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CNN Senior Legal Analyst
South Carolina is soon going to be offering a new option for its license plates: a rendering of a Christian cross over a stained-glass window and the words “I believe.” The question is whether this offer is constitutional.
License plates have already generated a surprising amount of litigation. As most people know, New Hampshire plates say, “Live free or die.” A Jehovah’s Witness, who objected to that message, taped it over, and he was prosecuted for tampering with the plate. In 1977, the U.S. Supreme Court said the prosecution was unconstitutional because the defendant had the right not to speak –- that is, not to display the words on his car.
The question in South Carolina is different. No one, of course, has to purchase the “I believe” plate, but does the mere offer become an endorsement of religion by the state? The state argues that this kind of plate is basically like a bumper sticker – a form of free speech for the car owner, which the state is just trying to accommodate. But those challenging the plates say that a license plate offered by the government is a very different thing that a bumper sticker. There is, for example, no comparable plate offered to non-Christians, or non-believers. According to these critics, any kind of government-sanctioned plate, which endorses only one religion, amounts to an impermissible entanglement between church and state.
A similar controversy is ongoing in Tennessee, where there is a proposal for a plate that says “Choose Life,” with a portion of the state fee going to a private adoption service. (Many states have plates with charitable themes – like supporting wildlife, or the state university football team – and the state steers fees to support these causes.) This, I think, is going to be harder for the state to defend, because there is a direct financial tie between the plate and the favored charity. True, as in South Carolina, no one is compelled to buy a “Choose Life” plate, and the state merely facilitates the money transfer and does not provide taxpayer money, but the connection between church and state is even closer here.
The constitutional issues in South Carolina are, to my mind, very difficult. Once you get into the nitty-gritty of issues like this one, questions that seem simple – like, “What is speech?” “When is the government speaking?” – suddenly get a lot harder. Look for a long journey through the courts for “I believe.”
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