December 13, 2008

I Believe The Court Got It Right

A Federal Court in South Carolina has enjoined the state from advertising, selling, printing, and distributing license plates that would look more or less like the one illustrated to the left. This should have been a pretty easy call, and indeed, the decision is remarkable for its brevity:
The Lemon test requires that a law meet all of the following requirements: (1) have a secular purpose, (2) have a primary effect that neither enhances nor inhibits religion, and (3) not foster an excessive government entanglement with religion. Mellen v. Bunting 327 F.3d 355, 372 (4th Cir. 2003). Based on the record before the court, the court finds it unlikely that the I Believe Act [authorizing the state to make these license plates] satisfies even one of these requirements.
The state appears likely to appeal to the Fourth Circuit. Why, I understand -- to please a constituency. On what legal grounds, however, I don't know. This is not even a close case. Not only is this rather obviously the promotion by the state of a religious symbology, it is the promotion of a specific religion's symbology. Not that this would make it any better --as the situation in Washington State makes clear, once you make the government available to advance one point of view, you have to make it available to all points of view, and that quickly becomes completely unworkable. Which is the point of the third prong of the Lemon test, after all. Which is why the Establishment Clause remains such an important limit on the ability of the government to act.

If you want your car to publicly display your belief, get a bumper sticker.

1 comment:

David Schraub said...

Normally, I'd agree, but this is the 4th Circuit we're talking about, which has held that states can not only endorse certain religious beliefs via legislative invocation (not unreasonably, given Marsh v. Chambers), but can actively decide and discriminate against disfavored faiths in doing so. Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276 (2005), also known as the most appalling church/state ruling in my lifetime. It is not, in other words, exactly the circuit most friendly to establishment clause claims.