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Originally published: 2014-02-14 17:19:44
Last modified: 2014-02-15 09:15:28

'Choose Life' plate again ruled unconstitutional

by Anna Oakes

A "Choose Life" license plate approved by the N.C. General Assembly in 2011 did not withstand the scrutiny of the nation's second highest court, which ruled the tag as unconstitutional in the absence of a pro-choice plate.

The U.S. Court of Appeals for the Fourth Circuit ruled in a unanimous 3-0 opinion Feb. 11 that "issuing a 'Choose Life' specialty license plate while refusing to issue a pro-choice specialty plate constitutes blatant viewpoint discrimination squarely at odds with the First Amendment."

The court heard arguments in the case last fall in the state's appeal of a U.S. District Court decision in December 2012. U.S. District Court Judge James C. Fox also ruled that the plate was unconstitutional.

The Republican majority of the General Assembly in 2011 approved the "Choose Life" plate along with several other specialty plates as part of House Bill 289. According to the bill, three-fifths of "Choose Life" plate proceeds would be transferred to the Carolina Pregnancy Care Fellowship for distribution to nonprofits for pregnancy counseling and other services -- excluding organizations that provide or give referrals for abortions.

Both houses of the legislature defeated amendments that would have added a "Respect Choice" option to the list of specialty plates.

"North Carolina contends that it may so discriminate because specialty plate messages constitute pure government speech free from First Amendment viewpoint-neutrality constraints. With this, we cannot agree," the Fourth Circuit ruling stated.

The American Civil Liberties Union of North Carolina Legal Foundation brought suit in U.S. District Court in September 2011 "on behalf of North Carolinians seeking a specialty license plate that supports a woman's right to reproductive freedom." The office of N.C. Atty. Gen. Roy Cooper appealed the District Court decision to the Fourth Circuit in January 2013.

"As the court reiterated today, the government cannot create an avenue of expression for one side of a contentious political issue while denying an equal opportunity to citizens with the opposite view," said ACLU-NCLF Legal Director Chris Brook in a statement. "We would have made the exact same argument if the situation was reversed and the state planned on issuing a pro-choice plate while not offering one expressing the opposite point of view."

Asked if the state would appeal to the U.S. Supreme Court, Noelle Talley, spokeswoman for the Attorney General's Office, said the office is currently reviewing the Fourth Circuit ruling.

N.C. House Rep. Jonathan Jordan of Jefferson and N.C. Sen. Dan Soucek of Boone voted for the bill approving the "Choose Life" tag in 2011, with both Republican representatives also voting against amendments that would have added a "Respect Choice" plate.

Jordan said Friday that he had no comment on the Fourth Circuit decision. Asked whether he thought the General Assembly would reconsider the inclusion of a "Respect Choice" plate in addition to a "Choose Life" plate, Jordan said, "I can't speak for what the legislature may or may not consider."

Soucek could not be reached for comment as of presstime Saturday, but in 2012 he characterized the U.S. District Court ruling as "puzzling" and "an overstepping of the courts."

"Choose Life" license plates are promoted by an organization called Choose Life America Inc. According to the organization's website, "Choose Life" plates are available in more than two dozen U.S. states.

The N.C. Values Coalition published a statement on its website in response to the Fourth Circuit ruling, urging supporters to contact Cooper's office in support of an appeal.

"The ruling was issued by a court that has been packed with Obama appointees and is now decidedly ruling against our conservative, Biblical values," the coalition said.