2nd Circuit Overturns Religious License Plate Restriction

Mark Hamblett

New York Law Journal

A state law that prohibits vanity license plates containing religious messages violates the Free Speech Clause of the First Amendment, the 2nd U.S. Circuit Court of Appeals ruled Friday.

The 2nd Circuit said a Vermont statute that barred a driver from obtaining a vanity plate referring to the Biblical verse John 3:16, "impermissibly restricts expression from a religious viewpoint."

Judges Amalya L. Kearse, Reena Raggi and Debra Ann Livingston said the Vermont law was fatally flawed because it distinguished between people who sought to express secular and religious views "on the same subject" in Byrne v. Rutledge, 07-4375-cv.

In 2004, Shawn Byrne sought to become one of 38,000 Vermonters with active vanity plates when he applied for one that would reference John 3:16, which reads, "For God so loved the world that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life." The plate would read "JN36TN".

But Byrne ran into the statutory ban on number and letter combinations that refer, "in any language, to a ... religion" or "deity," Vermont Stat. Ann.tit. 23, §304(d)(4).

He sued in federal court and, following the recommendation of Magistrate Judge Jerome J. Niedermeier, District Judge J. Garvan Murtha granted the state's motion for summary judgment.

At the 2nd Circuit, Vermont argued the law requires rejection of combinations that are "objectively religious" -- ones that makes an overt reference to religion, and "subjectively religious" -- those that are intended to make a religious reference that is not obvious to the casual observer.

In applying the statute, Department of Motor Vehicle clerks decide whether the vanity plate would violate the law by relying, in part, on the applicant's own statement on what the combination means to them.

Writing for the court, Livingston said that this policy of "looking to 'supplied meaning' has led to somewhat confounding results."

In the past, Vermont has denied as "objectively religious," requests for plates reading "SEEKGOD," "1GOD," "THE REV," and "KRISHNA."

But it is has allowed combinations that might appear to refer to a religion where the motorist has supplied a secular meaning, such as "GEMINI," (explained as a zodiac sign)," "BUDDHA," (explained as a nickname) and "KALI," (the name of the motorist's horse).

And at the same time, the state rejected the plate "BVM22," because the motorists explained it as a reference to 'Blessed Virgin Mary Perfection" and "JMJ1" because the motorist said it was intended to refer to "Jesus, Mary, Joseph 1."

"Under the current law, a motorist's personal philosophy, beliefs, and values are all permissible and frequent topics of expression -- Vermont has issued plates such as CARP DM, PEACE2U, LIVFREE, and BPOSTIV, among others -- provided the philosophies, beliefs, and values expresses a secular perspective," Livingston said. "Those who wish to express a personal philosophy belief or value that reflects, even only subjectively, a religious view -- e.g. PRAY, ONEGOD, SEEKGOD, have been prohibited from doing so."

In Byrne's case, she said, the state rejected his message "only because it addressed these areas of otherwise permissible expression from a religious perspective. This the state cannot do."

Once the state opened its forum to a wide variety of "permissible subjects," she said, "it cannot target for exclusion those who wish to comment on these same subjects on the grounds that they wish to do so from a religious viewpoint."

The court emphasized it was limiting its holding "to the context of a ban on religious messages."

"We neither question the state's ability to limit expression in a nonpublic forum to certain subject matters, nor disturb the prior holding of this court that Vermont's related ban on 'scatalogical subjects' effects such a permissible viewpoint neutral and reasonable restriction," she said, citing Perry v. McDonald, 280 F.3d 159 (2d Cir. 2001).

Jeremy D. Tedesco of the Alliance Defense Fund in Scottsdale, Arizona argued for Byrne.

Assistant Attorney General Eve Jacobs-Carnahan represented the State of Vermont. A spokesperson for the office said it was examining the opinion and weighing its options.