- The Washington Times - Friday, April 26, 2002

Sometimes big things come in small packages. A recent appeals court decision preserving a "Choose Life" specialty license plate program that used the fees to support adoption is one of them.

A Louisiana statute allows sale of specialty "Choose Life" automobile license plates. A committee of adoption advocates makes recommendations for using the $25 specialty plate fee to help nonprofit organizations providing adoption services. Several taxpayers Planned Parenthood of Louisiana and a local chapter of the National Council of Jewish Women challenged the statute.

The plaintiffs said this program was viewpoint discrimination because it did not make available plates promoting other choices. (Would any drivers really want "Choose Death" on their bumper?) The plaintiffs also said that even making "Choose Life" plates available amounted to promoting "Christian fundamentalism." They apparently came to that conclusion because representatives of groups such as Concerned Women for America helped decide where to direct the specialty plate fees.

You'd think the license plates were emblazoned with CWA's web site or something. If "Choose Life" is religious at all, it's certainly not specifically Christian. The National Council of Jewish Women ought to know that "Thou shalt not kill" is in their Old Testament Scripture, too. And besides, the fees went not to groups promoting religious doctrine but to those offering adoption services.

While the legal issue may be free speech, the political issue is abortion. Those who in this case tried to stifle privately funded pro-life speech tried, in the 1991 case Rust vs. Sullivan, to unshackle government funded pro-abortion speech. They opposed a regulation limiting abortion advocacy by government-subsidized doctors. That regulation, they said, was a "gag rule." They don't want to protect speech, they want to protect abortion.

Rather than jump into the middle of these issues, however, the appeals court first asked whether judges, rather than others, such as legislators, should tackle them. Judges are not appointed to speak to every issue, settle every controversy, answer every question and referee every debate. They are not the fall-back default for those who bomb out in the political process or the running back for those who want to punt the difficult issues.

Maintaining this proper role for judges requires rules for the parties and issues coming before them. Those who want judges, rather than legislators or anyone else, to address their issues must have legal "standing" to get into court by showing that their particular legal rights have been violated. It is not enough for them just to have a beef, a bone to pick, or a claim so general that practically anyone could make it. As the Supreme Court put it in a 1952 decision, a plaintiff must show "that he has sustained or is immediately in danger of sustaining some direct injury … not merely that he suffered in some indefinite way in common with people generally."

The appeals court addressing this case has a similar rule. Quoting one of its 1999 decisions, the court said that "the injury alleged by a plaintiff for standing purposes must be 'concrete and particularized and…actual or imminent, not conjectural or hypothetical' to pass constitutional muster."

The plaintiffs in this case obviously opposed the "Choose Life" program. As legislators, they would have voted against the statute allowing it. But not getting their way on that political issue is simply not a "concrete" or "imminent" or "direct" legal injury. They paid no fees for the "Choose Life" plates. No one forced them to put the plates on their cars. Seeing the words "Choose Life" on a car bumper did nothing more to these pro-abortion zealots than make them grumble, grind their teeth a bit, and perhaps think about the issue from another point of view. That's a good thing, not a bad thing, and it's hardly the stuff of judicial "cases" or "controversies" that judges must deal with.

As the appeals court explained, specialty plates cost no more to manufacture than non-specialty plates. Those choosing specialty plates not only pay the regular automobile licensing fee, but also the $25 specialty plate fee, and an extra $3.50 for administering the specialty plate program. Those who don't want to choose life don't pay a dime extra for this program. All that's left is their disagreement with the program. It takes more than a gripe to get into court and more than a contrary opinion to make something unconstitutional.

The people, not judges, are responsible for political agendas. This case shows how much depends on whether judges understand their proper role. It's no wonder the far-left want activist judges willing to tackle issues properly left to the people. And it's no wonder why they fight so hard against President Bush's nominees who know that the people, not judges, should run the country and define the culture.


Thomas L. Jipping is a senior fellow in legal studies at Concerned Women for America.

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