On Friday, November 7, the Seventh Circuit Court of Appeals reversed a lower court decision in Choose Life Illinois v. White holding that the state of Illinois acted unconstitutionally when it denied Choose Life Illinois’ petition for a “Choose Life” license plate. This decision comes just weeks after the U.S. Supreme Court allowed to stand a Ninth Circuit decision declaring the same kind of state action unconstitutional.
Choose Life Illinois had complied with all of the requisite steps enumerated in state law for the application of a specialty plate—even collecting over 25,000 citizen signatures requesting the plate when it only needed to gather 800. Yet rather than granting the specialty plate as required under state law, Secretary of State White deferred to the state legislature—an action not indicated under the statute providing for specialty license plates. Because the state legislature did not enact legislation providing for the “Choose Life” plate, the Secretary of State denied the plate. Choose Life Illinois filed suit soon after.
The Northern District of Illinois saw through the ploy, labeling the state’s action in denying the plate as unconstitutional viewpoint discrimination. The state thereafter appealed to the Seventh Circuit.
As in all “Choose Life” cases, one major aspect of the decision was whether license plate speech constitutes speech by the government, or private speech by individuals. As in a recent Ninth Circuit decision, the Seventh Circuit concluded that license plate speech constitutes private speech.
That conclusion should have led to a decision decrying the state’s actions as unconstitutional. The state of Illinois made clear that it denied the plate because it dealt with the abortion issue. The Ninth Circuit had labeled such action as clearly discriminatory—denying a plate simply because its message dealt with subject matter the state wanted to avoid. Moreover, other controversial plates are allowed in Illinois—such as plates with environmental messages and plates containing “peace birds.” Both the Ninth and Fourth Circuits have acknowledged that denying a plate because of its subject matter, while allowing other plates with what could be seen as controversial subject matter (regardless of whether those other messages even relate to abortion), is clearly unconstitutional viewpoint discrimination. Once the state opens the license plate forum for plates of any type of political issue or opinion, it cannot then deny plates based on an issue the state wants to avoid.
The Seventh Circuit’s decision boils down to this: because no abortion-related plates have been issued in the state of Illinois, the state’s action in denying a “Choose Life” plate was not unconstitutional. But the Seventh Circuit’s decision leaves open an easily foreseeable problem: What happens if the state legislature does enact legislation providing for an abortion-related plate? A shift in the demographics of the legislature could lead to a plate promoting either side of the abortion debate. What then of the Court’s decision? If not for any other reason, the Court’s decision is a poor one because it relies on facts that could change with the next legislative session.
Attorneys for Choose Life Illinois have indicated they will seek rehearing in the case, and if that is denied, they will seek review by the U.S. Supreme Court.
AUL filed an amicus brief in the case on behalf of 18 adoption and pregnancy care centers in Illinois, and it is available at http://www.aul.org/xm_client/client_documents/briefs/ChooseLifeILvWhite.pdf. But in typical Seventh Circuit fashion, the Circuit denied the filing of the brief.
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Father in Heaven I pray that you move powerfully through the Holy Spirit to convict all hearts that are promoting this assault on human life that you have created. In the Holy and powerful name of our LORD and SAVIOR JESUS CHRIST. Amen