The 2nd Circuit recently ruled that a Vermont ban on religious "vanity" plates constituted a free speech violation. Specifically, 23 V.S.A. § 304(d)(4) prohibits the issuance of special number plates with the following combination of letters or numbers:
Combinations of letters or numbers that refer, in any language, to a race, religion, color, deity, ethnic heritage, gender, sexual orientation, disability status, or political affiliation; provided, however, the commissioner shall not refuse a combination of letters or numbers that is a generally accepted reference to a race or ethnic heritage (for example, IRISH). (emphasis added)
The State interpreted the statute as requiring a ban on any combination with religious "meaning" and contended they were thus authorized to ban not only those plates that overtly and obviously referenced religion -- i.e., those the State referred to as "objectively religious" -- but also those plates that were meant by the registrant to embody a religious meaning no matter how cryptic the combination of letters and numbers might seem to a casual observer.
Plaintiff applied for Vermont plate "JN36TN," which he intended as a reference to the Bible verse, John 3:16. The State denied his application on the ground that the requested plate referred to religion in violation of § 304(d)(4). Plaintiff sued, asserting First/Fourteenth Amendment violations.
The State contended that the statute in question could be understood as a permissible ban on a topic or subject matter -- religion. Plaintiff, in contrast, argued that the law amounted to unconstitutional viewpoint discrimination because it barred expression on otherwise permissible topics such as personal philosophy or beliefs solely on the basis of its religious perspective. Relying principally on Perry v. McDonald, 280 F.3d 159 (2d Cir. Vt. 2001) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], the district court found that the state law constituted a permissible viewpoint-neutral and reasonable regulation on speech in a "nonpublic forum." However, in Byrne v. Rutledge, 2010 U.S. App. LEXIS 20825 (2d Cir. Oct. 8, 2010) [enhanced version / unenhanced version], the 2nd Circuit reversed, holding that Vermont's ban on all vanity plate combinations that "refer, in any language, to a . . . religion" or "deity" constituted unconstitutional viewpoint discrimination.
Following Perry and analyzing the Vermont vanity plates as a nonpublic forum, the 2nd Circuit cited a trilogy of Supreme Court cases; Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (U.S. 1993) [enhanced version / unenhanced version], Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (U.S. 1995) [enhanced version / unenhanced version], and Good News Club v. Milford Cent. Sch., 533 U.S. 98 (U.S. 2001) [enhanced version / unenhanced version], each addressing blanket bans on religious messages and each concluding that such bans constituted impermissible viewpoint discrimination. The 2nd Circuit stated:
We begin with the unchallenged proposition, amply supported by the record, that 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," the question before us is whether 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." We answer in the affirmative.
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.
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Vermont contends that because the law bans "all speech on" religion "whether positive, negative, or neutral" it is, "by definition viewpoint-neutral." In the context of restrictions on all religious speech, this argument has been expressly considered -- and rejected -- by the Supreme Court.