One License Plate Under God

As we discuss the process for coming up with Big Ideas, and whether those ideas will improve the lot of Ohioans, we should also note the small ideas that will accomplish nothing good. One example from today's Dispatch ($$$):

The phrase "One nation under God" is moving from the Pledge of Allegiance to the
back of some Ohio cars.
The Ohio House yesterday overwhelmingly approved a
new license plate that will feature the phrase and a picture of the American
flag.
The bill, which passed the Senate unanimously in April, now heads to
Gov. Bob Taft, who is expected to sign it.

The effort to do this thing was spearheaded by Moms for Ohio -- the same Moms for Ohio that opposed the RON amendments. As a stay-at-home dad, I've developed a certain understanding of moms in Ohio. I know lots of moms and we talk about what it important to us. In the admittedly unrepresentative sample of moms I know, "One nation under God" license plates don't crack the top 200.

As much as it steams me to see far-right cultural conservatism labeled as the "pro-family" position, it is particularly galling for a straight-up fundamentalist organization to pretend to speak to as broad a group as "Moms." Whoever starts the liberal "Christians for Ohio" just to fire back will get a donation from me.

What has the GA accomplished with this? Well, litigation guaranteed. Ohio's "Choose Life" license plate is wending its way though the Federal courts now.

The "Under God" license plate is potentially more problematic to defend. To understand, you have to understand the way litigants are analyzing license plates like "Choose Life." Dahlia Lithwick lays it out.

To understand the free speech issue, it's important to clarify whether specialty
license plates represent government speech or private citizens' speech. Why?
Because there is no question that the government may speak in a partisan manner
without violating the Constitution. The First Amendment applies only to
government efforts to restrict private speech; it doesn't apply back to the
state itself. This is why the state is perfectly free to tell you to stay in
school, or drive sober, without having to broadcast the opposing viewpoint.
States may have preferences for all sorts of messages. But if, on the other
hand, the government opens a forum for private speakers—if it creates a park or
builds a street where you and I are free to talk—it cannot be in the business of
censoring some viewpoints while permitting others. This is the core of the First
Amendment. So, the legal test for the courts is simply this: When the state
gives license plates to certain private organizations to broadcast their
messages, is it more like the state is talking (akin to a public service
announcement) or more like it's allowing private citizen to talk (like they
would in a public square)? The former is constitutional, but the latter may well
be censorship.

This puts the state in a dilemma with regard to "Under God" plates. If they constitute government-aided private speech, all is well as long as competing messages are also allowed. Will the GA allow an Atheist license plate? Or "One nation under Allah"? Probably not.

But, in this case the state engaging in the speech also puts the plates on constitutionally shaky ground. While the government can make one-sided statements on political issues, they cannot do so on religious issues under the Establishment Clause.

The only safe harbor at that point is the increasingly lame and counterfactual argument that certain religious images and phrases have taken on secular meanings. The metes and bounds of this refuge are hazy and, thanks to conservative religious activists, getting hazier. The trend among the fundies is to take these "secularized" images and phrases and repurpose them to create a government endorsement of religion. This license plate is one example. Another is the attempt last year to mandate placing the State motto -- "With God all things are possible" -- in every public school classroom in the state.

Courts are just beginning to grapple with this and, in this the Roberts Court era, no one can tell where it will end.