Dispatches from the Creation Wars

Remember my post a few weeks ago about the new “In God We Trust” license plates in Indiana and how the state is not charging extra for them as they do for other specialty plates? The ACLU has filed suit on behalf of an Indiana resident challenging that fact on establishment clause grounds. It’s an interesting case and there are really solid arguments to be made on both sides. They can be summed up easily, as Howard Friedman did:

ACLU attorney Ken Falk says that waiver of the fee amounts to promotion of the religious-themed plate by the state. However Rep. Woody Burton who sponsored the legislation creating the plate says that no added fee is charged because these plates are stock items that do not generate financial support for any particular group.

Indeed, if those plates did funnel money to a religious group as other specialty plates do then that might well be considered unconstitutional. So are they violating the establishment clause or avoiding a violation of it? Interesting legal question that would make a great hypothetical in a con law class.

Comments

  1. #1 matthew
    April 25, 2007

    imagine how super-fantastic-awesome it would be if you could also get a plate that read “In FSM We Trust” for no extra cost

  2. #2 Fastlane
    April 25, 2007

    I think the key is ‘for no extra cost’.

    If one could get an islamic or jewish phrase comparable to that on a license plate for no extra cost, it wouldn’t be a problem. However, the fact is that the state only offers a few options (how many?) and all of the others have a cost associated with them.

    I’m SURE that these being available for free is all just a coincidence *wink wink* and has nothing to do with some religionist who just happens to be either good friends with someone in the DMV, or actually in the DMV pushing this as a personal agenda. Cuz that’s NEVER happened before….

    I think the lawsuit is a good idea, just because I’m 99% sure that there’s some dishonest scumbag behind this that won’t just come right out and admit his motives.

    Cheers.

  3. #3 flatlander100
    April 25, 2007

    I wonder if the establishment clause is the right one under which to make this challenge. Would the 14th Amendment “equal protection” clause serve better? Be interesting for a religious group that does not have belief in a single god as part of its faith — Hindus perhaps? — or one that does not believe in “gods” at all — Buddhists, perhaps? — asked for a license plate with a slogan more in keeping with its beliefs to be made available under the same terms [free] to its followers. Several cases involving Eagles 10 Commandments monuments in public parks here in Utah have been brought, successfully, on 14th Amendment grounds. The petitioners asked for the right to erect monuments to their founding principles at their own expense in the same public parks that housed the 10 Commandments monuments. Invariably, the cities involved denied, and the cases were brought on equal protection grounds, and in every case I am aware of … one right here in Ogden, UT… the federal courts ruled that cities had either to ban all religious monuments, or to permit all faiths to erect monuments in public parks on the same terms, but that the cities could not permit some faiths to erect monuments in public parks while denying that right to others. So, I wonder, if an “equal protection” 14th Amendment challenge would work in the license plate case.

  4. #4 Jim Spencer
    April 25, 2007

    I live in Indianapolis and think the in god we trust plates are an affront. I would like the ACLU suite to demand that the $15.00 fee for plate be handled the same way as the other specialty plate fees, part of the fee goes to the cause ( environment, Black Expo, etc)that the plate espouses. I would like to see a court determine where the in god we trust money would go.

  5. #5 MJ Memphis
    April 25, 2007

    Unfortunately, given the fact that the phrase in question is on all of our money, I think Indiana will probably win its case. Which is one of the reasons why I believe the “ceremonial deism” that allows such ‘inconsequential’ things to stand needs to be challenged and ultimately defeated.

  6. #6 Jim51
    April 25, 2007

    MJ,
    “Ceremonial deism”? I don’t know this reference.
    Can you explain a little about it to me?
    Jim51

  7. #7 Reality Czech
    April 25, 2007

    The plates clearly constitute an endorsement of religion over irreligion.  This fails the Lemon test, no?

    Unfortunately, our Supreme Court would probably claim otherwise, contrary to the clear language of the First A.

  8. #8 Joshua Claybourn
    April 25, 2007

    Ed, as noted in the comments of a post of mine a couple days ago, the case is not being brought on establishment clause grounds.

  9. #9 ctw
    April 25, 2007

    “Rep. Woody Burton who sponsored the legislation creating the plate says that no added fee is charged because these plates are stock items that do not generate financial support for any particular group.”

    this strikes me as a logic-challenged statement typical of those from closet theocrats. even if the plates are in fact “stock items”, there were incremental costs involved in producing them as opposed to just increasing the number of standard plates produced, and presumably that’s one component of the “administrative fee” (the phrase used in the linked announcement). to the extent that other components are truly “administrative” costs, not recouping them clearly suggests endorsement. the fact that some portion of the fee doesn’t go to a non-government organization seems at best to argue for a reduced fee.

    of course, IMO MJ Memphis correctly identifies the underlying problem, although I am not at all optimistic that it will be challenged, nevermind defeated, in my lifetime (but then I’m old).

    another tack might be asking why official government “documents” are being used as advertising billboards in the first place? if we ultimately end up with some form of high tech electronic national ID device are they going to include screens with those irritating flashing ads for low cost loans?

    -charles

  10. #10 Stuart Coleman
    April 25, 2007

    When I first heard about this one I didn’t really think it was worth challenging, and I still don’t. I suppose it will be interesting to see who wins, but it won’t be a major victory (or loss) for either side.

  11. #11 ctw
    April 25, 2007

    “it won’t be a major victory (or loss) for either side”

    true, but IMO beside the point. first, there is the slippery-slope argument. but much more important is that trying to make some minimal sense of establishment clause law is a really fun intellectual game, even for a layman.

    -c

  12. #12 ctw
    April 25, 2007
  13. #13 daenku32
    April 25, 2007

    The extra dimension to this is that the specialty plates are not just about charity, it is about wearing it on your sleeve. If you want to donate to Boy Scouts, Land Trusts, favorite college, you can do it without getting a plate. The plate simply expresses your endorsement of a particular organization or stance. As ACLU lawyer said, if he wants to express himself with another plate, the license branch will charge extra money.

    Btw, when I went to a branch recently to renew my driver’s license, there was a color printout essentially advertising the new plate and how it was a free alternative to the regular one. I consider that endorsement by the branch.

  14. #14 Ed Brayton
    April 25, 2007

    Josh-

    Thanks for the link and the new information. He’s right, this is not being challenged on establishment clause grounds or even on Federal constitutional grounds at all. The case has been filed in state court only and on the basis of an equal protection clause in the Indiana state constitution (Art. 1, sec 23). That article says:

    The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.

    I agree with Josh that they are likely to lose the case in court. The state has a pretty persuasive argument based on the clear difference between the “In God We Trust” plate and the specialty plates that cost more. The specialty plates offered by the state all benefit an organization. Those who want the plates pay from $25 to $50 for them; the state takes out a $15 service fee and the rest goes to the organization sponsoring the plate. In the case of the “In God We Trust” plate, there is no organization benefiting financially from it and thus no need to increase the price (the state doesn’t have to handle any money, so there’s no need for an additional fee). Indeed, one might argue that if the state did handle that money and give it to a religious organization, that’s a constitutional violation. It’s obviously true that the only reason this was passed by the legislature was to endorse religious belief, but that really isn’t an issue in this lawsuit at the state level.

  15. #15 Michael LoPrete
    April 25, 2007

    I don’t know. I see the classes as those people who get license plates. Anyone who wants a message of any sort on their plate (custom letters/numbers or vanity image) must pay a fee, unless the message you wish to support is “In God We Trust”. To me, that appears to create a class of people who benefit and causes the government to implicitly endorse one message more strongly than another.

  16. #16 Rev. BigDumbChimp
    April 25, 2007

    It costs us $30.00 bucks in SC for a “In Reason We Trust” license plate and like said above, the “In God We Trust” plates are the same cost as the regular ones.

  17. #17 Michael LoPrete
    April 25, 2007
  18. #18 MJ Memphis
    April 25, 2007

    Jim51- Ceremonial deism is the idea that certain invocations of (a non-faith-specific) deity by the government are essentially bland, routine statements that have become devoid of religious value- for instance “in God we trust” on coinage, “God save this honorable court” before court sessions, “so help me God” in oaths of office, and so forth.

    The trouble with this idea is that it basically serves as a stealth infringement of religion (and specifically Christianity) into government; believers *think* they are endorsements of their religion, and will argue that the government is therefore based on, and supportive of, their religion, but the courts pretend that it is not so. This enables sneaky gestures like Indiana’s license plate gambit; the state can say “Oh no, we would *never* try to push a religious point of view, it’s just ceremonial deism”, while giving a broad wink and a nod to the religious folks who know better.

  19. #19 Doug
    April 25, 2007

    All of the specialty plates in Indiana, except the In God We Trust Plate, require the recipient to pay a $15 administrative fee. Quite a few of the specialty plates also require an additional fee — usually (if not always) $25. The $25 goes to a special cause. The Plaintiff in this case chooses to buy an Environmental plate which costs $40 (the $15 + $25). The complaint specifically notes that he is not challenging the lack of the $25 fee for the In God We Trust. He is challenging the $15 he has to pay to the State to express himself that the IGWT people don’t have to pay.

    Hoosiers who buy the standard plate do not have to pay the $15 administrative cost charged for all the specialty plates. The IGWT plate actually costs $0.50 more per plate to produce than does the standard plate.

    Even under those facts, however, I don’t see the Plaintiff winning under the Indiana Constitution’s equal privileges and immunities section. I suspect Indiana’s courts will view the General Assembly as having broad, if not unfettered, discretion in how it produces and distributes its license plates.

    An Establishment Clause challenge would be tough, but would seem like a much more plausible challenge than this privileges and immunities challenge.

  20. #20 fusilier
    April 25, 2007

    I mentioned on a different blog (or maybe a different thread here) that My Beloved and Darling Wife and I – religious fanatics both of us – keep looking for an “All Others Pay Cash” tag.

    On a just-slightly-less snarky note, we have noticed that these IGWT tags do serve a public good: they identify the worst drivers.

    fusilier
    James 2:24

  21. #21 MJ Memphis
    April 25, 2007

    Now, not that I think any state is *quite* stupid enough to try this (I’m looking at you, Mississippi…), I think a more interesting case would be if a state were to offer, as the only standard plate available without extra charge, something similar to the IGWT plate in this case.

  22. #22 raj
    April 25, 2007

    I am sorry, Mr Brayton, but let’s understand something. If the state had had a section on its license plates that said “insert your comment here,” no problem. That’s what decals are for.

    But the state didn’t. And that is why the state is–in my opinion–in deep doo-doo.

  23. #23 Fastlane
    April 25, 2007

    Doesn’t taxpayer standing (currently) give one standing to file suit in this case also? As an atheist, if I were living in that state, I would be subsidizing the message.

    I know this may change when the SCOTUS rules on standing soon, but at the moment, it would seem that that is another angle to take in looking at this.

    Cheers.

  24. #24 Andy
    April 25, 2007

    So what are we ever to do with all the currency in the U.S that has the phrase “In God We Trust” ? People need to get real and worry about things that matter instead of all this trivial law suits about what might be “fair” when it REALLY does not even affect aything!

  25. #25 Michael LoPrete
    April 25, 2007

    Andy,

    Please reread the article. No one wants to stop production of the IGWT. Indiana law requires that classes of people are not treated unequally. Right now, buyers of the IGWT specialty plate get a benefit withheld from buyers of any other specialty plate. The suit merely asks that the government follow the law. I don’t think that’s too much to ask.

    And as for whether it affects anything: Over 500,000 plates have been issued. Six of the 15 dollars that represents the standard administrative fee for specialty plates goes directly to road maintenance. That’s $3,000,000 of additional funds to keep Hoosier roads safe; is that nothing? How about those other nine dollars? They go to the BMV commission, so that’d be $4,500,000 that now has to be paid by the general taxpayer which should have been covered by those desiring specialty plates. That too is nothing?

  26. #26 Fastlane
    April 25, 2007

    Minor nitpick. Some of us DO want to get IGWT off money, and under gawd out of the pledge of alliegience.

    Not so much because they are offensive in and of themselves, but because with the excuse of ‘ceremonial deism’, we get a bunch of mouth breathing religionists that claim we are a xian nation because of these things….

    It’s lose-lose for us non-believers. So I figure if I gotta put up with a bunch of religious crap all the time anyway, I can at least do my best to prevent the government from sanctioning it in any way.

    Cheers.

  27. #27 mc
    April 25, 2007

    “In God We Trust” is our national motto. It replaced E Pluribus Unum, so why don’t we just call it a draw. Call it a specialty plate, charge a fee, and send the money to the federal government. After all IT IS the nation’s motto. Stop whining and wasting all of our time, energy and taxpayers monies tying up an over burdened court system to fight a frivolous issue. Don’t we have better things to do. If you don’t want the plate don’t get it and guess what, you won’t have “In God We Trust” on your car.

  28. #28 MJ Memphis
    April 25, 2007

    “Call it a specialty plate, charge a fee, and send the money to the federal government. After all IT IS the nation’s motto. Stop whining and wasting all of our time, energy and taxpayers monies tying up an over burdened court system to fight a frivolous issue.”

    Actually, if you bothered to read the complaint, helpfully furnished in full above by Michael LoPrete, the plaintiff is not trying to get rid of the IGWT plate, he is challenging the administrative fee portion of the specialty plate fee which he (and other purchasers of non-IGWT specialty plates) has to pay, but which purchasers of the IGWT plate do not have to pay. So the plaintiff is actually pursuing a lesser remedy than the one you are proposing.

    Regarding the “frivolous” nature of the lawsuit, I would say the suit is not at all frivolous, but the political posturing of the Indiana government is very frivolous.

  29. #29 Michael LoPrete
    April 25, 2007

    “Stop whining and wasting all of our time, energy and taxpayers monies tying up an over burdened court system to fight a frivolous issue.”

    Had the government followed the law from the start, taxpayer funds here would not be lost. On the contrary, the government’s failure to follow its own constitution has effectively caused a 7.5 million dollar hole that must now be filled by the taxpayers.

    Maybe I’m not rich enough, but $7,500,000 is not a number that I call frivolous.

  30. #30 Bruce
    April 25, 2007

    How much for an “In FSM we trust” number plate?

    After all IT IS the nation’s motto.

    Sounds like “THIS IS A CHRISTIAN NATION” in drag…

  31. #31 jpf
    April 26, 2007

    For the curious, here’s Indiana’s license plate gallery with the IGWT plate. It’s attractive enough looking, but it would be very tempting to get one at no additional cost and alter the message. Blank out the “I” from “In” with some blue paint, append a white “o” and the whole issue becomes moot.

    Rev. BigDumbChimp:

    It costs us $30.00 bucks in SC for a “In Reason We Trust” license plate and like said above, the “In God We Trust” plates are the same cost as the regular ones.

    I had to check to see if he was joking about the “In Reason We Trust”. He’s not: SC DMV Plate Gallery (listed under “Secular Humanists of the Low Country Plate”, you need to be a card-carrying member to get one).

    I would commend South Carolina’s DMV, but they also have one for Bob Jones University and way too many NASCAR ones, which makes it all a wash.

    And on related Googling… I wonder how many cars parked at the Justice Department have this plate.