BILL ANALYSIS Ó AB 2253 Page 1 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 AB 2253 Page 2 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 AB 2253 Page 3 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 AB 2253 Page 4 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 AB 2253 Page 5 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. AB 2253 Page 6 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.) AB 2253 Page 7 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 AB 2253 Page 8 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.) AB 2253 Page 9 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.).) AB 2253 Page 10 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. AB 2253 Page 11 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.) AB 2253 Page 12 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 AB 2253 Page 13 None on file Opposition None on file Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334