message.” But Galloway makes clear that “[o]ffense . . . does not equate to coercion.”Judge Kelly's concurring opinion argues that Galloway was merely a clarification of exiting Establishment Clause doctrine, not a sea change in it; but that exiting Supreme Court case law upholds the motto.
Judge Gruender, in portions of his opinion joined by all 3 judges on the panel, went on to reject plaintiffs' free speech, free exercise, RFRA and equal protection challenges. In considering plaintiffs' RFRA challenge, the court held that plaintiffs have failed to allege a "substantial burden" on their exercise of religion, saying in part:
Here, the complaint alleges that the cost of the Plaintiffs’ adherence to their religious convictions is “relinquishing the convenience of carrying the nation’s money.” While cash may be a convenient means of participating in the economy, there are many alternatives that would not violate the Plaintiffs’ stated beliefs....
We recognize that, in limited circumstances, there may not be a viable cash alternative. But the complaint does not allege that the Plaintiffs are unable to make necessary or even regular purchases, and we do not think that difficulty buying “a popsicle from the neighborhood ice cream truck” or using a coin-operated laundry machine is what the Supreme Court had in mind when it said that RFRA protects against the denial of “full participation in the economic life of the Nation.” See Hobby Lobby, 134 S. Ct. at 2775-76, 2779, 2783.Becket Fund issued a press release announcing the decision. Reuters reports on the decision.
