December 13, 2008

I believe the judge should have said a little more about why those South Carolina license plates violate the Establishment Clause.

A federal judge has told South Carolina to stop making and selling the "I Believe" license plate. (Via Hot Air.)
In court, an attorney for [Americans United for Separation of Church and State] said state lawmakers had approved what she called a "uniquely Christian" license plate....

"The question really presented here is whether government should be allowed to exclude a religious message precisely because it's religious. Are we going to say it's okay in the public square to express a preference for a secular humanist position of 'In God we trust' or a preference for a football team or a university? And then at the same time say any expression of a religious viewpoint is per se, impermissible," said DMV attorney Kevin Hall....

I wrote about the "I Believe" license plate back in July:
The "I Believe" specialty plate is almost surely a state endorsement of Christianity that violates the Establishment Clause. (There's no array of specialty plates for different religions and no atheist plate. What would an atheist plate look like?)
But I'm taken aback by the federal judge's incredibly skimpy analysis of the legal question. (PDF.) After articulating the 3-part "Lemon test," Cameron McGowan Currie simply asserts:
Based on the record now before the court, the court finds it unlikely that the I Believe Act satisfies even one of these three requirements. As the Act must satisfy all three requirements to survive constitutional scrutiny, the court concludes Plaintiffs have made a strong showing of likelihood of success on the merits as to their Establishment Clause Claim.
That says nothing more than: I think it's unlikely that any of the 3 parts of the test is met. Nothing about why and no acknowledgment of the counter-arguments. It's a serious question, and it is certain that if the Supreme Court were to look at this case, it would take more than an invocation of the much-maligned Lemon test to say no to South Carolina's fund-raising and facilitation of individual expression via license plate.

I won't bore you with a disquisition on the history of the Lemon test. I'll just entertain you with Justice Scalia's famous mockery of the Court's spotty reliance on it:
[L]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman, 505 U.S. 577 (1992), conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. [Citations omitted.]

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e.g., Aguilar v. Fenton, 473 U.S. 402 (1985) (striking down state remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
And so, Judge Currie has prodded the old monster.


I'm Full of Soup said...

What about tree-huggers and animal lovers? I bet there are state sanctioned slogans on license plates that say stuff like "I Brake For Animals" or "Save The Earth".

If so, can you get one that says "I speed up for animals" or "Global Warming is A Crock"?

No I bet you can't. We need a Fairness Doctrine For License plates. Heh.

Richard Dolan said...

So, does wanting more from the District Judge stem from a need to have a subject to blog about or a lawprof's desire to have an opinion to dissect? Rule 65 requires findings of fact and conclusions of law, and the findings/conclusions are sufficient if they permit meaningful appellate review. The findings/conclusions here were sparse but seem to meet the standard. I remember a case in the EDNY when I was an AUSA, where two law students from Harvard were challenging the military chaplaincy program. They were litigating a footnote in Tribe's casebook. At oral argument CJ Mishler asked them whether they wanted him to rule on their motion or just grade it. Perhaps this DJ was a little impatient with this license plate case as well.

Of course, the Judge could easily have met even the most exacting standard just be adding a cite: See Althouse.blogspot at ___ (or however one cites a blog-post in Blue Book form).

Wince said...

What would an atheist plate look like?

And the award goes to...

TMink said...

"What would an atheist plate look like?"

Blank with "Don't Ask Me" on it?


Elliott A said...

A circle enclosing the symbols for all major religions with a slash through it

Elliott A said...

Could the actual responsibility for the state in the license plate be limited to the state name and the plate number? If the plate number does not have a message then the rest of the plate is decoration. I can't believe (bad pun) that "I believe" by itself constitutes establishment of anything. Since the state allows multiple backgrounds, one could argue that they have no stake in the plate background.

Bender R said...

The judge should have said more? The judge should have applied a little legal reasoning?

You must be kidding. This is 2008, soon to be 2009. The courts gave up reason, reasoning, and rationality long ago. You want the reason? You want the real reason? Because the judge said so, that's why! Period.

The courts are not about explaining. The courts are not about legal reasoning. The courts are about POWER. The judges have it and screw everyone else. To hell with reason and legal precedent (and 85 percent of what you read in a law school casebook) when you have the arbitrary whims of a judge today.

Cedarford said...

I think the judge got it right. People can wear their religion on their sleeve if they want, even paint their whole car up with crosses and pictures of Holy Mary as a mobile billboard of their faith if they want - but not through state agencies and state plates displaying crosses on official state documents.

If you doubt plates are not state-controlled documents, you miss that theft or misuse of plates is a criminal offense against the state regarding licensing and proper registration documentation..

Besides, I don't want to see this extend to official plates with a big red bar through the cross and a motto "Jesus sucks" vs. "I believe". Or Star and Crescent religious plates with a motto in the preferred Arabic "There is NO God but Allah!" underneath.

Unknown said...

Elliot A --

True if the state allows you to put on your own background. If the state provided the stained glass, Christian background, it shouldn't without a complete range, including Zorastorism.

Atheists are without, not against, anymore than being religious makes one anti-areligious.

The question of what an atheist plate would look like is itself an oxymoron.

EDH --

Cute, but stupid.

I'm with Cedarford on this.

Synova said...

So, what is the procedure for getting a religious plate that isn't Christian?

In the end, though, this is about revenue isn't it? It's not about promoting Christianity with tax dollars, it's about the same thing all those "message" plates are about.

Extra money for the DMV.

A market exists for "save the whales" plates and those promoting a sports team or other cause, and a market exists of people who will pay extra to buy a Christian plate.

The question of excluding religion while allowing "save the whales" is actually a question of infringing the free exercise, no? It's different rules for religion than for other causes and other promotions.

The question is religion neutral... will enough people order this plate to make it a worthwhile money maker for the state?

Isn't government *supposed* to be religion neutral?

Wince said...

Led Zepplin's Lemon Song could have been written by Scalia about the Supreme Court's relationship with the Lemon Test.

BTW, I interpret the "squeeze my lemon" and "fall out of bed" lyrics as metaphors for "contortions of precedent" and "Lincoln rolling over in his grave."

Lemon Song
I should have quit you long time ago
Yeah long time ago.
Oh yeah long time ago.
I wouldn`t be here my children
down on this killin` floor.
I should have listened baby to my second mind
Everytime I go away and leave you darling
You send me the blues way down the line.
Babe treat me right baby oh my my my
People tellin` me baby can`t be satisfied;
They try to worry me baby
But they never hurt you in my eyes.
Said, people worry I can`t keep you satisfied.
Let me tell you baby,
You ain`t nothin but a two-bit, no-good jive...

I should have quit you, baby, such a long time ago,
I wouldn`t be here with all my troubles
Down on this killing floor.
Squeeze me baby, till the juice runs down my leg,
The way you squeeze my lemon,
I..I`m gonna fall right out of bed, Yeah.
Hey! [conversation between Robert Plant & guitar]
Baby baby baby...
I`m gonna leave my children down on this killin floor

I'm Full of Soup said...

Synova hits it square on the head and said it way better than I could. It is about tax revenue so where does the state draw the line?

Is "Save The Whales" (a belief system IMO) much different than let's say "Jesus Rules"?

kimsch said...

Since no one is forced to have the "I Believe" plate I don't see how it could violate the establishment clause. Our local "Newdow" - can't remember his name off hand - got the cross taken off of the city of Zion, IL's city sticker because he was offended... In that case, everyone who lived in Zion had to have the city sticker on the windshield of the car. Therefore, no choice. The plates are a choice, even with the cross on them. Zion, Illinois was founded as a Christian Utopian community btw, so the Cross on the sticker has historical meaning, but SCOTUS said they had to take it off...

Ken Pidcock said...

I don't know how it works in South Carolina, but in other states (and commonwealths!), the state is in the business of selling space on the license plate. Usually, there is a third party involved in promoting a design and taking a cut. If that's the case here, I don't see where the state is establishing anything.

blake said...

I side with those who fail to see the establishment part here.

We're not far from the time where the state could make it possible to design your own plate. Are they going to be responsible for religious statements made thereon?

"Save the Whales" indeed.

Edward said...

When a decision is obvious the court should just say so instead of blathering on for endless pages. The average length of full opinions in the Federal Supplement must have tripled or quadrupled in my professional lifetime; this judge should be commended for giving South Carolina's position the short shrift it deserved.

I am bemused by your remark that the arguments on the other side are "serious". This seems like a blatant state endorsement of the Christian religion. Can that really be constitutional?

Ann Althouse said...

Edward, I'm not asking for a lot of pages and I agree that there are many overlong cases. What I want is for courts to clearly justify their exercise of power with legal reasoning.

As for the argument on the other side, I have not read the briefs, but I believe it would have to do with the plates being considered a limited speech forum and the requirement of avoiding viewpoint discrimination. I would need to know more about the process for getting specialized plates approved. If there is a standardized procedure and nonreligious viewpoints are accepted, then it become a free speech problem to discriminate against the religious viewpoint.

Anonymous said...

First of all, as anyone who is honest will surely admit, the Establishment Clause prohibits the federal government from establishing a religion, not the states. Cue the argument that all federal rights are mandated within the states now under ratchet theory and the post-Civil War amendments.

Anyway, I think this judge gets an F for being a judge, and I don't think the Establishment Clause is remotely violated, particularly if other reasonably major religious groups could be afforded the right to design and have their own reasonable license plates.

theobromophile said...

(There's no array of specialty plates for different religions and no atheist plate. What would an atheist plate look like?)
That fish with legs and "Darwin" written through it, obviously!

As for the sports teams being somehow different from organised religion: you're obviously not from Boston. Allegiance to the Sox is a religion up here. In fact, most Boston fans are a lot more fanatical about their sports than they are about their Catholicism (or Protestantism, or Judaism, or whatever.)

Ralph L said...

Our North Carolina DMV sells religious plates for the not-required front bracket.
Was it the text or the cross, or the combination, that flunked the lemon test?
Our rear plates used to say "First in Freedom," a reference to the 1775 Mecklenburg County Declaration of Independence (which my g-g-g-grandfather witnessed, but was too young to sign). A few years ago, some blacks correctly objected their ancestors weren't free, so they changed it to "first in flight," which Ohio has a better claim to, if you ask me.

Eric said...

First of all, as anyone who is honest will surely admit, the Establishment Clause prohibits the federal government from establishing a religion, not the states.

I agree with this. For decades after the constitution was ratified there were states with official state religions, and it was considered constitutional.

I wonder if, when the 14th amendment was ratified, people at the time knew later courts would use it to selectively "incorporate" random parts of the Bill of Rights. All of the first amendment is incorporated (regardless of the clear "Congress shall make no law..."), and yet the second? Well, they didn't like that one, I guess.

David said...

Our constitutional law crew at Mike's Deli and Pizzeria here in Beaufort, S.C. has pondered this issue.

We have a practical solution.

South Carolina should have a plate that says "I Don't Believe." That certainly is not an endorsement of religion, right?

Then, those who disagree can cross out the "Don't."