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Commentary: McMasters, Bauer are abusing offices in 'I Believe' fiasco

The oneE saving grace in the "I Believe" fiasco is that it shouldn't cost taxpayers much money to pick up the tab for the busybodies who brought suit against the political panderers who wanted to emblazon license tags with a cross-emblazoned stained-glass window and the words "I Believe."

Challenging those tags, after all, didn't exactly take a lot of legal heavy lifting - a fact that U.S. District Judge Cameron McGowan Currie certainly ought to keep in mind when she decides what level of fees to approve. The case law was so clear that a first-year law student probably could have put together the complaint.

Which of course is what makes this whole thing so outrageous.

There are a lot of church-state cases that are close calls. This was never one of them, and the roles played by the unanimous General Assembly, Lt. Gov. Andre Bauer and, worst of all, Attorney General Henry McMaster have been a textbook case of irresponsibility.

Now, I don't mean to say that allowing drivers to pick the "I Believe" tag instead of the apple for education tag or the shag tag or the "Gone Fishing" tag is an obvious violation of the Constitution. I personally have a hard time finding a problem with optional religious license plates in the words of the First Amendment - "Congress (and by later extension the states) shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." It seems to me that the courts have, over the years, stretched the definition of "establish" way beyond recognition, as our society has become further and further removed from the context in which it was added to the Constitution: Many Protestants had fled to the New World in order to escape an established Church of England, to which the government was inextricably linked.

The problem I see - and I consider it a significant problem - is the very idea of having any of those special-interest tags, which makes it more difficult for police to do their jobs, while at the same time encouraging people to think of license plates as bumper stickers and make silly arguments in court about how limiting the options somehow limits their right to free speech, or religion.

But the fact that I disagree with the courts' interpretation of the Constitution means nothing, because I am not the courts. And neither is our Legislature, which voted unanimously, and with record-breaking speed, to pass legislation that anyone who is even remotely aware of the clearly established precedent from the past half a century knew would be struck down as unconstitutional.

Mr. McMaster knows this, as Judge Currie noted in her opinion. His justification for going out of his way to intervene in support of the license tag law (he was not a party to the case, the departments of Motor Vehicles and Corrections having retained other counsel) instead of going out of his way to oppose the state's position, as he should have done, was that he is confident that the U.S. Supreme Court is going to someday change course on the establishment clause.

Perhaps he's right, though I've seen no indication that it will change except perhaps on the fringes, on those close-call cases of which this is not one. But it simply is not responsible for public officials to try to make their state a guinea pig unless the state has money to burn on a long-shot legal challenge or the law in question involves an important, substantive matter, or preferably both. Neither is the case here.

To read the complete column, visit www.thestate.com.

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