Rolling Billboards for Sacred Rain
On the face of it, this sounds goofy: An Oklahoma pastor is suing the state because he says the image of a bow-shooting American Indian on the official license plate violates his religious rights.
But imagine this: Some state, for some reason, decides to put a stylized version of the Pieta on its license plates. When asked how that doesn't violate the First Amendment, state officials say the image could be any mother grieving over her dead son.
But it's not, and everyone who recognizes the image knows it. It's Mary and Jesus and demanding drivers to put the image on their cars would be a clear violation of the Establishment Clause, yes? Forcing every driver to turn their own personal cars into rolling billboards for Christianity?
Would anybody argue that such a practice be legal and acceptable?
That's something like what the Rev. Keith Cressman of St. Mark's United Methodist Church in Bethany, Oklahoma is claiming.
The basic state license plate these days shows an American Indian man, arrow nocked and bow pulled taut. (You can see it here.) What's remotely religious about that? The image is based on a sculpture that's famous in Oklahoma: "Sacred Rain Arrow." Which is already starting to sound religion-y.
It could be any Indian shooting up at anything in the air. A bird. An enemy on a mountain. A target. But it's not.
The sculpture was created by the late Alan Houser, who was a member of the Chiricahua Apaches. Some of the later tribal leaders became famous even among whites: Geronimo and Cochise.
Houser created his sculpture based on a traditional tribal story. He produced several of the striking bronze statues. One is at the Colorado Springs Fine Arts Center. The center's website explains:
"This monumental piece depicts a young Apache warrior shooting his arrow towards heaven with the hope of carrying a prayer for rain to the Spirit World. Houser represents the strength, dignity, beauty and spirituality of his people. Sacred Rain Arrow was the centerpiece of the Olympic Village at the 2002 Olympic Winter Games, welcoming 3,500 athletes and officials from 80 nations."
Another version is in Tulsa, at the Gilcrease Museum of Art, where it has become one of the state's iconic images. In 2009, it got picked to be used on license plates.
So what's Cressman's beef? The tale behind the statue is a bit of American Indian religion -- a prayer as faith-related as the Pieta. And Cressman said the state was forcing him to turn his car into a rolling billboard for a faith in which he does not believe. He wasn't allowed to cover the portion of the plate with the image. Paying for a specialty tag with another image was money out of his pocket to remedy what he saw as a problem not his fault.
So he sued in federal court, saying that he did not want to appear to "endorse and express a message on his car that is contrary to and diametrically opposed to his sincerely-held religious beliefs."
The district judge tossed the suit, ruling that Cressman failed to make a case that showed a harm and a possible remedy. He appealed. And last week, in a 2-1 ruling, the 10th Circuit said that Cressman should get a trial.
The panel said nothing about whether the pastor would win his suit, only that it raises real issues that a court could remedy. The decision wound through various legal tests for what constitutes speech, (yes, images count), what constitutes a message conveyed by an image (you don't have to prove that everybody knows the story), a whether a plausible case might be made that there's an ideological message that the state is forcing on Cressman (yup).
If there's a trial, the specifics will get hashed out. And there's plenty of precedent for predicting various outcomes.
New Hampshire had its famous "Live Free or Die" motto on all of its license tags. Members of the Jehovah's Witnesses said forcing their cars to display that message violated their religious beliefs and therefore their Constitutional rights. In 1977, the U.S. Supreme Court agreed.
On the other hand, there have been lots of lawsuits about "In God We Trust" on money, "under God" in the Pledge of Allegiance, and sectarian prayers offered at various government events. These cases often founder on the legal idea of "de minimus," from the Latin saying "de minimis non curat lex," meaning "the law cares not for small things."
Courts rule that the harm or effect is so small that it really doesn't matter enough to create federal law.
But these complainants all got their days in court. And now, although the state can appeal again, it looks like Cressman may, too.