Who Speaks on Your License Plate?

The Supreme Court recently granted cert in Walker v. Texas Division, Sons of Confederate Veterans, Inc. The issues presented in that case are whether specialty license plates are a form of government speech, and whether Texas engaged in viewpoint discrimination when it rejected the SCV’s plate design featuring the Confederate battle flag. In a 2011 article in the Tulane Law Review, I wrote about license plate speech more extensively from a perspective slightly different than that presented in the Walker v. SCV case. My focus was on the question of Establishment Clause responsibility for religious messages on license plates. But the issues raised overlap significantly.

Imagine a state decides to display religious symbols or text on a license plate. South Carolina, for instance, created a specialty plate featuring a stained glass window with a superimposed cross and the words “I Believe.” Efforts to create a plate with a similar design failed in Florida. A federal court ultimately permanently enjoined South Carolina from issuing the plates.

Does a state’s specialty license plate program create a public forum for speech? If religious messages are displayed on the license plates, is the message purely private religious speech, or is it attributable to the state for Establishment Clause purposes?

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Worth A Thousand Words

In my last post, I discussed the question of attribution of messages. Today, I want to turn to the perception of messages, in particular, the visual perception of religious symbols. We all know the saying that a picture is worth a thousand words. Does it make sense, then, for courts to distinguish between the textual and the visual, and to consider the latter less troublesome than the former?

Let me start with the European Court of Human Rights (ECtHR) Grand Chamber decision in the Italian classroom crucifix case, Lautsi v. Italy. The Italian government argued “[w]hatever the evocative power of an ‘image’ might be . . . it was a ‘passive symbol’, whose impact on individuals was not comparable with the impact of ‘active conduct’.” Referencing an earlier decision of the German Federal Constitutional Court, the applicants conversely argued “[a]s to the assertion that it was merely a ‘passive symbol’, this ignored the fact that like all symbols—and more than all others—it gave material form to a cognitive, intuitive and emotional reality which went beyond the immediately perceptible.”

The Grand Chamber explicitly addressed the active/passive distinction, stating that “a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court’s view, particularly having regard to the principle of neutrality. It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.” Several concurring opinions also addressed the designation of the crucifix as a “passive” symbol. The concurring opinion of Judge Power agrees with the majority’s assessment of the crucifix as a passive symbol “insofar as the symbol’s passivity is not in any way coercive,” but her assessment is more nuanced. She “concede[s] that, in principle, symbols (whether religious, cultural or otherwise) are carriers of meaning. They may be silent but they may, nevertheless, speak volumes without, however, doing so in a coercive or in an indoctrinating manner.” In her framing, the question is not whether symbols can communicate like textual language—she asserts they can—but whether the message communicated is one that violates the negative religious freedom of the observer under the Convention.

The ECtHR is not alone in asserting that visual religious symbols are “passive”: In Lynch v. Donnelly, Chief Justice Burger said the crèche was “passive”; in Allegheny County, Justice Kennedy used the “passive” label to describe the holiday displays; Chief Justice Rehnquist said the Ten Commandments monuments (featuring text) in Van Orden v. Perry were “passive”; in his dissent in McCreary County, Justice Scalia said the Ten Commandments display was “passive”; and the lower courts use the “passive” symbols language as well.

The “passive” label is used in two ways (alternatively or cumulatively). It can be an empirical claim about the way in which visual images communicate. Passivity used in this way suggests less ability to communicate effectively than textual speech. Or “passive” is a label for a bundle of factors—including brief exposure to the symbol, a vague notion of minimal offensiveness, or other characteristics of the symbol that result in its presumed noncoerciveness. But these notions, unlike the empirical claim, go to the context and cultural meaning of the symbol. The empirical claim is false; the neuroscience of visual perception just does not work that way. The context-and-cultural-meaning claim is complex and the “passive” designation is at best an ambiguous and misleading label. Either way, courts here and abroad should stop using the “passive” label to describe religious symbols.

Thanks, Mark and Marc, for having me over!

Says Who?

Just in time for my post on symbols, the New York Times picks up the topic as well. So this is page A1 news! Of course, the underlying issue—the treatment of religious symbols in the public sphere—is hardly new. But it continues to be contested and rich and fascinating to study in comparative perspective.

Let me focus in this post on the question of attribution and the role of individual religious expression as opposed to expression of a religious viewpoint or identity by the state. The Times story opens with a Roman Catholic archbishop reminiscing about visiting Brussels and encountering there “the insistently secular bureaucracy of the European Union.” The story continues with the statement “’They let me in wearing my cross,’ the archbishop recalls.” Should he have been surprised? The story then continues with “the rude surprise” that ensued after the Commission objected to crosses on commemorative Euro coins. But should that be surprising?

None of this should be surprising to anyone accustomed to the U.S. concept of a free exercise and establishment distinction. Attribution is a central threshold question in the United States. We are very familiar with the attribution issue, because deciding whether the message is one attributable to the state or the individual determines whether the message is fully protected as a matter of free speech and free exercise or whether it is subject to Establishment Clause limits (which, by the way, does not automatically indicate a violation on the merits). When I talk about religious messages in the U.S. context, I must therefore distinguish between messages of the government and messages of individuals. (I’ve written about the intricacies of that question in the U.S. context in more detail here.)

This (from the U.S. perspective) familiar question of attribution is also gaining importance in the European context, and what makes it particularly interesting there is that we do not have this split into free exercise and nonestablishment in most systems. Take, for instance, the European Convention on Human Rights. The Convention itself contains no Establishment Clause-type provision. But in the case law of the European Court of Human Rights (ECtHR) an interesting development is occurring. Article 9 contains the Convention’s religious freedom provision. In Article 9(2) we find the limitations clause (also a typical feature of continental constitutions). It states: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

As I’ve discussed here, recent case law seems to be slowly developing the meaning of the limitations clause beyond the limit on individual free exercise that it originally was by focusing on the type of democratic society envisioned by the Convention. An indicator of that development is the ECtHR’s emphasis on pluralism in the sense of allowing citizens of all faiths as well as nonreligious citizens to flourish in a democratic society. And that leads to a limit to religious identification imposed on the state itself, as opposed to limit on the individual’s free exercise. In short, the clause might become a limit on the state’s identification with religion. This is where we ask the attribution question. And in a system without a distinction between free exercise and nonestablishment, the interesting point to me is that we’re now starting to ask this question in the first place.

So if we ask about attribution—a question that has not traditionally been asked in the European context precisely because those systems tend not to have an establishment clause-like provision—we ask about the state’s actions, or religious expressions, as distinct from the individual’s actions or messages. And if we set the problem up this way, we are creating a dichotomy that many European national systems do not recognize. And so I find myself wondering whether national concepts of the public sphere may be on a collision course with what the European Court of Human Rights appears to be tending toward.

“A Coat of Many Colors”

In this post, I want to pick up some of the themes I alluded to in my first post and respond to Marc’s observations here and Mark’s observations here. The title of this post is from Justice Harlan’s discussion of neutrality in Bd. of Educ. v. Allen, 392 U.S. 236, 249 (1968)(Harlan, J., concurring).

Marc points out the inherent uncertainty as to the meaning of “neutrality” within each system. Indeed, I agree that there is great indeterminacy in both systems; and there are different judicial and academic interpretations. In fact, one of the premises in my book was that – even though the term is used frequently in constitutional decisions in both countries – we don’t really know enough about what neutrality means in each system. Given this uncertainty, I advocated for a contextual inquiry into the meaning in each system before turning to a comparative perspective.

The German Federal Constitutional Court offered two noteworthy interpretations of neutrality in its landmark Crucifix and Headscarf decisions. In my last post, I quoted the Crucifix decision as saying that “[t]he state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in matters of faith.” In the Headscarf case, the court offered its most elaborate discussion of state neutrality to date, stating that

the religious and ideological neutrality required of the state is not to be understood as a  distancing attitude in the sense of a strict separation of state and church, but as an open and comprehensive one, encouraging freedom of faith equally for all beliefs. Article 4.1 and 4.2 of the Basic Law also contain a positive requirement to safeguard the space for active exercise of religious conviction and the realisation of autonomous personality in the area of ideology and religion. The state is prohibited only from exercising deliberate influence in the service of a particular political or ideological tendency or expressly or impliedly identifying itself by way of measures originated by it or attributable to it with a particular belief or a particular ideology and in this way itself endangering religious peace in a society. The principle of religious and ideological neutrality also bars the state from evaluating the faith and doctrine of a religious group as such.

So here we have an example of the court itself setting up different interpretations of neutrality. (Professor Markus Thiel – among other insightful observations – recently raised some interesting questions regarding the interpretive role of the Federal Constitutional Court in relation to academic scholarship in our exchange here.)

A quick final point about taxation, an issue raised in the comments to Mark’s post. One of the more striking features of the German system is the concept of “limping separation” that allows for certain benefits of state-recognized religious bodies – perhaps most notably from the U.S. perspective, the collection of church taxes by the state. Mark pointed out correctly that the German church tax may be avoided by resigning church membership. And, as some may remember, the German Federal Administrative Court last year addressed the question of resigning church membership (reported for example here). Moreover, under the jurisprudence of the European Court of Human Rights, while nonadherents may be taxed by an established state church for delegated state functions (such as keeping birth and death records, maintaining cemeteries or performing marriages) they may not be taxed for religious activities. I’ve written about some of those funding aspects in comparative perspective in my recent article “Transnational Nonestablishment” published in the George Washington Law Review and available online here.

And with that, I’ll leave Lautsi and symbols for next time.

If It Looks Like A Duck…?

Thanks so much, Mark, for the warm welcome! I want to use my time here to write about some comparative issues in law & religion.

A growing body of literature in comparative constitutional law discusses themes of constitutional convergence. Do constitutional provisions converge across legal regimes? Do international human rights norms cause them to do so? These and related questions are enormously rich and thought-provoking, and the literature is expanding and getting increasingly sophisticated. But another question is perhaps as interesting as the question of textual convergence: interpretive convergence. Imagine two courts charged with interpreting a functionally similar, yet textually different constitutional provision using the same term as their analytical basis. Does that indicate convergence?

Here is the context in which I have addressed this question. The German Federal Constitutional Court and the U.S. Supreme Court both use the language of “neutrality” in their respective interpretations of constitutional provisions concerning religion-state relations. It’s interesting that we have two constitutional regimes, with constitutional provisions that say “Congress shall make no law respecting an establishment of religion” and “there shall be no state church” respectively—neither of which, incidentally, mentions the word “neutrality”—and two courts interpreting these provisions and finding an underlying requirement of state neutrality.

Two examples: the U.S. Supreme Court in McCreary County (quoting Epperson) has this to say about neutrality: “The touchstone of Establishment Clause jurisprudence is the requirement of governmental neutrality between religion and religion, and between religion and nonreligion.” In the Classroom Crucifix Case, the German Federal Constitutional Court found that “[t]he state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in matters of faith.”

From a comparative perspective, it might be tempting to assume that the courts say the same thing about the relationship between church and state, because they are both using the term neutrality.  But we have to look beneath the surface. The meaning of neutrality Continue reading

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