With South Carolina set to offer "I Believe" license plates containing an image of a crucifix, might we want to concede that perhaps Justice Scalia was onto something in suggesting that nonsectarianism means monotheistic nosectarianism (as discussed here)? In defending these specialty plates, SC State Senator Lawrence Grooms (quoted in the NY Times) contended that such license plates are no different from the use of the motto "In God We Trust" on the currency. Indeed, everyone---including people who don't believe in a single (or any) God or if they do, don't trust Him---must use the currency, whereas only people who choose the "I Believe" plates need to do so. South Carolina offers a wide range of specialty plates (see full list here), including an "In God We Trust" plate and a "Sons of Confederate Veterans" plate, and makes it easy for organizations to order specialty plates. Thus, one plate is sponsored by the Secular Humanists of the Low Country, and includes the motto, "In Reason We Trust." (Note that the "I Believe" plate pictured above is from a failed effort to introduce them in Florida. The SC design is not yet available.)
Accordingly, it's plausible to defend the "I Believe" plates on the ground that South Carolina has created a forum for private speech, and that, given the diversity of plates, "I Believe" plates do not reflect government endorsement of religion. Were the Supreme Court writing on a blank slate, it might want to say that the Establishment Clause of the First Amendment permits a state to include the "I Believe" plates among an assortment that includes other religious and nonreligious messages, but that the Free Speech Clause of the same First Amendment also permits the state to take a more strictly separationist view by excluding all religious messages. In other words, we might want to say that there is some policy space between what the Establishment Clause and the Free Speech Clause respectively require. The Court has said something like this occasionally, and perhaps will clarify the law in this area in the pending Summum case (which I've discussed here, here, here and here).
For now, though, I want to assume away all of the questions about when government restrictions on speech in a public setting convert otherwise private speech into government endorsement, and suppose a hypothetical variation designed to put Justice Scalia's view in the best possible light: Suppose that the federal government replaced "In God We Trust" on the one dollar bill with "I Believe," and replaced the (somewhat creepy) pyramid-and-eye Great Seal with a crucifix image. Surely that would violate the Establishment Clause, even if "In God We Trust" does not. But how can explain this difference except as an application of Justice Scalia's view that government endorsement of generic monotheism is acceptable, while endorsement of any particular monotheistic sect is not?
One possibility, to which I referred in my FindLaw column last week, is that "In God We Trust" can be fit into the limited exception to the non-endorsement principle for "ceremonial deism," whereas the crucifix image cannot. But this strikes me as completely ad hoc. Or it strikes me as emphasizing the wrong aspects of the ceremonial deism exception. Here I would instead rely on a point made by Justice Breyer in his concurrence in the Van Orden case: There is a difference between maintaining the staus quo with respect to religious imagery and making a change.
If license plates had contained crucifixes for over a century, then perhaps that would now be widely seen as de minimis, in the way that "In God We Trust" largely is. After all, no one seems to pay any attention at all to the fact that our official calendar reckons years from the birth of Jesus. If it seems implausible that a crucifix on the currency could ever be seen as anything other than impermissible government endorsement of religion, then perhaps we should rethink the acceptance of official generic monotheism as well.
Posted by Mike Dorf