An interesting discussion on the religionlaw listserv about a situation in Indiana, where the state is offering a specialty license plate that says “in God We Trust” on it. Now, that alone is not an establishment clause problem; Indiana and many other states off a wide range of specialty plates with a wide range of messages on them and you can choose which you want to buy or take the standard state license plate, as most do. What brings up a potential church/state issue is the fact that, unlike all of the other specialty plates the state offers, there is no extra charge for the “In God We Trust” plate.
For a fee ranging from $10 to $25, Indiana residents can get a specialty plate that expresses their support for various organizations and ideas. You can support the Rotary Club with a plate that says “Service over Self”, or the Juvenile Diabetes Research Foundation by declaring “On the Road to a Cure” on your license plate. You can signify your green credentials with a special environmental plate or urge others to “Support Our Troops” if you’d like. But you have to pay for all of those message plates, while the In God We Trust plate is free.
Eugene Volokh suggests that this is analogous to the same motto on the currency, which the courts have ruled is not a violation of the establishment clause:
Well, to the same extent that the motto on currency is establishment, or the phrase “Let this be our motto, In God Is Our Trust” in our national anthem is establishment — which is to say, given the courts’ caselaw on this, not establishment.
That doesn’t necessarily mean that Volokh agrees with those rulings, but he is right that if a court views the situation as analogous to the motto on American currency, it’s unlikely that they’ll see a constitutional problem. But Steve Sanders provides the counter-argument:
Were Indiana to put this same motto on all standard license plates, and not offer its citizens any choice in the matter, I think the analogy to the currency would be perfectly apt.
But this seems different. In Indiana, there’s a standard plate and various optional plates. If you choose an optional plate to express your support for your university, or veterans, or the national guard, or DARE, or even “our troops,” you pay an extra fee. But choose the optional plate on which you display the government’s endorsement of God, and the government in effect gives you a subsidy for agreeing to propagate that particular religious message.
Is it a big deal? Not really. But I tend to think Steve is right. By treating this message plate with an explicit religious endorsement differently than other plates, the message is that the state prefers that message over all the other optional messages available. One could even argue that the message is being subsidized, indirectly, by being free as opposed to other optional messages available.