Ban on References to Deities on License Plates = Unconstitutional Viewpoint Discrimination

So holds today’s Second Circuit decision in Byrne v. Rutledge:

At issue here is the state ban on any combination [of letters and numbers on a personalized license plate] that “refer[s], in any language, to a … religion” or “deity.” Id. § 304(d)(4). The asserted purpose of the ban is to avoid the “distraction and disruption [that would] result[] from controversial speech” and to “disassociat[e] the State from speech” it does not endorse….

This Court concluded in Perry [an earlier precedent] that “vanity plates are a highly limited and extremely constrained means of expression,” that Vermont had not created a public forum by permitting the discourse possible on vanity plates, and that, accordingly, “a Vermont vanity plate is a nonpublic forum.” … [T]he government enjoys greater latitude in restricting speech in a nonpublic forum and may limit access or content “based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” …

In evaluating viewpoint neutrality within the context of a nonpublic forum, two guiding principles emerge. First, the government may permissibly restrict content by prohibiting any speech on a given topic or subject matter. Second, however, once the government has permitted some comment on a particular subject matter or topic, it may not then “regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Accordingly, while “a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum . . . the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.” …

Vermont freely permits motorists to use vanity plates for expression on a wide variety of subjects, including one’s personal philosophy, beliefs, and values, and similarly allows statements of self-identity, affiliation, and inspiration. Having opened the forum to these “permissible subjects,” … Vermont’s ban on “any refer[ence] to … a religion” or “deity” serves to “exclude” speakers who wish to comment upon those otherwise permissible subjects simply because they seek to do so “from a religious viewpoint.” …

Whatever its stated intent, Vermont’s ban on religious messages in practice operates not to restrict speech to certain subjects but instead to distinguish between those who seek to express secular and religious views on the same subjects. 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 express a secular perspective. 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. Similarly, Vermont freely permits statements of identity and affiliation — e.g., BUTCHER, REBEL, ARMYMOM, GOYANKS; statements of love and admiration — e.g., THXDAD, ILUVLYN, MI3SONS, MISUDAD; and statements of inspiration — e.g., BEWILD, THNKPOS, HOPE4ME, DARE2BU — provided the statements express secular messages and perspectives. Those who would express themselves on matters of self-identity or make statements of love, respect, or inspiration from a religious viewpoint, however, through plates such as REV 3 20, THE REV, UM REV, and PSALM48, are excluded from the forum. It is, in other words, the “[t]he prohibited perspective, not the general subject matter” that leads to the exclusion.

Appellant’s proposed plate — JN36TN — references the often-quoted Biblical verse, John 3:16, which reads in full: “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 district court made no factual findings as to Byrne’s intentions in referencing this passage — i.e., whether Byrne intended the message as a statement of personal belief or philosophy or simply as a statement of self-identity as a Christian or affiliation with the Christian church – and we need not dwell on them here. The critical fact is that Vermont permits use of state vanity plates for comment on all of these subjects, so long as the comment is from a secular perspective. The state rejected Byrne’s message only because it addressed these areas of otherwise permissible expression from a religious perspective. This the state cannot do. Having opened its forum to a wide variety of “permissible subjects,” 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. “[D]enial on that basis [is] plainly invalid.” …

As the Court explained in Rosenberger, religion is not just a “vast area” but “a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered.” Similarly, in Good News Club, the Court rejected the argument that speech labeled “quintessentially religious … cannot also be characterized properly as [speech] … from a particular viewpoint.” As the Court explained, “for purposes of the Free Speech Clause,” there is “no logical difference in kind between” one community group’s “invocation of [religion]” and another’s “invocation of teamwork, loyalty, or patriotism” as a “foundation for” discussion of many subjects….

[W]e need not and do not address bans on religious speech in forums limited to discussion of certain, designated topics, cf. DiLoreto v. Downey Unified Sch. Dist., 196 F.3d 958, 967-70 (9th Cir. 1999) (school district need not permit displaying of the Ten Commandments in nonpublic forum opened exclusively to commercial messages and closed to any “expressions of personal beliefs” because the Ten Commandments display “was not a statement addressing otherwise-permissible subjects from a religious perspective”), nor do we pass on whether bans on “[p]ure religious worship” may properly be characterized and upheld as subject-matter restrictions.

We simply find, consistent with Lamb’s Chapel, Rosenberger, and Good News Club, that Vermont’s ban on all religious messages in a forum it has otherwise broadly opened to comment on a wide variety of subjects, including personal philosophy, affiliation, and belief, serves not to restrict content but instead to discriminate against “a specific premise, [] perspective, [and] standpoint,” and, as such, is impermissible.

The court also concludes that Vermont’s program is unreasonable as applied to Byrne’s JN36TN plate: Vermont’s policy is to evaluate the religiosity of a plate based on the owner’s characterization of what the plate means to him (see the full opinion for a discussion of that policy). And this, the court reasons, is insufficiently connected to the state’s asserted interests in preventing “distraction and disruption [that would] result[] from controversial speech” and in “disassociat[ing] the State from speech” that it doesn’t endorse. But regardless of whether Vermont continues with such a policy of focusing on the owner’s subjective understanding of the plate, the court’s viewpoint discrimination reasoning means that the statutory ban on references to deities is unconstitutional.

Thanks to How Appealing for the pointer.