BILL ANALYSIS Ó
AB 2253
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Date of Hearing: April 21, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2253
(Grove) - As Amended April 13, 2016
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT: SPECIALIZED LICENSE PLATES
KEY ISSUE: SHOULD CALVETS APPLY TO THE DMV TO SPONSOR SEVERAL
SPECIALTY LICENSE PLATES THAT INCLUDE A SERIES OF HISTORICAL
STATE AND FEDERAL MOTTOS?
SYNOPSIS
This bill, as proposed to be amended, requires the Department of
Veteran Affairs (CalVet), in consultation with the State
Treasurer, to apply to the Department of Motor Vehicles (DMV) to
sponsor the following historical state and federal motto license
plate programs: (1) E Pluribus Unum; (2) Liberty; (3) In God We
Trust; (4) We the People; and (5) Eureka! I have found it!
After CalVets has complied with the statutory requirements (e.g.
obtaining 7,500 applications), it may collect fees from the
applicants of that program which shall be deposited into a new
fund, the Veterans Housing and Homelessness Prevention Fund.
Proceeds from that fund would be distributed to the Veterans
Housing and Homelessness Prevention Program, an existing state
program, and used to pay for the development of supportive
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services for veterans living in those units that are funded by
the Veterans Housing and Homelessness Prevention Program.
Originally, this bill would have required CalVet to apply only
for an In God We Trust specialty license plate. And before that
version, this bill required the DMV to consult with In God We
Trust - America, Inc., to develop an In God We Trust license
plate. These prior versions were vulnerable to a number of
significant legal concerns, including whether they violated the
First Amendment of the United States Constitution -
specifically, the Establishment Clause and the Free Speech
Clause. Given that the author has taken several amendments to
include other specialty license plate programs and promote a
secular purpose, many of those legal concerns have been
addressed. This bill previously passed out of the Assembly
Committee on Transportation with a 15-0 vote. The bill is
author-sponsored, and has no opposition on file.
SUMMARY: Requires the California Department of Veterans Affairs
(CalVet) to apply to the Department of Motor Vehicles (DMV) to
sponsor several specialized license plate programs, including: E
Pluribus Unum; Liberty; In God We Trust; We the People; and
Eureka! I have found it! Specifically, this bill:
1)Requires the Department of Veterans Affairs (CalVet) to apply
to the Department of Motor Vehicles (DMV) to sponsor a
specialized license plate program for the following programs:
a) E Pluribus Unum
b) Liberty
c) In God We Trust
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d) We the People; and
e) Eureka! I have found it!
2)Establishes the Veterans Housing and Homeless Prevention Fund,
and provides that fees for these specialized license plates
shall be deposited into that fund.
3)Provides that funds, upon appropriation by the Legislature to
the Department of Veteran Affairs, are to support the Veterans
Housing and Homeless Prevention Program and the development of
supportive services for veterans living in those units funded
by the Veterans Housing and Homelessness Prevention Program.
EXISTING LAW:
1)Under the United States Constitution, provides that Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a
redress of grievances. (U.S. Const., 1st Amend.)
2)Provides that a specialized license plate shall have a design
or contain a message that publicizes or promotes a state
agency, or the official policy, mission, or work of a state
agency. (Vehicle Code Section 5154. Unless otherwise stated,
all further statutory references are to the Vehicle Code.)
3)Requires funds accruing to a sponsoring state agency from the
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sale of specialized license plates to be expended exclusively
for projects and programs that promote that agency's official
policy, mission, or work. (Section 5157.)
4)Allows a state agency to sponsor a specialized license plate
program if the agency complies with specified requirements.
(Section 5156.)
5)Prohibits DMV from establishing a specialized license plate
program for any agency until it has received no less than
7,500 paid applications for that agency's specialized license
plate. (Section 5156.)
6)Requires a state agency authorized to offer specialized
license plates to prepare and submit an annual accounting
report to the DMV by June 30. The report shall include an
accounting of all revenues and expenditures associated with
the specialized license plate program. (Section 5160.)
7)Establishes the Veterans Housing and Homeless Prevention Bond
Act of 2014. (Military and Veterans Code Sections 998.540 et
seq.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: In support of the bill, the author writes:
AB 2253 seeks to create an additional specialty license plate
option that includes our nation's motto, "In God We Trust.
There are currently 16 states that offer "In God We Trust"
license plates to their residents and this legislation will
add California to the list. "In God We Trust" became the
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United States national motto on July 30, 1956, shortly after
our nation led the world through the trauma of World War II.
These same words have been used on U.S. currency since 1864.
In light of these facts, I think it is completely appropriate
for Californians to have the option to have our national motto
displayed on their license plates if they so choose.
Given that some of the policy issues regarding license plate
programs were discussed in the previous committee in Assembly
Transportation Committee, this Committee's primary focus is on
the constitutional and legal issues confronting this bill.
As a starting point, the bill, as proposed to be amended,
requires the Department of Veteran Affairs (CalVet), in
consultation with the State Treasurer, to apply to the
Department of Motor Vehicles (DMV) to sponsor the following
historical state and federal motto license plate programs: (1) E
Pluribus Unum; (2) Liberty; (3) In God We Trust; (4) We the
People; and (5) Eureka! I have found it! After CalVets has
complied with the statutory requirements (e.g. obtaining 7,500
applications), it may collect fees from the applicants of the
program which shall be deposited into a new fund, the Veterans
Housing and Homelessness Prevention Fund. Proceeds from that
fund are distributed to the Veterans Housing and Homelessness
Prevention Program, an existing state program, and will be used
to pay for the development of supportive services for veterans
living in those units funded by the Veterans Housing and
Homelessness Prevention Program.
The bill, prior to the amendments, was vulnerable to a number of
legal concerns, including whether it violated the First
Amendment of the United States Constitution - specifically, the
Establishment Clause and the Free Speech Clause. Although the
bill, as proposed to be amended, takes significant steps to
address those concerns, this Committee reviews those
constitutional questions in turn.
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The Establishment Clause. The first issue is whether an "In God
We Trust" specialty license plate would survive Establishment
Clause scrutiny. The Establishment Clause and the Free Exercise
Clause of the First Amendment provides that the government
"shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof." (U.S. Const., 1st
Amend.) The Supreme Court's treatment of the religion clauses
has been "Januslike . . . [where one] face looks toward the
strong role played by religion and religious traditions
throughout our Nation's history . . . [and] the other [face]
looks to the present in demanding a separation between church
and state." (Van Orden v. Perry (2005) 545 U.S. 667, 683.)
Ultimately, the Supreme Court has held that in order to
reconcile these two faces, it must "neither abdicate [its]
responsibility to maintain a division between church and state
nor evince hostility to religion." (Id. at 683-84.) Thus, a
court will uphold government conduct that is situated in-between
religion and nonreligion. In order words, the ultimate
touchstone of the religion clauses is neutrality. (See McCreary
County, Kentucky v. American Civil Liberties Union of Kentucky
(2005) 545 U.S. 844, 860; County of Allegheny v. American Civil
Liberties Union Pittsburgh Chapter (1989) 492 U.S. 573, 593;
Epperson v. Arkansas (1968) 393 U.S. 97, 103-04.)
The Three-Prong Lemon Test. While the Supreme Court has used a
variety of tests to determine whether government conduct amounts
to an establishment of religion, the prevailing analytical tool
is the Lemon test. (Lemon v. Kurtzman (1971) 403 U.S. 602,
612-13.) Under a Lemon analysis, the court asks the following
questions about government conduct: (1) Does the government have
a secular legislative purpose for its conduct? (2) Does the
government conduct have no principal or primary effect of
advancing or inhibiting religion; and (3) Does the government's
conduct foster "an excessive entanglement with religion." (Id.
at 612-13; see Van Orden, supra, at 685; McCreary County, supra,
at 859.)
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First Prong: Secular Purpose. To determine whether there is a
secular legislative purpose for the government's conduct, the
question is whether the government has abandoned neutrality and
is "acting with the intent of promoting a particular point of
view in religion matters." (Corporation of Presiding Bishop of
Church of Jesus Christ of Latter-day Saints v. Amos (1987) 483
U.S. 327, 335.) In order to examine the legislative purpose,
"one takes account of the traditional external signs that show
up in the text, legislative history, and implementation of the
statute." (McCreary County, supra, at 862 (citing Santa Fe
Independent School District v. Doe (2000) 530 U.S. 290, 308).)
That is, one looks at the "plain meaning of the statute's words,
enlightened by their context and the contemporaneous legislative
history [and] the historical context of the statute, ? and the
specific sequence of events leading to [its] passage." (Edwards
v. Aquillard (1986) 482 U.S. 578, 594.) For example, the court
has "inferred [secular legislative] purpose from a change of
wording from an earlier statute to a later one" and "the
detailed public comments of its sponsor." (McCreary County,
supra, 862-863.) Additionally, the secular purpose "has to be
genuine, not a sham, and not merely secondary to a religious
objective." (Id. at 864.)
Although earlier versions of this bill do not appear to survive
the first prong, the proposed amendments appear to promote a
secular legislative purpose. In earlier versions, the bill
required the DMV to consult with In God We Trust - America,
Inc., to design and make available special interest license
plates. According to the In God We Trust - America, Inc.
website, the organization's mission is to promote patriotism by
encouraging elected officials to support the legal display "In
God We Trust" in every city, county chamber, and state capitol
in America. ( http://www.ingodwetrust-america.org/ ).
Additionally, the website states that "[t]he goal of this
mission is to keep God's name in America, and acknowledge and
affirm the role that faith in God plays in the public lives of
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the citizens in this country, and in the core values of our
nation." (Ibid.)
It seems safe to say that the earlier version of this bill
raised significant constitutional concerns under the
Establishment Clause. In the Assembly Transportation Committee,
the author amended the bill to remove In God We Trust - America,
Inc., and added amendments to require CalVets to sponsor an "In
God We Trust" license plate program, similar to the statutory
framework established for other specialty license plate
programs. Although the earlier constitutionally-questionable
version was amended out of the bill, it was unclear to this
Committee whether the new version of the bill (i.e. CalVets as
the sponsor of "In God We Trust" specialty license plate) was in
fact advancing a secondary secular legislative purpose that was
subject to a primary religious purpose. To address this
Committee's constitutional questions, and to ensure that the
author's purpose is secular and not religious, the author has
agreed to take amendments aimed at advancing the secular purpose
of promoting historical phrases and governmental mottos. As
proposed to be amended, this bill would allow the following
specialty license plate programs: E Pluribus Unum; Liberty; In
God We Trust; We the People; and Eureka! I have found it!
Accordingly, it appears that these amendments satisfy the first
prong of the Lemon test.
Second Prong: Principal or Primary Effect of Advancing or
Inhibiting Religion. Under the second prong of the Lemon test,
the analysis depends on whether, from the eyes of a reasonable
objective observer who is informed and familiar with the history
of the government practice, the government action has a primary
effect of advancing or disapproving of religion; that is, is the
government action likely to be perceived by adherents of the
controlling denominations as an endorsement of religion, and by
nonadherents as a disapproval of their individual religious
choices? (Vasquez v. Los Angeles County (9th Cir. 2007) 487
F.3d 1246, 1256.)
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Although earlier versions of this bill do not appear to survive
the second prong, the proposed amendments appear to not have the
primary effect of advancing or inhibiting religion. Similar to
discussion above, it was unclear to this Committee whether a
reasonable observer would take into account the prior versions
of this bill to view the current bill as a disapproval of a
nonadherent's religious choices. As previously stated, the
ultimate touchstone of the analysis is neutrality. The author
contends that the only reason she is promoting the "In God We
Trust" specialty plate is to promote the national motto. The
author believes that because this phrase is printed on our
currency, and was later adopted as the national motto by
Congress in 1956, there is no constitutional question. Although
the Supreme Court has never definitively held that the phrase
"In God We Trust" survives constitutional muster, a bill that
only promotes an "In God We Trust" specialty license plate,
particularly in light of this bill's previous versions,
potentially sends a signal to nonadherents that it disapproves
of their religious choices (as previously discussed). To
address these concerns (consistent with the ultimate touchstone
of neutrality), the author has agreed to take amendments that
also promote the following historical phrases and mottos,
including: E Pluribus Unum; Liberty; We the People; and Eureka!
I have found it! Accordingly, it appears that these amendments
satisfy the first prong of the Lemon test.
Third and Final Prong: Excessive Government Entanglement with
Religion. The last Lemon prong may be violated when the
government excessively entangles with a religious institution in
such a way that it: (1) interferes with the independence of the
government, (2) gives the religious institution access to
government or governmental powers not fully shared by
nonadherents of the religion, and (3) fosters the creation of
political constituencies defined along religious lines. (Lynch
v. Donnelly (1983) 465 U.S. 668, 688 (conc. opn. of O'Conner,
J.).)
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Although the earlier version of this bill would have raised
excessive entanglement concerns, the current version of the bill
and the bill as proposed to be amended do not appear to violate
the third prong of the Lemon test. As previously mentioned, the
prior version of the bill did raise the issue of excessive
entanglement. However, the bill, as proposed to be amended, is
unlikely to trigger this issue because CalVets-not In God We
Trust - America, Inc.-is tasked with the sole responsibility of
sponsoring the specialty license plate.
The legal doctrine on the Establishment Clause may not be
completely settled. It should be noted that although the Lemon
test has been the primary tool to analyze claims under the
Establishment Clause, the Court's jurisprudence on the
Establishment Clause appears to be changing. Indeed, the Court
in recent years has invoked a variety of tests, depending on the
factual situation. In certain times, the Court focuses on
whether the government conduct discriminates or accommodates
religion, while at other times, the Court looks at whether the
government's conduct is sufficiently secular, or historically
important. (Van Orden, supra, at 685-87; County of Allegheny,
supra, at 657-60 (conc. & dis. opn. of Kennedy, J.); Lynch,
supra, at 679.) However, neutrality still appears to be the
touchstone principle - a main feature behind the Lemon test.
Free Speech Clause: The Free Speech Clause of the First
Amendment provides that the government "shall make no
law?abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the
government for a redress of grievances." (U.S. Const., 1st
Amend.) Accordingly, the second issue that this Committee
analyzes is whether the Legislature's denial of certain
specialty license plates would infringe the speech of those
seeking the plate.
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Free Speech Clause: Government Speech. It is well-established
that the Free Speech Clause of the First Amendment restricts
government's regulation of private speech, and does not regulate
government speech. (Pleasant Grove City v. Summum (2009) 555
U.S. 460, 467.) Indeed, a government entity has "the right to
speak for itself?and to select the views that it wants to
express." (Ibid.) Last year, the Supreme Court extended the
government speech doctrine to specialty license plates designs.
(Walker v. Texas Division, Sons of Confederate Veterans, Inc.
(2015) 576 U.S. ___.) There, the Supreme Court held that
"[with] respect to specialty license plate designs, [a state] is
not simply managing government property, but instead is engaging
in expressive conduct [in part, because] specialty license plate
designs are meant to convey and have the effect of conveying a
government message." (Ibid.)
In light of the recent Supreme Court decision, it appears that
that the Legislature could determine which specialty license
plates to authorize without violating the First Amendment. In
other words, the Legislature could deny an "In God We Trust"
license plate (and grant other plates) without violating the
First Amendment.
Free Speech Clause: Compelled Speech. The third issue is
whether this bill amounts to compelled speech. Our courts have
long held that "the First Amendment stringently limits a State's
authority to compel a private party to express a view with which
the private party disagrees." (Ibid.) In certain instances,
compelled speech may be upheld, depending on the nature of the
speech and the state's interest in that speech. (See Riley v.
National Federation of Blind (1988) 487 U.S. 781, 796.) Given
that this bill does not compel drivers to carry a specialty
license plate, or compel drivers to associate with a message
that the driver does not agree with, compelled speech is not at
issue. (Walker, supra, at ___; see also Wooley v. Maynard
(1977) 430 U.S. 705, 717.)
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Final note: As a final note, the Legislature should consider
whether this bill-even as proposed to be amended-might still
signal a preference toward a religion or faith, even if that
expression has been used historically in this country. Supreme
Court Justice Elena Kagan has expressed the rationale for this
fundamental concept and limitation on government conduct, as
follows:
For centuries now, people have come to this country from
every corner of the world to share in the blessing of
religious freedom. Our Constitution promises that they may
worship in their own way, without fear of penalty or
danger, and that in itself is a momentous offering. Yet
our Constitution makes a commitment still more
remarkable-that however those individuals worship, they
will count as full and equal American citizens. A
Christian, a Jew, a Muslim (and so forth)-each stands in
the same relationship with her country, with her state and
local communities, and with every level and body of
government. So that when each person performs the duties
or seeks the benefits of citizenship, she does so not as an
adherent to one or another religion, but simply as an
American." (See Town of Greece v. Galloway (2014) 572 U.S.
___ (dis. opn. of Kagan, J.) (emphasis added).
REGISTERED SUPPORT / OPPOSITION:
Support
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None on file
Opposition
None on file
Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334