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Tenth Circuit Gives Man License to Sue Over 'Rain God'

The U.S. Court of Appeals for the Tenth Circuit has revived a lawsuit by an Oklahoma man who objects to the image of a Native American sculpture on the state's license plates because its message conflicts with his Christian beliefs. The Associated Press reports that the court decided that Keith Cressman "can sue the state over its Indian 'rain god' license plate, ruling that the depiction of a noted sculpture on 3 million license plates could be interpreted as a state endorsement of a religion." (Turtle Talk, the blog for the Indigenous Law and Policy Center at Michigan State University College of Law, has the filings in the case.)

Oklahoma's license plate, unveiled in 2008, depicts artist Allan Houser's sculpture "Sacred Rain Arrow." According to Cressman's suit, the sculpture is based on a Native American legend and shows an Apache warrior shooting an arrow into the sky so that the "rain god" or "spirit world" would answer prayers for rain in a time of drought.

Cressman claims in his suit that the sculpture tells "the story of a Native American who believes in sacred objects, multiple deities, the divinity of nature, and the ability of humans to use sacred objects to convince gods to alter nature." Its message, the suit says, "promotes pantheism, panentheism, polytheism, and/or animism and promotes particular Native Americans' social and cultural practices that accept these ideas."

Cressman, the Tenth Circuit opinion says, "adheres to historic Christian beliefs," including the principle that "there is only one true God." He "refrains from adopting or endorsing any message he believes might imply his approval of contrary beliefs, such as that God and nature are one, that other deities exist, or that 'animals, plants, rocks, and other natural phenomena' have souls or spirits."

Unwilling to display the image of the "Sacred Rain Arrow" sculpture on his car, Cressman opted for specialty license plates, which cost more and required renewal fees. Cressman claims that, to avoid the additional fees, he considered using the standard license plate and covering the offending image, but was told by state officials that he could be fined for doing so.

Cressman filed a lawsuit in 2011 against a number of state officials, alleging violations of his First and Fourteenth Amendment rights. A federal district court dismissed the suit in May of 2012, finding that Cressman had failed to state a "compelled speech" claim under the First Amendment.

The Tenth Circuit on Tuesday reversed the order dismissing Cressman's complaint, finding that he plausibly alleges a claim of compelled speech under the U.S. Supreme Court's ruling in Wooley v. Maynard -- a 1977 case in which a Jehovah's Witness challenged New Hampshire's use of the state motto, "Live Free or Die," on its license plates. In that case, the court found that the state could not force individuals to either "use their private property as a 'mobile billboard' for the State's ideological message" or pay a criminal penalty.

The opinion discusses whether the display of the license plate constitutes "symbolic speech" that qualifies for First Amendment protection, and whether it conveys a "particularized message." Symbolic speech claims, the court said, "depend on circumstances and context."

"Perhaps few viewers of the Oklahoma license plate image would perceive the particularized message Mr. Cressman alleges. But at this stage, without any evidentiary development, we must accept his allegations otherwise as true," the opinion states.

The circuit held that Cressman has also "plausibly alleged that he is compelled to speak because the image conveys a religious/ideological message, covering up the image poses a threat of prosecution, and his only alternative to displaying the image is to pay additional fees for specialty license plates that do not contain the image."

Cressman, the panel court concluded, "has alleged sufficient facts to suggest that the 'Sacred Rain Arrow' image on the standard Oklahoma license plate conveys a particularized message that others are likely to understand and to which he objects."

Posted by Laurel Newby on June 12, 2013 at 04:39 PM | Permalink | Comments (4)

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