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Clarence Thomas Sides with Liberals as Supreme Court Rules Against Texas Confederate Flag License Plates

The pro-slavery Confederate flag flies proudly at the South Carolina State House, even as the American flag there was lowered to half-staff in mourning of the 9 black worshippers massacred by a racist gunman at a Charleston church on Wednesday.

The pro-slavery Confederate flag flies proudly at the South Carolina State House, even as the American flag there was lowered to half-staff in mourning of the 9 black worshippers massacred by a racist gunman at a Charleston church on Wednesday.

Arch-conservative Supreme Court Justice Clarence Thomas joined his liberal colleagues in a rejecting a claim that Texas violated the First Amendment by refusing to allow license plates emblazoned with the pro-slavery Confederate flag.

Ruling 5-4 in Walker v. Texas Division, Sons of Confederate Veterans, the nation’s highest court asserted that license plates constitute government speech, not personal speech, and are thus not subject to First Amendment challenges. Sons of Confederate Veterans, a group of descendants of participants of the failed 1861-1865 secessionist Civil War waged to protect the right of white Southerners to own slaves, had applied for the license plates but was denied by the state, which argued it has a right to censor government speech.

Sons of Confederate Veterans claimed the plates are constitutionally protected free speech and that Texas was discriminating against the group by refusing to issue them. But according to Justice Stephen Breyer’s majority opinion, “when government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”

“Texas license plates are, essentially, government IDs. And issuers of ID ‘typically do not permit’ the placement on their IDs of ‘messages with which they do not wish to be associated,'” Breyer wrote. He was joined in the majority by Justices Thomas, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg.

Dissenting were Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Samuel Alito, who wrote that the majority opinion “passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing.”

Texas allows hundreds of specialty license plates, honoring everything from ‘God’ to guns to the Dallas Cowboys football team. Justice Alito called such plates “little mobile billboards on which motorists can display their own messages,” rejecting the notion that a state-issued “Rather be Golfing” plate constitutes a government endorsement.

Nine other Southern states—Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee and Virginia, all former slave-owning states—issue special license plates honoring their Confederate past and the Sons of Confederate Veterans. Thursday’s Supreme Court decision means any of these states may ban pro-Confederate license plates, although some are highly unlikely to do so anytime soon. It was only in 2013, for example, that Mississippi formally ratified the 13th Amendment, which was approved by Congress in 1864 and banned slavery in the United States.

On Wednesday night, a racist white gunman who wore South Africa’s white supremacist apartheid-era flag on his jacket murdered nine black worshippers at a prayer meeting in Emanuel AME Church in Charleston. To mourn the victims, state officials lowered the American flag flying over the State House to half-staff.

Meanwhile, a few feet away, a Confederate flag, first flown in 1962 in defiance of the burgeoning civil rights movement, waved proudly at the top of its pole, not lowered an inch, a reminder to people of color—and conscience—everywhere, critics said, of how far America still has to go to heal festering racial wounds.

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