Tuesday, March 31, 2009

Governor Kaine Rebuffs ACLU, Allows Citizens to Choose Life (License Plates)

In 2003, then-Governor Mark Warner vetoed a bill that would have allowed Virginians to pay an extra $25 voluntarily to add "Choose Life" to their license plates. At the time Warner cited "potential First Amendment issues." Yesterday Governor Tim Kaine announced that he will NOT veto a similar measure, thereby reversing Warner's position and rebuffing the ACLU, Planned Parenthood, and other opponents of the bill who do not agree with the message conveyed by such plates. Virginia now joins 23 other states that allow their citizens to express themselves by purchasing such plates. After 1000 such plates are purchased, $15 from each such purchase will go to fund crisis pregancy centers that encourage alternatives to abortion, including adoption.

As Kaine rightfully pointed out, Virginia already allows citizens to choose from among numerous message they wish to include on their plates, including messages that others might not share. Examples include "Friends of Tibet," "Kids First," "Home Education," "Fraternal Order of Police," the "National Rifle Association," "Fight Terrorism," "Peace," etc. Moreover, a University of Virginia fan certainly does not agree with the message conveyed by a "Virginia Tech" license plate. Indeed, one might even say that the "Choose Life" plate is simply a natural extension Virginia's "Kids First" license plate, shown at the top of this post.

The objection by Planned Parenthood to such plates is strange indeed. After all, hundreds of thousands of Virginia taxpayer subsidize Planned Parenthood involuntarily, since the state legislature has seen fit to appropriate millions of dollars to Planned Parenthood each year, and the taxes that support these appropriations are by no means voluntary. (Try writing to your state legislator and asking for a pro-rata refund of your tax dollars that get funneled to Planned Parenthood!). If the legislature can coerce Virginians into supporting Planned Parenthood, why can't the state allow citizens to express an opposing view at their own expense on a license plate that they pay for.

I wonder if Planned Parenthood plans to seek a license plate expressing its view that abortion is sometimes a laudable choice ? I am not aware of any states that allow such plates. I can imagine some arguing that the Constitution would require the legislature to grant such a request. At the same time, the Supreme Court has repeatedly said that the state need not be morally neutral on the question of abortion, for instance. It may instead speak and encourage others to speak in favor of life. As Chief Justice Rehnquist put it in Rust v. Sullivan:
"To hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals, would render numerous Government programs constitutionally suspect. When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism. "
I do not mean to say that the question is a "slam dunk" for a legislature that rejects such a petition. After all, individuals who pay for license plates are not the government. Moreover, some might argue that the state has created a sort of "public forum" by creating a "vehicle" through which private individuals may express themselves. An analogy might be a public university, which by its nature invites the expression of all views, views that the state cannot selectively quash. This "public forum" analogy might fail for two reasons, though. First, a group whose petition for a particular license plate message is denied can simply display bumper stickers, which are far less expensive than such vanity plates, anyway, thus suggesting that any burden on speech is quite small. Second, the "public forum" analogy seems to prove too much; it would seem to require, for instance, a state that allows "Stop Domestic Violence" plates also to allow hateful plates expressing a contrary message. Given the state's (limited) association with the messages in question --- an association that makes a license plate message more attractive than bumper stickers --- one might conclude that the state has more leeway within the confines of its license plates than it does in a traditional public forum.

Thank you, Governor Kaine !