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'Rain God' Can Be Contested: 10th Cir. Corrects

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By Betty Wang, JD on June 18, 2013 3:55 PM

The Tenth Circuit revived an older lawsuit, allowing an Oklahoma man to be able to sue the state over their Indian "rain god" license place, which the court then ruled could actually be determined as an endorsement of religion.

The case of Cressman v. Thompson actually initially closed with a unanimous decision, but the Tenth Circuit is now releasing a corrected version of the opinion this month.

Keith Cressman initially sued state officials in 2011, claiming that Oklahoma’s license plate, which depicted a famous sculpture of a Native American aiming his bow and arrow at the sky to bring down rain, was an unconstitutional endorsement of Native American religion. The district court had dismissed the case in May 2012, but now the Tenth Circuit Court of Appeals is reinstating it.

Cressman is a pastor, and while he stated that he was proud of the heritage of the state, he did not find it appropriate nor want the sculpture displayed on the back of his car. He had complaints that argued that he would need to pay fees for the state license plate. Also, because it was illegal to cover up your license plate, this involved additional fees or purchasing a specialty license plate, with a more expensive renewal fee.

The “Sacred Rain Arrow” sculpture featured on the license plates was expressing a message that was contrary to Cressman’s religious (Christian) beliefs, and the Tenth Circuit’s decision agreed with this. They also found that he had alleged sufficient facts to suggest that the license plate conveyed a particular message, and ultimately the court ruled that he stated a plausible compelled speech claim.

In the famous landmark case of Wooley v. Maynard, also involving the unconstitutionality of a license plate, the issue of compelled speech involves two substantive questions. First, does displaying the license plate image constitute symbolic speech that qualifies for First Amendment protection? Second, if so, does the requirement of displaying the license plate violate the party’s First Amendment rights?

Ultimately, the Tenth Circuit determined that this was a sufficient compelled speech complaint. Firstly, a license plate depicting the sculpture that inadvertently may suggest an endorsement of Native American religion is considered symbolic speech. Secondly, also as cited in, Axson-Flynn v. Johnson, the First Amendment’s proscription of compelled speech didn’t necessarily need to turn on any ideological content of the message. But, rather that the constitutional harm came from being forced to speak, rather than to remain silent.

This was a violation that occurred regardless of whether or not the speech was ideological.

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