Filed: Apr. 03, 2020
Latest Update: Apr. 03, 2020
Summary: United States Court of Appeals For the First Circuit No. 18-2085 OLGA PAULE PERRIER-BILBO, Plaintiff, Appellant, v. UNITED STATES; L. FRANCIS CISSNA, Director, U.S. Citizenship and Immigration Services, Defendants, Appellees, CONGRESS OF THE UNITED STATES, Defendant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge] Before Torruella, Thompson, and Barron, Circuit Judges. Michael A. Newdow, for appellant. Scott G. Stewart,
Summary: United States Court of Appeals For the First Circuit No. 18-2085 OLGA PAULE PERRIER-BILBO, Plaintiff, Appellant, v. UNITED STATES; L. FRANCIS CISSNA, Director, U.S. Citizenship and Immigration Services, Defendants, Appellees, CONGRESS OF THE UNITED STATES, Defendant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge] Before Torruella, Thompson, and Barron, Circuit Judges. Michael A. Newdow, for appellant. Scott G. Stewart, D..
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United States Court of Appeals
For the First Circuit
No. 18-2085
OLGA PAULE PERRIER-BILBO,
Plaintiff, Appellant,
v.
UNITED STATES; L. FRANCIS CISSNA, Director,
U.S. Citizenship and Immigration Services,
Defendants, Appellees,
CONGRESS OF THE UNITED STATES,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Michael A. Newdow, for appellant.
Scott G. Stewart, Deputy Assistant Attorney General, Civil
Division, U.S. Department of Justice, with whom Francesca Genova,
Trial Attorney, Office of Immigration Litigation, Joseph H. Hunt,
Assistant Attorney General, Matthew J. Glover, Counsel to the
Assistant Attorney General, Civil Division, William C. Peachey,
Director, Erez Reuveni, Assistant Director, were on brief, for
appellees.
April 3, 2020
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TORRUELLA, Circuit Judge. Plaintiff-appellant Olga
Paule Perrier-Bilbo ("Perrier-Bilbo") appeals the district court's
order granting summary judgment in favor of the United States and
Francis Cissna, the Director of the United States Citizenship and
Immigration Services ("USCIS") (collectively, the "Government"),
on her claims that the inclusion of the phrase "so help me God" at
the end of the oath of allegiance administered at United States
naturalization ceremonies violates the Establishment and Free
Exercise Clauses of the First Amendment, the Religious Freedom
Restoration Act, 42 U.S.C. §§ 2000bb–2000bb-4 ("RFRA"), and the
Fifth Amendment equal protection and procedural due process
protections. In addition, Perrier-Bilbo also appeals the district
court's order denying her post-judgment motion asserting a due
process violation arising from the USCIS Boston Field Office
director's conduct in handling and then denying her first
naturalization application. She requests that we declare the
federal regulation prescribing the oath's language
unconstitutional, that we enjoin USCIS and lower courts from using
the phrase "so help me God" during the naturalization ceremony for
which she is scheduled, and that we order USCIS to reimburse the
$680 she paid for her second naturalization application. Because
we find that the inclusion of "so help me God" as a means of
completing the naturalization oath does not violate the First or
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Fifth Amendments or RFRA, and because the post-judgment due process
claim was not properly presented below, we affirm.
I. Background
A. Factual Background
Perrier-Bilbo is a French citizen who moved to Scituate,
Massachusetts in 2000. In 2002, she became a United States
permanent resident and subsequently received a green card in 2004.
In 2008, Perrier-Bilbo decided to become a United States citizen,
so she submitted an application for naturalization to USCIS.
After attending an interview with USCIS and passing her English
language and civics tests, USCIS granted her application.
Perrier-Bilbo then received a form notifying her that she would
take the oath of allegiance to the United States on March 4, 2009.
This was her last mandatory step towards admission to citizenship.
See 8 U.S.C. § 1448(a); 8 C.F.R. § 337.1(a). The Department of
Homeland Security nationality regulations provide the language of
the oath, which concludes: "I take this obligation freely, without
any mental reservation or purpose of evasion; so help me God."
8 C.F.R. § 337.1(a) (emphasis added).
Perrier-Bilbo's "sincere religious belief system
includes the denial that there exists any 'God.'" Therefore, in
January 2009, she wrote to USCIS requesting that the oath be
administered without the phrase "so help me God." USCIS informed
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Perrier-Bilbo in April 2009 that she could either "participate in
the oath ceremony and omit the 'so help me God' language, or
schedule a private oath ceremony where the government would not
use that phrase." 1 Months later, in August 2009, USCIS sent
Perrier-Bilbo a letter giving her "15 days in which to notify USCIS
which of the options provided to [her was] acceptable" and warning
her that if she failed to respond or "decline[d] to specify one of
the options," USCIS would reopen her case and "deny [her]
application for naturalization for lack of prosecution."
That same month, Perrier-Bilbo's lawyer sent a letter to
the director of the USCIS Boston Field Office, Karen Haydon
("Director Haydon"), to alert her that Perrier-Bilbo had retained
him as counsel and "that neither of the two options provided
w[ould] satisfactorily resolve the problem." He proposed that the
solution was "merely that the religious verbiage be removed from
1 The federal regulation allows for the alteration of the oath in
certain cases:
When a petitioner or applicant for naturalization, by
reason of religious training and belief (or individual
interpretation thereof), or for other reasons of good
conscience, cannot take the oath prescribed
. . . with the words "on oath" and "so help me God"
included, the words "and solemnly affirm" shall be
substituted for the words "on oath," the words "so
help me God" shall be deleted, and the oath shall be
taken in such modified form.
8 C.F.R. § 337.1(b).
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the oath, as the First Amendment mandates." Subsequently, Perrier-
Bilbo's attorney twice attempted to obtain an update on Perrier-
Bilbo's request. In May 2010, Director Haydon acknowledged the
correspondence, but pointed out that Perrier-Bilbo's lawyer had
not submitted a notice of appearance form and consequently, because
he was not authorized to respond on Perrier-Bilbo's behalf, the
response letter he had sent "d[id] not constitute a response to
the USCIS's notice of its intent to reopen" Perrier-Bilbo's
application for naturalization. USCIS therefore denied the
application as abandoned but noted that Perrier-Bilbo could file
a new application at any time.
After filing at least two notices of appearance and
unsuccessfully attempting to obtain a waiver of the application
fee, Perrier-Bilbo filed a second application for naturalization
and paid the corresponding $680 in fees in December 2014. USCIS
granted the application in August 2015. Perrier-Bilbo's
naturalization ceremony was ultimately scheduled for April 2017 at
the U.S. District Court for the District of Massachusetts. On the
day of the ceremony, Perrier-Bilbo tried to explain her objection
to the oath. When informed that she "d[id not] have to say
anything," she replied, "[i]f I participate, I feel I am violating
the Constitution I am supposed to support and defend." Perrier-
Bilbo was told she would not be sworn in that day and that she
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should speak with USCIS directly. That same day, both Perrier-
Bilbo and her lawyer spoke with an individual at the Boston USCIS
office.
In August 2017, USCIS sent a letter to Perrier-Bilbo
informing her that she was scheduled to participate in the upcoming
September 2017 naturalization ceremony. The letter also
acknowledged her request to "take an oath of allegiance modified
for religious or conscientious objections" and reiterated that the
two accommodations previously proposed were still available to
her, but that the district court administering the oath "w[ould]
not modify the oath of allegiance for the applicants who ha[d] not
requested such a modification." Perrier-Bilbo did not go to the
September 2017 naturalization ceremony.
B. Procedural History
On November 2, 2017, Perrier-Bilbo filed a complaint in
the U.S. District Court for the District of Massachusetts against
the Government.2 The complaint alleged that the inclusion of the
phrase "so help me God" in the naturalization oath as set forth in
8 C.F.R. § 337.1 violated (1) the Establishment Clause; (2) the
Free Exercise Clause; (3) the RFRA; (4) the equal protection
2 Perrier-Bilbo originally named the U.S. Congress as a party in
the district court matter, but voluntarily dismissed her claims
against it on May 8, 2018.
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component of the Fifth Amendment's Due Process Clause; and (5)
procedural due process under the Fifth Amendment's Due Process
Clause. Specifically, Perrier-Bilbo, who describes herself as "an
Atheist who specifically denies the existence of any 'God,'"
claimed that by adding "so help me God" to the end of the oath,
the United States "[was] asserting that God exists." According
to her, although the regulations allow for the oath to be altered,
she would still be violating her oath to "support and defend the
Constitution and the laws of the United States of America" because
those laws do not permit the government to make her an "outsider"
because of her religious beliefs or force her to use an alternative
oath. The complaint sought a declaration that keeping the phrase
"so help me God" in the naturalization oath violated the
above-mentioned constitutional provisions and statute. It also
requested the district court to permanently enjoin the Government
"from placing 'so help me God' in future naturalization oath
ceremonies" and to order the Government to reimburse Perrier-Bilbo
for the cost of her second naturalization application fees.
On February 22, 2018, the Government filed a motion to
dismiss the complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) for lack of standing and failure to state a
claim. The district court heard oral argument on the motion on
May 8, 2018. During the hearing, the court obtained the parties'
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consent to convert the motion to dismiss into cross-motions for
summary judgment, as it appeared to the court that it "ha[d] the
necessary facts" and "nothing[ was] in dispute." On September 28,
2018, the district court issued a memorandum and order granting
summary judgment for the Government. Perrier-Bilbo v. United
States, 346 F. Supp. 3d 211 (D. Mass. 2018). First, the district
court, while recognizing that the phrase "so help me God" had "some
religious content,"
id. at 221, rejected Perrier-Bilbo's
Establishment Clause claim, finding that "the use of the phrase
. . . or similar invocations in public oaths and statements is,
along with legislative prayer, a well-established tradition that
can be traced back to the nation's founding,"
id. at 219.
Moreover, the court noted that the Supreme Court has upheld "more
sectarian" "religious invocations" than the phrase at issue here,
id., and that the accommodations offered to Perrier-Bilbo were
"permissible, non-coercive alternatives,"
id. at 220. In
addition, it highlighted the "overwhelmingly consistent precedent
and dicta" upholding the constitutionality of similar practices.
Id.
The district court then turned to the Free Exercise
Clause challenge. Relying on Freedom From Religion Foundation v.
Hanover School District,
626 F.3d 1 (1st Cir. 2010),3 the court
3 In Freedom From Religion Foundation, we held that a New Hampshire
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found that "mere exposure" to the phrase "so help me God" would
not have a coercive effect on, or compel, Perrier-Bilbo to affirm
a religious belief she does not hold, especially when USCIS offered
two alternatives to avoid using the phrase. Perrier-Bilbo, 346
F. Supp. 3d at 221. The court further noted that even if
Perrier-Bilbo had not been offered a private ceremony, simply
remaining silent at the public ceremony would not amount to
Perrier-Bilbo agreeing with the phrase recited by her peers.
Id.
Furthermore, the court determined that the
naturalization oath comported with RFRA.
Id. at 222. To that
end, it found that because USCIS had offered Perrier-Bilbo two
alternatives to avoid reciting "so help me God," the Government
did not impose a "'substantial pressure' on her to violate her
beliefs."
Id. The court also noted that the mere inconvenience
that would result from Perrier-Bilbo either remaining silent
during the contested phrase or attending a private ceremony did
not rise to the level of a substantial burden on her religious
beliefs.
Id.
The district court similarly rejected Perrier-Bilbo's
claim that the naturalization oath violated the Fifth Amendment's
statute that required public schools to provide a period during
the school day when students could voluntarily recite the Pledge
of Allegiance passed the constitutional muster of the First and
Fourteenth
Amendments. 626 F.3d at 3—4.
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Due Process Clause or its equal protection component. Id. at 223.
Specifically, the court found that the oath did not treat any class
of people differently or give preferential treatment to any
religion, particularly in light of the regulation's provision that
allows for the alteration of the oath for those who do not wish to
say the words "so help me God."
Id. Finally, the court held
that, because Perrier-Bilbo did not identify a protected liberty
or property interest of which she had been deprived, her procedural
due process claim also failed.
Id. Accordingly, the court
granted summary judgment on all claims.
Id.
On October 29, 2018, Perrier-Bilbo filed a post-judgment
motion seeking the reimbursement of the $680 she paid for the
second naturalization form.4 She claimed that Director Haydon's
"arbitrary refusal" to inform her that her lawyer needed to submit
a notice of appearance -- despite having received multiple letters
from her lawyer -- followed by the denial of the first
naturalization application as abandoned amounted to a procedural
due process violation. Perrier-Bilbo attributed Director Haydon's
conduct to an "anti-Atheistic bias." The district court denied
the motion on October 30, 2018, noting that because the Government
4 Because the court had not ruled on this matter in either its
memorandum and order granting summary judgment or the entry of
that judgment, Perrier-Bilbo filed this motion pursuant to Federal
Rules of Civil Procedure 52(b) and/or 59(e).
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had "prevailed, there [was] no occasion for reimbursement."
Perrier-Bilbo filed a timely appeal of this denial and the grant
of summary judgment.
II. Discussion
A. Granting of Summary Judgment
We review a district court's grant of summary judgment
de novo, construing the record in the light most favorable to the
nonmovant and resolving all reasonable inferences in that party's
favor. Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st
Cir. 2015); Mesnick v. Gen. Elec. Co.,
950 F.2d 816, 822 (1st Cir.
1991) (quoting Griggs-Ryan v. Smith,
904 F.2d 112, 115 (1st Cir.
1990)). This standard of review remains "unaltered when an appeal
emerges from cross-motions for summary judgment." Doe v. Trs. of
Bos. Coll.,
892 F.3d 67, 79 (1st Cir. 2018) (citing Roman Catholic
Bishop of Springfield v. City of Springfield,
724 F.3d 78, 89 (1st
Cir. 2013)). Considering each motion separately, we make "all
reasonable inferences in favor of the respective non-moving
party." City of
Springfield, 724 F.3d at 89. When, as here, the
facts are undisputed, the court simply must determine whether one
of the parties is entitled to judgment as a matter of law based on
those facts. Littlefield v. Acadia Ins. Co.,
392 F.3d 1, 6 (1st
Cir. 2004) (quoting Barnes v. Fleet Nat'l Bank, N.A.,
370 F.3d
164, 170 (1st Cir. 2004)).
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1. Establishment Clause Claim
The First Amendment provides, in relevant part, that
"Congress shall make no law respecting an establishment of
religion." U.S. Const. amend. I. Supreme Court precedent
recognizes that "[t]he clearest command of the Establishment
Clause is that one religious denomination cannot be officially
preferred over another," Trump v. Hawaii, 138 S. Ct. 2392, 2417
(2018) (alteration in original) (quoting Larson v. Valente,
456
U.S. 228, 244 (1982)), nor can the government prefer religion over
nonreligion, see Marrero-Méndez v. Calixto-Rodríguez,
830 F.3d 38,
44 (1st Cir. 2016) ("As conceived, the organizing principle of the
Establishment Clause is 'governmental neutrality' -- between
'religion and nonreligion,' as well as among religions." (quoting
McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S.
844, 860 (2005))). "The Establishment Clause, at the very least,
prohibits government from appearing to take a position on questions
of religious belief or from 'making adherence to a religion
relevant in any way to a person's standing in the political
community.'" Cty. of Allegheny v. Am. Civil Liberties Union
Greater Pittsburgh Chapter,
492 U.S. 573, 593–94 (1989) (quoting
Lynch v. Donnelly,
465 U.S. 668, 687 (1984) (O'Connor, J.,
concurring)).
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In evaluating the Establishment Clause challenge, the
district court looked to the historical and traditional practice
of using phrases like "so help me God" in public oaths and
statements to uphold the constitutionality of the phrase in the
naturalization oath. Perrier-Bilbo argues that whether the use
of the phrase is rooted in history and tradition is not a
legitimate way to assess if the oath in its current form is
constitutional. Supreme Court Establishment Clause jurisprudence,
however, supports the district court's analysis of the challenge
by reference to historical practices and understanding.
Individual Justices have hinted that history plays a
significant role in interpreting the Establishment Clause and
determining whether a challenged action complies with it. See,
e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 26–29
(2004) (Rehnquist, C.J., concurring in judgment) (discussing
various "patriotic invocations of God and official acknowledgments
of religion's role" throughout the United States' history);
id. at
37 (O'Connor, J., concurring) ("[I]n examining whether a given
practice constitutes an instance of ceremonial deism, its 'history
and ubiquity' will be of great importance."); Cty. of Allegheny,
492 U.S. at 670 (Kennedy, J., concurring in judgment in part and
dissenting in part) ("[T]he meaning of the [Establishment] Clause
is to be determined by reference to historical practices and
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understandings."). Similarly, in Marsh v. Chambers, the Supreme
Court, tasked with assessing the constitutionality of a state's
practice of beginning a legislative session with a prayer,
acknowledged that "[t]he opening of sessions of legislative and
other deliberative public bodies with prayer is deeply embedded in
the history and tradition of this country," and proceeded to
summarize some of that history. 463 U.S. 783, 786–89 (1983).
Although the Marsh Court held that historical patterns alone were
insufficient to justify contemporary violations of the
Establishment Clause, it found "far more" than mere historical
patterns present in that case, noting the "unique history" that
spoke to the intent of those who drafted the Establishment Clause,
which led the Court to ultimately uphold the prayer practice.
Id.
at 790–91.
Recent developments in Establishment Clause
jurisprudence, however, suggest that the mere presence of a
historical pattern now carries more weight. In Town of Greece v.
Galloway, the Supreme Court stated that "the Establishment Clause
must be interpreted 'by reference to historical practices and
understandings.'" 572 U.S. 565, 576 (2014) (quoting Cty. of
Allegheny, 492 U.S. at 670 (Kennedy, J., concurring in judgment in
part and dissenting in part)). The Supreme Court found it
unnecessary to "define the precise boundary of the Establishment
-15-
Clause where history shows that the specific practice is
permitted." Id. at 577. It upheld a town's practice of holding
a nondiscriminatory prayer before a town council meeting, finding
that it "fi[t] within the tradition long followed in Congress and
the state legislatures."5
Id.
Most recently in American Legion v. American Humanist
Association, the Supreme Court assessed an Establishment Clause
challenge using a framework that looked to longstanding historical
practices and significance.
139 S. Ct. 2067, 2074 (2019) (holding
that "the adoption of the cross as [a] memorial must be viewed in
[its] historical context"). The American Legion Court had to
decide whether the Bladensburg Peace Cross -- a
thirty-two-foot-tall Latin cross erected in 1925 as a World War I
memorial, located on public land, and maintained by public
funds -- violated the Establishment Clause.
Id. at 2074, 2077.
Relying entirely on a thorough analysis of the cross as a
historical symbol (and of the erection of the Bladensburg Cross in
5 Perrier-Bilbo unconvincingly avers that Town of Greece is
inapposite to her case and faults the district court for relying
on it. However, not only did the district court rely primarily
on Town of Greece for fairly broad propositions of law that
transcend Perrier-Bilbo's attempts to distinguish her case, but
the two cases are in fact quite similar. In both cases, the
non-adherent plaintiffs were not forced to participate in the
contested practice because they could opt out, and they could not
allege more than mere exposure to the language at issue.
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particular), it concluded that the monument complied with the
Establishment Clause. Id. at 2085-90. The Court reasoned that
the cross, though a symbol of Christianity, had taken on a secular
meaning in many contexts,
id. at 2074, and that many Americans
during and immediately after World War I came to associate the
image of a simple white cross with memorializing those who died in
the war,
id. at 2075–76. Thus, "the image used in the Bladensburg
memorial . . . also took on new meaning after World War I."
Id.
at 2075. Similarly, the Court found that the cross had, "with the
passage of time," "acquired historical importance."
Id. at 2089.
Ultimately, it concluded that, even though the cross is
"undoubtedly a Christian symbol," "that fact should not blind us
to everything else that the Bladensburg Cross has come to
represent."
Id. at 2090.
The American Legion Court also explicitly rejected the
application of the three-pronged test pronounced in Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971) (requiring that a law "have
a secular legislative purpose," that its "principal . . . effect
. . . be one that neither advances nor inhibits religion," and
that it does not "foster 'an excessive government entanglement
with religion,'" (citations omitted)), to evaluate Establishment
Clause challenges in cases involving "the use, for ceremonial,
celebratory, or commemorative purposes, of words or symbols with
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religious associations" and "certain references to, and
invocations of, the Deity in the public words of public officials
[and] the public references to God on coins, decrees, and
buildings."6 Id. at 2080–81. Rather, the Supreme Court adopted
"a presumption of constitutionality" for religiously expressive
"longstanding monuments, symbols, and practices."
Id. at 2082.
In reaching that holding, it provided four reasons why the
application of a presumption of constitutionality was better
suited for these situations than the Lemon test: (1) when
6 This departure from the Lemon test is not inconsistent with how
the Supreme Court has evaluated Establishment Clause cases in the
past using a variety of measures and frameworks, recognizing that
the framework must suit the facts of the case. See Salazar v.
Buono,
559 U.S. 700, 721 (2010) (noting that an Establishment
Clause challenge should be "assessed in the context of all relevant
factors"); Lee v. Weisman,
505 U.S. 577, 597 (1992) ("Our
Establishment Clause jurisprudence remains a delicate and
fact-sensitive one."); Newdow v. Roberts, 603 F.3d 1002, 1017 (D.C.
Cir. 2010) (Kavanaugh, J., concurring in judgment) ("[T]he Supreme
Court's Establishment Clause jurisprudence does not set forth a
one-size-fits-all test. Rather, the Court ordinarily analyzes
cases under various issue-specific rules and standards it has
devised." (internal citations omitted)). Notably, the Supreme
Court has held that the Lemon factors were "no more than helpful
signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973), and it has
"either expressly declined to apply the test or has simply ignored
it" in several cases, Am.
Legion, 139 S. Ct. at 2080 (compiling
cases); see also Van Orden v. Perry,
545 U.S. 677, 686 (2005)
("Many of [the Supreme Court's] recent cases simply have not
applied the Lemon test." (citing Zelman v. Simmons-Harris, 536
U.S. 639 (2002) and Good News Club v. Milford Cent. Sch.,
533 U.S.
98 (2001))). Indeed, the American Legion Court expressed that the
Supreme Court has "taken a more modest approach that focuses on
the particular issue at hand and looks to history for guidance."
Am.
Legion, 139 S. Ct. at 2087.
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monuments, symbols, or practices were originally established long
ago, "identifying their original purpose or purposes may be
especially difficult"; (2) with the passage of time, "the purposes
associated with an established monument, symbol, or practice" and
the reasons for maintaining them "often multiply"; (3) the message
conveyed by the monument, symbol, or practice may evolve over time
and "[t]he community may come to value them without necessarily
embracing their religious roots"; and (4) when the monument,
symbol, or practice has become familiar and of historical
significance, "removing it may no longer appear neutral" but
"aggressively hostile to religion." Id. at 2081–85. Finally,
the Supreme Court suggested that the presumption could be overcome
by a showing of discriminatory intent in the decision to maintain
the challenged practice or by a showing of "deliberate[]
disrespect[]" by that practice on the basis of religion. See
id.
at 2074, 2089.
We follow the Supreme Court's most recent framework and
apply American Legion's presumption of constitutionality to the
phrase "so help me God" in the naturalization oath because we
consider the inclusion of similar words to be a ceremonial,
longstanding practice as an optional means of completing an oath.7
7 We have evaluated Establishment Clause challenges under three
analytical approaches espoused by the Supreme Court: (1) the
three-pronged Lemon test already described; (2) the "endorsement"
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And because the record does not demonstrate a discriminatory intent
in maintaining those words in the oath or "deliberate disrespect"
by the inclusion of the words, Perrier-Bilbo cannot overcome the
presumption.8
In American Legion, the Supreme Court held that the
presumption of constitutionality applies to "established,
religiously expressive monuments, symbols, and practices." Id.
at 2085. As the district court recognized, there is an established
history of invocations of God in public oaths and statements
tracing back to the founding era. See Elk Grove Unified Sch.
analysis fashioned in Justice O'Connor's concurrence in Lynch v.
Donnelly, 465 U.S. at 688, which instructs the courts to determine
whether the challenged action "has the effect of endorsing or
disapproving religious beliefs," Cty. of
Allegheny, 492 U.S. at
597; and (3) the coercion analysis employed in Lee v. Weisman,
where the Supreme Court held that "the Constitution guarantees
that government may not coerce anyone to support or participate in
religion or its
exercise," 505 U.S. at 587. See Freedom From
Religion
Found., 626 F.3d at 7 (outlining the three analytical
approaches in Establishment Clause challenges). But none of these
analytical approaches apply in the case at hand because, as we
find today, it is more properly analyzed through the American
Legion lens.
8 Our reasoning permissibly differs from that of the district
court, whose opinion pre-dated the Supreme Court's holding in
American Legion. When reviewing de novo, "[w]e are at liberty to
affirm a district court's judgment on any ground made manifest by
the record, whether or not that particular ground was raised
below." United States v. George,
886 F.3d 31, 39 (1st Cir. 2018)
(citing United States v. Zorrilla-Echevarría,
723 F.3d 298, 300
(1st Cir. 2013)). We also note that American Legion post-dated
the briefing in this case and therefore, the parties' briefs do
not discuss how that case might apply.
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Dist., 542 U.S. at 26-29 (Rehnquist, C.J., concurring in judgment)
(listing examples of "patriotic invocations of God and official
acknowledgements of religion's role in our Nation's history,"
including in presidential speeches, statements, and
proclamations); Newdow v. Roberts,
603 F.3d 1002, 1018 (D.C. Cir.
2010) (Kavanaugh, J., concurring in judgment) (noting that the
"use of 'so help me God' in oaths for government officials is
deeply rooted in the Nation's history and tradition" and observing
that "[s]tate constitutions in effect at the ratification of the
First Amendment similarly included 'so help me God' in state
officials' oaths of office," and those words "remain to this day
a part of oaths prescribed by law at the federal and state
levels"). Applicants for naturalization have taken an oath of
allegiance since the first naturalization law in 1790, and the
oath's language, first standardized by regulation in 1929,
included the phrase "so help me God."9 That language has been
included as an option at least since 1957. See Oath of Allegiance,
22 Fed. Reg. 9,765, 9,824 (Dec. 6, 1957). Thus, we can conclude
that the inclusion of the phrase "so help me God" in the
9 Naturalization Oath of Allegiance to the United States of
America: History, U.S. Citizenship and Immigration Servs.,
https://www.uscis.gov/us-citizenship/naturalization-
test/naturalization-oath-allegiance-united-states-america (last
updated June 25, 2014) (last accessed Mar. 20, 2020).
-21-
naturalization oath as an option and its recital as an exercise of
that option should be considered an established practice.
Furthermore, the words "so help me God" in the oath are
religiously expressive. We have acknowledged before that the
phrase "under God" has "some religious content" that cannot be
"deplete[d]" by the simple act of repetition of the phrase in
secular ceremonies. Freedom From Religion Found., 626 F.3d at 7.
In Freedom From Religion Foundation, we recognized that "[a] belief
in God is a religious belief," and the phrase "under God" had
religious content because "those who are religious, as well as
those who are not, could reasonably be offended by the claim that"
the phrase lacked religious content.
Id. (citing Myers v. Loudoun
Cty. Pub. Sch.,
418 F.3d 395, 407 (4th Cir. 2005)). Following
that reasoning, the phrase "so help me God" at issue here certainly
is religiously expressive too. This, however, does not mean the
religiously expressive phrase cannot also pass Establishment
Clause muster. See
id. at 7-8 ("That the phrase 'under God' has
some religious content, however, is not determinative of [a
challenged statute's] constitutionality. This is in part because
the Constitution does not 'require complete separation of church
and state.'" (quoting Lynch, 465 U.S. at 673)); see also Van Orden
v. Perry,
545 U.S. 677, 690 (2005) (holding that "[s]imply having
religious content or promoting a message consistent with a
-22-
religious doctrine does not run afoul of the Establishment Clause"
(citing Lynch, 465 U.S. at 680, 687)).
Because the inclusion of the religiously expressive
phrase "so help me God" in the naturalization oath as an option
for completing it follows the pattern of an established practice,
we conclude that it triggers the "strong presumption of
constitutionality." Am. Legion, 139 S. Ct. at 2085.
Moreover, this case satisfies each of the four
justifications for applying the presumption laid out in American
Legion.10 First, aspiring United States citizens have recited the
naturalization oath with the words "so help me God" for at least
ninety years, but we cannot pinpoint the specific reason for the
inclusion of the phrase. Perhaps it was to mirror other official
oaths, like those for government officials, or perhaps the
inclusion of the phrase as an option would appear to follow in the
tradition of "recogni[zing] . . . the important role that religion
plays in the lives of many Americans." Id. at 2089. Nevertheless,
discerning the original purpose here presents the kind of
difficulty American Legion contemplated.
10 We do not read American Legion to require that the four
justifications be met in every case. They merely "counsel" toward
application of the presumption. See
id. at 2081–82.
-23-
The second and third justifications are also present
here where the purpose of including and maintaining the phrase "so
help me God" as an option in the oath for nearly a century, and
the message conveyed by its recitation, have likely multiplied and
evolved over time. See id. at 2082–84. "Even if the original
purpose of [the phrase] was infused with religion, the passage of
time may obscure that sentiment."
Id. at 2083. Different people
may have different reasons for wanting to preserve the phrase in
the oath. Just as the words might not mean anything to some
people, others "may come to value them without necessarily
embracing their religious roots,"
id. at 2084, and others yet might
read them as acknowledging "the centrality of faith" in their
lives,
id. at 2086. See Elk Grove Unified Sch.
Dist., 542 U.S.
at 26 (Rehnquist, C.J., concurring in judgment) ("To the millions
of people who regularly recite the Pledge, . . . 'under God' might
mean several different things . . . . How much consideration
anyone gives to the phrase probably varies, since the Pledge itself
is a patriotic observance focused primarily on the flag and the
Nation, and only secondarily on the description of the Nation.").
It is also important to note that the phrase "so help me God" only
makes up four words out of the 140-word oath, and American Legion
instructs that we must view the challenged practice and consider
the overall message conveyed by it against the context in which it
-24-
appears. Am. Legion, 139 S. Ct. at 2074-78. The existence of
multiple purposes and meanings for the phrase within the oath is
further highlighted by the fact that the regulations allow for the
alteration of the oath for those who do not wish to say the disputed
phrase. See 8 C.F.R. § 337.1(b). Thus, as in American Legion,
despite the inclusion of a religiously expressive phrase in the
oath, its repetition for the past ninety years, coupled with the
ability to alter the oath, shows that the practice of permitting
the religious phrase to be used to complete the oath has a secular
end, and society may have preserved the practice "for the sake of
[its] historical significance or [its] place in a common cultural
heritage." Am.
Legion, 139 S. Ct. at 2083.
Finally, just as the American Legion Court suggested,
requiring the removal of the phrase "so help me God" from the
naturalization oath may "strike many as aggressively hostile to
religion," id. at 2085, and that lack of neutrality would not
comport with the Establishment Clause, see Van
Orden, 545 U.S. at
683–84 (noting that we should "neither abdicate our responsibility
to maintain a division between church and state nor evince a
hostility to religion by disabling the government from in some
ways recognizing our religious heritage"). As we already noted,
the phrase "so help me God" in the naturalization oath fits within
the tradition of ceremonial references to God as an optional means
-25-
of completing an oath. Furthermore, the oath has seemingly gone
unchallenged on the ground that it includes the objectionable
phrase. This suggests that "few individuals . . . are likely to
have understood [the inclusion of "so help me God" in the
naturalization oath] as amounting . . . to a government effort to
favor a particular religious sect [or] to promote religion over
nonreligion." Id. at 702 (Breyer, J., concurring in judgment).
Thus, by removing the language we "may no longer appear neutral,"
Am.
Legion, 139 S. Ct. at 2084, and we may even encourage future
disputes over similar longstanding language in practices across
the United States, see Van
Orden, 545 U.S. at 704 (Breyer, J.,
concurring in judgment).
Having established that all four considerations are
present in this case, we are confident that it fits squarely within
the American Legion framework and that the presumption of
constitutionality applies. Thus, we turn to the record to
determine whether Perrier-Bilbo can overcome the presumption.
After careful review, we believe she is unable to do so.
We cannot discern any discriminatory intent in the
decision to maintain the phrase "so help me God" in the
naturalization oath, or, alternatively, a "deliberate[]
disrespect[]" by the recitation of the oath on the basis of
religion. See Am. Legion, 139 S. Ct. at 2074, 2089. To challenge
-26-
the district court's opinion, Perrier-Bilbo offered: (1) a single
webpage challenging the validity of the proposition that George
Washington actually spoke the phrase "so help me God" when taking
his first oath of office; (2) evidence about the general intent of
the Framers to keep Church and State separate; and (3) a claim
that the nation's first statute "involved the affirmative removal
of the two references to God in the oath" taken by members of
Congress. Undermining a single source of historical evidence,
however, does not negate the existence of an otherwise credible
historical pattern; nor does offering evidence that speaks against
the inclusion of the language in one particular oath, or other
general evidence about the importance of separation of Church and
State. Perrier-Bilbo also makes the conclusory assertion that the
phrase "so help me God" is "facially religiously discriminatory"
and "a purely religious phrase inserted by Monotheistic
Supremacists because it makes them feel good to have the government
advocate for their religious ideals." But she presents no
evidence to suggest that the Government has retained the phrase in
the oath for any discriminatory reasons or that the oath
deliberately disrespects individuals based on religion, especially
in light of the fact that the oath can be modified for those who
oppose reciting the phrase "so help me God."
-27-
Ultimately, the record does not demonstrate
discriminatory intent or deliberate disrespect by the inclusion
and recitation of "so help me God" in the naturalization oath, and
Perrier-Bilbo cannot overcome American Legion's presumption of
constitutionality. Accordingly, we hold that, under the most
recent framework used to evaluate whether established practices
with religious content violate the Establishment Clause, the
phrase "so help me God" in the naturalization oath as a means of
completing that oath does not violate the Constitution. We find,
in turn, that the district court correctly dismissed
Perrier-Bilbo's Establishment Clause claim.
2. Free Exercise Claim
We now consider whether the phrase "so help me God" in
the oath violates the Free Exercise Clause of the First Amendment.
The Free Exercise Clause guarantees that "Congress shall make no
law . . . prohibiting the free exercise [of religion]." U.S.
Const. amend. I. The Free Exercise Clause prohibits the
government from "(1) compel[ling] affirmation of religious
beliefs; (2) punish[ing] the expression of religious doctrines it
believes to be false; (3) impos[ing] special disabilities on the
basis of religious views or religious status; or (4) lend[ing] its
power to one side or the other in controversies over religious
authorities or dogma." Freedom From Religion Found., 626 F.3d at
-28-
14 (quoting Parker v. Hurley, 514 F.3d 87, 103 (1st Cir. 2008)).11
A plaintiff alleging a Free Exercise violation must show that a
government action has a coercive effect on her religious practice.
Parker, 514 F.3d at 103 (quoting Sch. Dist. of Abington Twp. v.
Schempp,
374 U.S. 203, 223 (1963)).
Perrier-Bilbo first faults the district court for
relying on Parker v. Hurley12 because, according to her, that case
applies to "generally applicable, religion-neutral laws," and here
the phrase "so help me God" is a religious phrase espousing a
"particular religious view." She contends that strict scrutiny
should apply instead. But her argument is unavailing because the
practice of permitting the naturalization oath to be completed
with religious language, as we indicated above, is indeed neutral
as a whole and of general applicability, and such laws "need not
be justified by a compelling governmental interest even if the law
has the incidental effect of burdening a particular religious
practice." Church of the Lukumi Babalu Aye, Inc. v. City of
11 We refer to these prohibitions as the "Parker prohibitions."
12 514 F.3d 87 (1st Cir. 2008) (affirming dismissal of lawsuit
brought by parents against a school system claiming that an
elementary school violated their constitutional rights by exposing
their children to books portraying different kinds of families,
including same-sex couples).
-29-
Hialeah, 508 U.S. 520, 531 (1993) (citing Emp't Div., Dep't of
Human Res. of Or. v. Smith,
494 U.S. 872, 883 (1990)).
A law that "infringe[s] upon or restrict[s] practices
because of their religious motivation" or "refers to a religious
practice without a secular meaning discernable from the language
or context" is not a neutral law. Id. at 533 (citing
Smith, 494
U.S. at 878-79). While the phrase "so help me God" has a religious
connotation, there is no evidence that it was included as an option
in the oath to target or suppress religious beliefs. Nor can we
discern that this option creates any "covert suppression of
particular religious beliefs,"
id. at 534 (quoting Bowen v. Roy,
476 U.S. 693, 703 (1986)), especially given the available
accommodations. Because we find that the oath is neutral and of
general applicability, we conclude that the district court did not
err in relying on Parker, as that case sets forth the applicable
framework to evaluate the free exercise claim.
We agree with the district court that Perrier-Bilbo's
free exercise claim fails because she has not demonstrated that
the Government has coerced her into violating or changing her
religious beliefs or practices. We also find that none of the
prohibitions set forth in Parker are of concern in this case.13
13 Perrier-Bilbo concedes that the second Parker prohibition --
that the government may not "punish the expression of religious
doctrines it believes to be false," Parker, 514 F.3d at 103 -- is
-30-
To begin, the Government has not imposed a requirement that
Perrier-Bilbo "agree with or affirm" the phrase "so help me God."
Freedom From Religion Found., 626 F.3d at 14 (quoting
Parker, 514
F.3d at 106). Nor does she develop an argument to the contrary
that accounts for the option of remaining silent. Nevertheless,
Perrier-Bilbo argues that she would still be compelled to affirm
a religious belief she does not share if she were to take part in
an oath ceremony where the phrase is used by others. Mere exposure
to different religious ideas, however, does not prevent
Perrier-Bilbo from ascribing to or pursuing her own beliefs. See
Town of
Greece, 572 U.S. at 590 ("But in the general course
legislative bodies do not engage in impermissible coercion merely
by exposing constituents to prayer they would rather not hear and
in which they need not participate." (citing Cty. of Allegheny,
492 U.S. at 670 (Kennedy, J., concurring in judgment in part and
dissenting in part))); see also Freedom From Religion
Found., 626
F.3d at 14 ("Because the Doe children allege mere exposure to the
religious content of the Pledge, they cannot state a claim under
the Free Exercise Clause, nor can their parents, as 'the mere fact
that a child is exposed on occasion . . . to a concept offensive
to a parent's religious belief does not inhibit the parent from
not relevant to this case.
-31-
instructing the child differently.'" (quoting Parker, 514 F.3d at
105)). Thus, Perrier-Bilbo cannot establish a free exercise
violation arising out of her exposure to other soon-to-be-
citizens' recital of the naturalization oath containing the phrase
to which she personally objects.
Additionally, Perrier-Bilbo argues that the Government
"has imposed the special disability that keeps her from being an
equal in the naturalization oath ceremony" because of her beliefs.
But the reason Perrier-Bilbo has not yet secured citizenship is
because of her demand that the Government modify the ceremony for
everyone else -- including for those who have not requested this
modification -- so that she can adhere to her own beliefs. The
Government is not required to further Perrier-Bilbo's spiritual
development or conform to her religious beliefs. See Bowen, 476
U.S. at 699 ("The Free Exercise Clause simply cannot be understood
to require the [g]overnment to conduct its own internal affairs in
ways that comport with the religious beliefs of particular
citizens.").
Perrier-Bilbo also contends that the Government has
violated the last Parker prohibition by "lending its power to the
side that believes that God exists." But having found that the
oath complies with the Establishment Clause, her claim that the
-32-
inclusion of the phrase "so help me God" signifies governmental
favoritism of theism is unpersuasive.
Finally, while Perrier-Bilbo acknowledges that she does
not have to utter the words "so help me God," she still finds that
her religious beliefs are disrespected if she participates in a
ceremony in which others recite the phrase. We do not second-guess
the sincerity of Perrier-Bilbo's beliefs or her feeling of distress
upon hearing the phrase at issue. But even if the phrase offends
her, offense "does not equate to coercion," Town of Greece, 572
U.S. at 589, and the Free Exercise Clause does not entitle her to
a change in the oath's language as it pertains to others, see Elk
Grove Unified Sch.
Dist., 542 U.S. at 44 (O'Connor, J., concurring)
("[T]he Constitution does not guarantee citizens a right entirely
to avoid ideas with which they disagree."); see also Bowen, 476
U.S. at 700 ("[T]he Free Exercise Clause is written in terms of
what the government cannot do to the individual, not in terms of
what the individual can extract from the government." (alteration
in original) (quoting Sherbert v. Verner, 374 U.S. 398, 412 (1963)
(Douglas, J., concurring))). Accordingly, her free exercise claim
fails.
3. The Religious Freedom Restoration Act Claim
We now turn to whether the inclusion of the phrase "so
help me God" in the naturalization oath violates RFRA.
-33-
Perrier-Bilbo contends that RFRA provides greater protection than
the Free Exercise Clause of the First Amendment. Under this
broader protection, Perrier-Bilbo believes that we must
acknowledge her sincere belief in atheism and find that the
Government's inclusion of the phrase "so help me God" in the
naturalization oath has forced her to choose between beginning her
citizenship "as an equal among her co-participants at the price of
violating her sincerely held religious beliefs" and "freely
exercising her religious beliefs at the price of sacrificing the
ability to start off her American citizenship . . . as an equal
among her co-participants." She argues that the inclusion of that
phrase "substantially burdens her free religious exercise."
RFRA, as Perrier-Bilbo appropriately contends, offers
"very broad protection for religious liberty." Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682, 693 (2014). It prohibits the
government from "substantially burden[ing] a person's exercise of
religion even if the burden results from a rule of general
applicability," unless the government "demonstrates that
application of the burden to the person (1) is in furtherance of
a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental
interest." 42 U.S.C. § 2000bb-1(a)-(b). A plaintiff alleging a
RFRA claim has the initial burden of establishing a prima facie
-34-
case by showing that the application of the challenged law
substantially burdens a sincere religious exercise. See Gonzales
v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,
428 (2006). While "substantial burden" is not defined in RFRA,
case law counsels that a substantial burden on one's exercise of
religion exists "[w]here the state conditions receipt of an
important benefit upon conduct proscribed by a religious faith, or
where it denies such a benefit because of conduct mandated by
religious belief, thereby putting substantial pressure on an
adherent to modify his behavior and to violate his beliefs."
Thomas v. Review Bd. of Ind. Emp't Sec. Div.,
450 U.S. 707, 717-18
(1981); see also Navajo Nation v. U.S. Forest Serv.,
535 F.3d 1058,
1069–70 (9th Cir. 2008) ("Under RFRA, a 'substantial burden' is
imposed only when individuals are forced to choose between
following the tenets of their religion and receiving a governmental
benefit . . . or [are] coerced to act contrary to their religious
beliefs by the threat of civil or criminal sanctions.").
The district court found that, in light of the two
options afforded to Perrier-Bilbo to avoid the phrase, the
Government has not put "substantial pressure" on her to violate
her sincere beliefs in order to naturalize. And Perrier-Bilbo's
argument that she was forced or pressured to choose between
following the tenets of her religion and receiving the benefit of
-35-
naturalization fails to account for the option she was given of
remaining silent because she can naturalize without saying the
phrase that violates her religious beliefs, or even without hearing
it spoken if she naturalizes in a private ceremony. Nor does she
argue that she is being penalized for practicing her religious
beliefs. The Government has provided her with options so that she
can adhere to her religious beliefs while still taking the
naturalization oath, be it with the rest of the prospective
citizens or in a private ceremony. The Government has only stopped
Perrier-Bilbo from imposing her religious mandates on others. See
Navajo Nation, 535 F.3d at 1063-64 (describing as problematic the
idea that, without a "substantial burden," RFRA would give each
citizen an individual veto when a practice offended his religious
beliefs or sensibilities, despite depriving others of a
governmental benefit).
While she might find the options offered by the
Government subjectively burdensome, however, the district court
was right to conclude that not every imposition or inconvenience
rises to the level of a "substantial burden." See Gary S. v.
Manchester Sch. Dist., 374 F.3d 15, 21-22 (1st Cir. 2004) (finding
that a government program imposed no cognizable burden for the
purposes of RFRA despite the plaintiffs' belief that such program
violated their free exercise rights); New Doe Child #1 v. United
-36-
States, 901 F.3d 1015, 1026-27 (8th Cir. 2018) (finding that "not
all burdens constitute substantial burdens" and "mere
inconvenience" does not always amount to a substantial burden);
New Doe Child #1 v. Congress of U.S.,
891 F.3d 578, 590 (6th Cir.
2018) (finding that a substantial burden must be "more than a 'mere
inconvenience'"); Worldwide Church of God v. Phila. Church of God,
Inc.,
227 F.3d 1110, 1121 (9th Cir. 2000) (same). Because we find
that Perrier-Bilbo failed to establish that the Government imposed
a substantial burden on her exercise of religion, our RFRA analysis
ends here.
4. Equal Protection Under the Fifth Amendment Claim
"The liberty protected by the Fifth Amendment's Due
Process Clause contains within it the prohibition against denying
to any person the equal protection of the laws." United States
v. Windsor, 570 U.S. 744, 774 (2013). That Clause prohibits the
government from "invidiously discriminating between individuals or
groups." Washington v. Davis,
426 U.S. 229, 239 (1976) (citing
Bolling v. Sharpe,
347 U.S. 497 (1954)). To establish an equal
protection claim, a plaintiff must show that, "compared with others
similarly situated, the plaintiff was treated differently because
of an improper consideration, such as his religion."14 Kuperman
14 We evaluate Fifth Amendment equal protection claims under the
same standards as equal protection claims under the Fourteenth
Amendment. Adarand Constructors, Inc. v. Pena,
515 U.S. 200,
-37-
v. Wrenn, 645 F.3d 69, 77–78 (1st Cir. 2011) (citing Tapalian v.
Tusino,
377 F.3d 1, 5 (1st Cir. 2004)).
Invoking the Fifth Amendment's equal protection
guarantees, Perrier-Bilbo asserts that offering her a separate,
private ceremony in which the oath would not contain the phrase
"so help me God" violates the principle that "separate . . .
facilities are inherently unequal." She equates the accommodations
the Government offered her to the segregation policies at issue in
Plessy v. Ferguson, 163 U.S. 537 (1896), and those struck down in
Brown v. Board of Education,
347 U.S. 483 (1954).
Despite her efforts, Perrier-Bilbo fails to show that,
based on her religion, she was treated differently from other
similarly situated prospective citizens with regards to the
recital of the naturalization oath. Indeed, the regulation
providing the language of the oath does not "'require different
treatment of any class of people because of their religious
beliefs,' nor does it 'give preferential treatment to any
217-18 (1995); see also United States v. Paradise, 480 U.S. 149,
166 n.16 (1987) (noting that "the reach of the equal protection
guarantee of the Fifth Amendment is coextensive with that of the
Fourteenth"); Buckley v. Valeo,
424 U.S. 1, 93 (1976) ("Equal
protection analysis in the Fifth Amendment area is the same as
that under the Fourteenth Amendment."); Weinberger v. Wiesenfeld,
420 U.S. 636, 638 n.2 (1975) ("[The Supreme Court's] approach to
Fifth Amendment equal protection claims has always been precisely
the same as to equal protection claims under the Fourteenth
Amendment.").
-38-
particular religion.'" Freedom From Religion Found., 626 F.3d at
14 (quoting Wirzburger v. Galvin,
412 F.3d 271, 283 (1st Cir.
2005)). Rather, as the district court correctly reasoned, the
fact that the phrase "so help me God" makes up part of the oath
does not take away from the fact that the regulation "applies
equally to those who believe in God, those who do not, and those
who do not have a belief either way, giving adherents of all
persuasions the right to participate or not participate" in
reciting the naturalization oath.
Perrier-Bilbo, 346 F. Supp. 3d
at 223 (quoting Freedom From Religion
Found., 626 F.3d at 14).
The regulation requires all applicants for citizenship, regardless
of their religious beliefs, to take the oath. The provision
allowing applicants that do not wish to say the phrase "so help me
God" for religious or other reasons to modify the language of the
oath, see 8 C.F.R. § 337.1(b), further proves that the regulation
applies equally to all applicants.
Moreover, Perrier-Bilbo's comparison of the
accommodation of a separate, private naturalization ceremony to
the kind of segregation policies at issue in Plessy and Brown is
inapposite. Unlike those invidious segregation policies and the
relegation of black people to separate facilities, designed to
keep individuals of different races apart from one another, the
private ceremony offered to Perrier-Bilbo was proposed as an
-39-
accommodation for her religious beliefs, after she expressed that
she could not recite the phrase "so help me God" and did not want
others around her to recite it either. The Government is not
attempting to segregate her in any way. She is still welcome to
attend the public ceremony from which she claims she is excluded
and to refrain from speaking, or even engaging with, the phrase
her beliefs proscribe.
In sum, because the regulation does not "create[]
different rules for distinct groups of individuals based on a
suspect classification," Wirzburger, 412 F.3d at 283,
Perrier-Bilbo's equal protection claim fails.
5. Fifth Amendment's Due Process Clause Claim
Next, invoking the Fifth Amendment's Due Process Clause,
Perrier-Bilbo argues that she "has a protected liberty interest in
not having the law exclude her from the oath ceremony of her choice
on the basis of her religious belief." The district court found
below that Perrier-Bilbo had failed to establish a procedural due
process claim. We agree.
Procedural due process guarantees that "before a
significant deprivation of liberty or property takes place at the
state's hands, the affected individual must be forewarned and
afforded an opportunity to be heard 'at a meaningful time and in
a meaningful manner.'" González-Droz v. González-Colón, 660 F.3d
-40-
1, 13 (1st Cir. 2011) (quoting Amsden v. Moran, 904 F.2d 748, 753
(1st Cir. 1990)). "To state a valid procedural due process claim,
a plaintiff must (1) 'identify a protected liberty or property
interest,' and (2) 'allege that the defendants . . . deprived
[her] of that interest without constitutionally adequate
process.'" Air Sunshine, Inc. v. Carl,
663 F.3d 27, 34 (1st Cir.
2011) (quoting
González-Droz, 660 F.3d at 13).
Perrier-Bilbo fails to identify a protected "liberty
interest" at issue here.15 We have not found, and Perrier-Bilbo
does not cite, any case law that would entitle her to relief based
on her alleged exclusion from the oath ceremony of her choice.
While the Supreme Court has not clearly defined "liberty" in the
Fifth Amendment Due Process Clause context, it has found the term
not to be "confined to mere freedom from bodily restraint." Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 572 n.11 (1972)
(quoting
Bolling, 347 U.S. at 499). In the Fourteenth Amendment
Due Process Clause context, however, "the term has received much
consideration and some of the included things have been definitely
stated."
Id. at 572. Because of the aforementioned parallelism
between the Due Process Clauses of the Fifth and Fourteenth
Amendments, we look to the Supreme Court's interpretation of
15 In her briefing to this Court, Perrier-Bilbo did not identify
or claim that any protected property interest was at play here.
-41-
"liberty" in the Fourteenth Amendment context for guidance. See
Paul v. Davis, 424 U.S. 693, 702 n.3 (1976).
The Supreme Court has found that the term "liberty"
denotes not merely freedom from bodily restraint but
also the right of the individual to contract, to
engage in any of the common occupations of life, to
acquire useful knowledge, to marry, establish a home
and bring up children, to worship God according to
the dictates of his own conscience, and generally to
enjoy those privileges long recognized . . . as
essential to the orderly pursuit of happiness by free
men.
Roth, 408 U.S. at 572 (quoting Meyer v. Nebraska,
262 U.S. 390,
399 (1923)). Perrier-Bilbo's asserted interest comes within none
of those protected areas. A due process claim requires that a
"'cognizable liberty or property interest be at stake,'" Rivera v.
Sessions,
903 F.3d 147, 150–51 (1st Cir. 2018) (quoting Kandamar
v. Gonzales,
464 F.3d 65, 69 (1st Cir. 2006)), and none is present
here. Although the Due Process Clause may protect her ability to
"worship God according to the dictates of [her] own conscience,"
Roth, 408 U.S. at 572 -- a protection which presumably encapsulates
Perrier-Bilbo's right not to worship any god -- the Government has
not prevented Perrier-Bilbo from expressing her atheistic
religious beliefs. Nor can Perrier-Bilbo claim that the regulation
prescribing the oath prohibits her from having a public ceremony
during which she does not have to say the phrase "so help me God."
Rather, the regulations enable her to alter the oath, and the
-42-
Government has given her alternatives to accommodate her beliefs
so that she is comfortable during her ceremony and is able to
naturalize. Perrier-Bilbo's actual complaint seems to be that the
Government will not change the oath for everyone attending the
public ceremony so that no one utters the words to which
Perrier-Bilbo objects. Perrier-Bilbo certainly does not have a
protected liberty interest in that.
Finding no protected liberty or property interest to be
implicated, we hold that the district court correctly denied
Perrier-Bilbo's procedural due process claim. Our conclusion
makes it unnecessary to address whether any deprivation occurred
without constitutionally adequate process. See Hewitt v. Helms,
459 U.S. 460, 472 (1983); Brown v. Hot, Sexy & Safer Prods., Inc.,
68 F.3d 525, 534 (1st Cir. 1995).
B. Reimbursement of Application Fee
After the district court entered summary judgment for
the Government, Perrier-Bilbo filed a post-judgment motion
pursuant to Fed. R. Civ. P. 52(b) and 59(e)16 in which she sought
the reimbursement of the $680 application fee she paid for her
second naturalization form. In the motion, Perrier-Bilbo attempts
16 Rule 52(b) provides for a motion to amend or make additional
findings, see Fed. R. Civ. P. 52(b), and Rule 59(e) provides for
a motion to alter or amend a judgment, see Fed. R. Civ. P. 59(e).
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to make out a procedural due process violation stemming from USCIS
Director Haydon's conduct in response to Perrier-Bilbo's
objections to the oath, and the director's handling and subsequent
designation of her application as abandoned. Perrier-Bilbo argued
that such a violation of "basic" due process required the
reimbursement of the second application fee. The district court
denied the motion, only noting that the Government had prevailed
and Perrier-Bilbo was not entitled to reimbursement.
Perrier-Bilbo's argument on appeal reiterates that Director
Haydon's alleged failure to communicate with her or her attorney,
along with the handling and eventual designation of her first
application for naturalization as abandoned, amounts to a due
process violation. We decline to consider this argument because
we find it is not properly before us.
Perrier-Bilbo's complaint contained a claim that a
procedural due process violation had occurred, but she alleged and
later argued in opposition to the Government's motion to dismiss
that the violation arose from the requirement to take the oath
with the words "so help me God." While we acknowledge that her
complaint alleged and described the facts surrounding her and her
attorney's interactions with Director Haydon and the denial of the
application, it was not until her post-judgment motion that she
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connected those allegations to a purported, additional due process
violation and squarely presented the argument.
The purpose of Rules 52(b) and 59(e) is to allow the
court to correct or amend a judgment in the event of any manifest
errors of law or newly discovered evidence. See Marie v. Allied
Home Mortg. Corp., 402 F.3d 1, 7 n.2 (1st Cir. 2005); Nat'l Metal
Finishing Co. v. BarclaysAmerican/Commercial, Inc.,
899 F.2d 119,
123 (1st Cir. 1990). Perrier-Bilbo's motion, rather than
attempting to prove a manifest error of law or present newly
discovered evidence, attempts to assert -- for the first time and
after summary judgment issued against her -- a procedural due
process claim arising from Director Haydon's conduct. We have
found that reconsideration motions are "aimed at re consideration,
not initial consideration," Harley-Davidson Motor Co. v. Bank of
New England-Old Colony, N.A.,
897 F.2d 611, 616 (1st Cir. 1990)
(emphasis in original) (citing White v. N.H. Dep't of Emp't Sec.,
455 U.S. 445, 451 (1982)), and thus, theories and arguments
presented for the first time in those motions are not properly
before the district court, see Feliciano-Hernández v.
Pereira-Castillo,
663 F.3d 527, 537 (1st Cir. 2011) ("The court
was . . . acting within its discretion in refusing . . . to
consider new arguments that [the plaintiff] could have made
earlier. A motion to reconsider should not 'raise arguments which
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could, and should, have been made before judgment issued.'"
(quoting ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 55
(1st Cir. 2008))); Tell v. Trs. of Dartmouth Coll.,
145 F.3d 417,
419-20 (1st Cir. 1998)(finding that a new theory raised in a motion
for reconsideration had been waived because it "should have been
proffered to the district court" earlier); In re Neurontin Mktg.
& Sales Practices Litig. v. Pfizer, Inc.,
810 F. Supp. 2d 366, 368
(D. Mass. 2011) (finding that a Rule 52(b) motion may not be used
"to assert new theories not raised at trial"). We also lack the
benefit of the district court's fact-finding and initial
examination of this claim. See Clauson v. Smith,
823 F.2d 660,
666 (1st Cir. 1987). Accordingly, we conclude that Perrier-Bilbo's
claim is not properly before us.17 See
Iverson, 452 F.3d at 102–
03 (finding that "theories not squarely and timely raised in the
trial court" and failure to mention or develop a legal theory in
opposition to a dispositive motion "defeat[s] [the] belated
attempt to advance the theory on appeal");
Tell, 145 F.3d at 420
n.3 (declining to consider argument that should have been presented
to the district court).
17 We also note that Perrier-Bilbo's procedural due process
argument on appeal as it pertains to the treatment of and
communications surrounding her application is set forth in a rather
conclusory manner. See United States v. Zannino,
895 F.2d 1, 17
(1st Cir. 1990).
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III. Conclusion
For the foregoing reasons, we affirm the district
court's grant of summary judgment and the denial of Perrier-Bilbo's
post-judgment motion under Fed. R. Civ. P. 52(b) and 59(e).
Affirmed.
"Concurring opinion follows"
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BARRON, Circuit Judge, Concurring. I write separately
to underscore what I understand our opinion to hold. I am moved
to do so by the Constitution's text, which, at the very least, is
a good place to start in trying to figure out what it means.
The portion of that text that I have in mind is the
clause that sets forth the presidential oath. That clause does
not require those completing it to avow their faith in a higher
power.18 Consistent with the founding generation's acceptance of
diverse views about religion, that clause does not even require
the President-elect to "swear" an oath at all, as it expressly
states that, no questions asked, an "affirm[ation]" will do just
as well. U.S. Const. art. II, § 1, cl. 8.19
18 The presidential oath reads: "Before he enter on the execution
of his office, he shall take the following Oath or Affirmation:--
'I do solemnly swear (or affirm) that I will faithfully execute
the Office of President of the United States, and will to the best
of my Ability, preserve, protect and defend the Constitution of
the United States.'" U.S. Const. art. II, § 1, cl. 8; see also
U.S. Const. art. I, § 3, cl. 6 (requiring the Senate be on "Oath
or Affirmation" when sitting for impeachment); U.S. Const. art.
VI, cl. 3 (requiring state and federal legislators and officers to
"be bound by Oath or Affirmation, to support this Constitution");
U.S. Const. amend. IV (requiring warrants to be issued only "upon
probable cause, supported by Oath or affirmation").
19 The Framers in this way made an "affirmative accommodation of
religious belief" by allowing the President-elect to swear or
affirm, given that "[c]ertain minority religious groups, most
notably the Quakers, refused on Biblical grounds to take oaths,
but were willing to make affirmations." Arlin M. Adams & Charles
J. Emmerich, A Heritage of Religious Liberty, 137 U. Pa. L. Rev.
1559, 1630–31 & n.298 (1989). The religious objection to swearing
may be traced to the passage in the New Testament, Matthew 5:34-37,
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The federal regulation that prescribes what a
prospective citizen must say to become naturalized, by contrast,
eschews the more neutral "swear or affirm" approach that the
Constitution selects. Instead, it sets forth a default script
that requires prospective citizens to manifest their loyalty to
this country by swearing, "on oath," the following expression of
religious faith: "so help me God." 8 C.F.R. § 337.1(a). See
Newdow v. Roberts, 603 F.3d 1002, 1016 (D.C. Cir. 2010) (Kavanaugh,
J., concurring) (discussing the "religious nature of words such as
'help me God'").20
that reads:
But I tell you, do not swear an oath at all: either
by heaven, for it is God’s throne; or by the earth,
for it is his footstool; or by Jerusalem, for it is
the city of the Great King. And do not swear by your
head, for you cannot make even one hair white or
black. All you need to say is simply "Yes" or
"No"; anything beyond this comes from the evil one.
20 Congress has specified by statute that:
A person who has applied for naturalization shall, in
order to be and before being admitted to citizenship,
take in a public ceremony . . . an oath (1) to support
the Constitution of the United States; (2) to renounce
and abjure absolutely and entirely all allegiance and
fidelity to any foreign prince, potentate, state, or
sovereignty of whom or which the applicant was before
a subject or citizen; (3) to support and defend the
Constitution and the laws of the United States against
all enemies, foreign and domestic; (4) to bear true
faith and allegiance to the same; and (5)(A) to bear
arms on behalf of the United States when required by
the law, or (B) to perform noncombatant service in
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To be sure, the federal agency that administers the
naturalization process, the United States Citizenship and
Immigration Services ("USCIS"), does permit prospective citizens
to request an accommodation from having to say those words. 8
C.F.R. § 337.1(b). But, the nature of the relief that USCIS makes
available appears to render the citizenship oath, at least as
presently administered, less respectful of the religious liberties
of an immigrant who wishes to make herself a citizen than the
Constitution is of the religious liberties of a citizen who wishes
to make herself a President.
As it happens, though, the plaintiff's chief complaint
in this case does not take aim at the inadequacy of the
accommodations that were offered to her. Instead, she primarily
contends that, notwithstanding them, the government impermissibly
subjected her to a government-endorsed religious message merely by
the Armed Forces of the United States when required
by the law, or (C) to perform work of national
importance under civilian direction when required by
the law.
8 U.S.C. § 1448(a). The regulation promulgated under that
statute, 8 C.F.R. § 337.1(a), sets forth specific language for the
oath, and the default mechanism for how one must solemnize it.
The language set forth in that regulation that is most relevant to
the issues before us -- "on oath," "so help me God" -- is notably
not in the statute itself:
I hereby declare, on oath, that . . . and that I take
this obligation freely, without any mental
reservation or purpose of evasion; so help me God.
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permitting others to complete the citizenship oath in her presence
with the words, "so help me God." Our opinion well explains why,
given past practice, that complaint lacks merit. Indeed, the
Constitution permits the President-elect to choose to "swear" to
the presidential oath, and Presidents-to-be have regularly
exercised that option by saying, "so help me God." See Am. Legion
v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2074 (2019).
But, the plaintiff does make a fallback complaint, in
which she contends that, due to the inadequacy of the USCIS's
efforts to accommodate her concerns, the government pressured her
to conform to the religiously inflected default means of completing
the citizenship oath. And that contention is more promising.
In keeping with the governing federal regulations, 8
C.F.R. § 337.1(b), the USCIS offered the plaintiff here the option
of either declining to participate in the public naturalization
ceremony and taking the oath privately while stating that she
"solemnly affirm[s]" what it says, or participating in that
ceremony while refraining from saying "so help me God" when the
officiant instructed the participants to do so. Id. But, I can
imagine that some prospective citizens might not be comfortable
asking the government to spare them from having to swear to God,
especially if to obtain that relief they must be willing to
demonstrate that they are entitled to it "by reason of religious
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training and belief (or individual interpretation thereof), or
for other reasons of good conscience." Id. And, even setting
that concern aside, it also is not clear to me that the private-
ceremony option is adequate, given that it appears to permit the
prospective citizen to be true to herself only if she skips one of
the most inspiring and moving civic ceremonies that our government
sponsors. Nor is it clear to me that the remaining-silent option
is adequate either, given that it places the prospective citizen
in the uncomfortably conspicuous position of refusing to say "on
oath" and "so help me God" while all around her are instructed by
the officiant (often a federal judge) to do so.
Our decision in Freedom From Religion Foundation v.
Hanover School District, 626 F.3d 1 (1st Cir. 2010), moreover,
does not appear to show that the latter accommodation could be
curative, even if the former could not. There, we held that "the
recitation of the Pledge in public school classrooms" in New
Hampshire did not unconstitutionally coerce "children to recite a
purely religious ideology," notwithstanding that the Pledge
referred to this nation as one that is "under God," because the
school district permitted students to remain "silent during the
saying of the Pledge [of Allegiance]."
Id. at 10-14 (internal
quotation omitted). But, there is a difference between swearing
to God to become a citizen of the United States and making a pledge
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that refers to God in describing the United States. There is a
difference, too, between participating in the ceremony through
which one engages in the legally consequential act that transforms
oneself into a United States citizen and attending an early morning
homeroom in which a routine recitation is made. Thus, the case
for finding that an immigrant's public silence in the former
setting would be considered conspicuous -- and reflective of her
disbelief in God -- appears to me to be much stronger than the
case for finding the same to be true when a high schooler chooses
to stay mum while the PA system broadcasts the Pledge. See id.
Citizenship entails, as a necessary burden, the
willingness to stand up for one's rights. It does not entail the
obligation to overcome the pressure that the government exerts --
even if only indirectly, and even if only through inattention --
by leveraging the predictable human impulse to seek out the comfort
of fitting in or, at least, to avoid the hassles that so often
follow from choosing to stand out. Thus, while the burden
presently imposed on the individual immigrant who objects to saying
"so help me God" to complete the citizenship oath may seem minimal,
it should not be ignored, at least when the government could so
easily avoid imposing it.
The government could require, for example, that the
officiant instruct participants in the public naturalization
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ceremony to make known their loyalty to this country either by
making an affirmation or by making their commitment "on oath" and
by saying, "so help me God." By doing so, the government would
take the modest step of ensuring that officiants would no longer
instruct participants in such ceremonies to make only the latter
statements. And, in consequence, prospective citizens who are
uncomfortable making them would no longer need to seek special
permission to remain silent as the price of their admission. In
fact, that revised approach would not even mark a break with
tradition, as it would revert back to the practice reflected in
the ready templates set forth not only in Article II, Section 1 of
the Constitution but also in the 1790 statute in which Congress
first prescribed how those seeking naturalization should make
known their allegiance to the United States. See Naturalization
Act of 1790, ch. 3, § 1, 1 Stat. 103, 103 (expressly referring to
"the oath or affirmation prescribed by law, to support the
constitution of the United States, which oath or affirmation such
court shall administer"); see also Naturalization Act of 1795,
§ 2, 1 Stat. 414, 415 (stating that the prospective citizen "may
be admitted to become a citizen, on his declaring on oath or
affirmation").21
21 Under the early statutes, courts administering the oath
retained some flexibility as to its content. See Naturalization
Oath of Allegiance to the United States of America: History, U.S.
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The plaintiff here, however, in claiming that she was
pressured to complete the oath by saying, "so help me God," hardly
addresses the adequacy of the option to remain silent that she was
given. She focuses her challenge in that regard almost
exclusively on what she contends is the inadequacy of the private
ceremony option. We thus must assume the adequacy of the option
that was made available to her, as she does not challenge it in
any developed way. For that reason, I join our opinion in full,
as it does not preclude our finding merit in a different attempt
by an immigrant than we confront here to enforce the right to
religious liberty that has, for so long, led so many to seek
citizenship in this country.
Citizenship & Immigr. Servs., https://www.uscis.gov/us-
citizenship/naturalization-test/naturalization-oath-allegiance-
united-states-america (last updated June 25, 2014). The first
official standard text for the Oath of Allegiance was promulgated
by regulation in 1929 and included the language, "so help me God."
Id.
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