Wednesday, December 17, 2008

I Believe this License Plate is Unconstitutional

. . .though I don't believe the suit against it will ultimately be successful.

This blog has reported earlier about efforts in Florida to create a Christian-themed specialty license plate. South Carolina has begun production and, as of this week, been ordered to stop. Americans United, who brought the suit, has been crowing about a preliminary injunction handed down this week.

Just to be clear about this, a preliminary injunction does give an indication that the judge is leaning toward the party who secures it, but it isn't a complete win, even at the trial court level. It is what it say -- preliminary. Under the right circumstances a judge will make one party or the other stop what they are doing to preserve the status quo pending the ultimate decision. While one part of the calculus is a judgment that the moving party is likely to succeed on the merits, it's entirely possible to obtain a preliminary injunction, then ultimately lose.

To say nothing of the appeal. The Fourth Circuit runs shoulder to shoulder with DC in the race for the most conservative appellate panel. And at some point the Supremes will weigh in as well and the current Court is not friendly to Establishment Clause claims.

In the opinion granting the injunction, the trial court notes:

    As the Supreme Court has further explained, "Government may not promote or affiliate itself with any religious doctrine or organization." [quoting County of Allegheny v. ACLU].
Allegheny County is a 1989 case regarding a government-sponsored Christmas and Chanuka display. Of the five member majority, only one -- Justice John Paul Stevens -- still sits on the Court. On the other hand, Justice Anthony Kennedy now the swing justice authored a dissenting opinion which offers his views at the time regarding government-sponsored religious speech. Kennedy rejects the argument that government religious endorsement is unconstitutional if it conveys the message to non-believers that the are not part of the political culture. Instead, he argues that Establishment Clause cases turn on whether the government conduct is in some way coercive to non-believers.

A lot has happened to Kennedy's jurisprudence since 1989s- he is the one conservative justice who has drifted toward the center. So it remains to be seen whether that is still his view and whether he will forego that view given that the majority decided differently. Personally I'm not confident that he will.

And so what's the harm, you ask? If the standard is actual coercion, shouldn't that offer enough protection to reprobates and heretics like yr humble blogger and his friends. Well, a couple of things. First off, make no mistake -- making nonbelievers feel as if they are outside the American community isn't a side effect of efforts like the SC license plate, it's a goal. And a constant drumbeat of messages that certain people are not "real" Americans pushes closer and closer to the level of coercion.

In other words, the line between government conveying the message that nonbelievers are truly part of the community and "coercion" is far more difficult to draw that Justice Kennedy seems to believe.


Anonymous said...

Just curious, but were the "reprobates and heretics like yr humble blogger and his friends" planning to be part of President-elect Obama'a post-racial and post-partisan America? While your "real American" sensibilities were taken aback, the President-elect solicited your cooperation.

Any suggestions for funding a 21st century system of public schools that meets UN human rights conventions and prepares citizens to participate in President Obama's new age of si se pueda? Or have we abandoned election year rhetoric and lapsed into Rights Talk and pre-post-racial identity group partisanship?

Good golly, Pho, we (Republicans) got the message to put partisanship behind us and make the upcoming Presidency a success. What are the odds of that when Obama's supporters aren't even willing to participate? How many Obama house parties last weekend even considered meeting UN human rights conventions in US public schools?

It's one thing to get your candidate elected by talking the Mary Ann Glendon talk, but don't expect others to ignore your Tribe/Dershowitz walk.