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The battle over "Choose Life" license plates has been busy of late, but those seeking guidance on their legality may be just as confused as ever.

Courts in Arizona and South Carolina have recently ruled against the specialty plates, which fund organizations that promote adoption and aid women with unwanted pregnancies, while Arkansas and Ohio are moving ahead with the plates, and a lawsuit has stalled them in Tennessee.

In a September 26 decision, a federal judge upheld Arizona's denial of "Choose Life" plates on the grounds that license plates are government speech, and the state reasonably acted "to avoid the appearance (of) political favoritism in an otherwise nonpublic forum and maintained state neutrality on the issue, giving neither side a leg up in this hotly debated public question."

Plates with the slogan in South Carolina were approved in 2001, but were last year found an unconstitutional form of "viewpoint discrimination" by the 4th U.S. Circuit Court of Appeals, since the state offers no plate promoting abortion rights. In January, the U.S. Supreme Court decided not to hear the case, and in late September, the state was ordered to pay the legal bills of Planned Parenthood, which brought the suit against the plates.

Over 1,200 applications for the plates are on hold in Tennessee, pending the outcome of a lawsuit challenging the plates at the 6th U.S. Circuit Court of Appeals, which will hear the case in early November. Abortion advocates filed the lawsuit on grounds of discrimination because the legislature refused to approve a pro-choice plate. Some state officials fear the appeals court will rule against the specialty plate system altogether, which raises thousands of dollars every year for various nonprofit organizations and universities.

A federal judge in Ohio avoided the First Amendment issues altogether in a September 27 ruling, throwing out the lawsuit against "Choose Life" plates on the grounds that the federal court has no jurisdiction over state tax collection, such as the fees charged for the license plates. Buyers of the "Choose Life" plate pay a $30-higher fee, $20 of which goes toward pregnancy centers. A three-judge panel of the 5th U.S. Circuit Court of Appeals came to the same conclusion in an April ruling regarding Louisiana's "Choose Life" plates.

The federal lawsuit against "Choose Life" filed by Tamara Brackett of Fayetteville, Arkansas, has been voluntarily dropped. Brackett had attempted to buy a pro-choice plate, which was unavailable, and filed the lawsuit on the grounds of discrimination.

What are the rules?
Where courts have understood the specialty license plate system as creating a public forum for individual speech, it generally has considered the state to be discriminatory when it does not open that public forum to individuals on an equal basis. This becomes even more relevant when the plates were approved by a state legislature, as in South Carolina and Tennessee, rather than produced by any nonprofit group able to obtain a set number of advanced sales. In these cases, any "religious intent" behind the specialty plates doesn't matter, since they function much like bumper stickers.

But if the plates are understood as state speech, as the judge in Arizona concluded, it is a different ball game. States are allowed to take a stand on issues, but not on particular religious viewpoints, which would violate the First Amendment's Establishment Clause. In this event, the intent and history of putting the message "Choose Life" on a plate becomes a deciding factor.

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October (Web-only) 2005, Vol. 49