JUDGE FREDERIC N. Smalkin's decision this week in the so-called ''heritage'' license plates case generated the predictable outcry, but the fact is, the constitutional issue involved in the case could not be clearer: He simply ruled that if the state of Maryland chooses to issue special license plates to the Daughters of the American Revolution, then it cannot refuse to issue plates to the Sons of the Confederate Veterans.
Judge Smalkin's decision is so solidly grounded in Supreme Court precedent -- including a landmark ruling in the 1950s prohibiting Alabama from stigmatizing membership in the NAACP -- that it is hard to imagine that any judge, state or federal, Massachusetts or Mississippi, could have reached any other conclusion.
The state's criteria for issuing ''heritage'' plates were about as broad as you can get. Virtually any group registered under the law as a non-profit organization meets the qualifications to get special tags, for a slight additional fee, even if the order was as few as 25.
In this policy vacuum, when black legislators and ministers raised a brouhaha over the Confederate plates, Maryland Vehicle Administration authorities, doubtless mindful of who approves their budget, scurried to create an ad hoc policy and recalled the offending plates by in effect declaring the Sons of the Confederate Veterans to be public pariahs.
By accident of history over which I had no control, that large category includes me. Like tens of thousands in Maryland who had forebears who fought in the Confederate Army, I assume I would qualify to put the tag on my car. For many of the same reasons put forward by the black legislators and ministers, I choose not to do so, but I still do not wish to be told by a state bureaucrat that I cannot do so.
Let's assume, for the sake of argument, that an organization calling itself the Sons of Africa applied for ''heritage'' plates which featured the generic red, white and green flag of Africa. Would anyone argue that the state could refuse to issue these on the dubious grounds that the colors might ''offend'' someone else? And don't think it couldn't happen in, say, Gov. Kirk Fordice's Mississippi.
Those who supported the MVA's decision to recall the Confederate plates, and who now criticize Judge Smalkin for overruling it, have put forward many irrelevant and spurious arguments. They ask, what's to stop the Ku Klux Klan from applying for plates which feature a hooded figure? Or the Aryan Nations from seeking plates with swastikas?
To brave the brickbats
Well, insofar as I'm aware, neither of these swinish organizations has ever registered as a non-profit organization. This is a reductio ad absurdum, but yes, if a duly qualified non-profit organization calling itself the Sons of the Third Reich should apply for plates with swastikas, then under the present broad criteria, the state would have no choice but to accommodate the request. It's hard to imagine anyone doing such a thing, but if he were willing to brave brickbats being thrown at his car, then he certainly has a constitutional right to make a fool of himself.
Equally specious is the hand-wringing lament from some critics -- including, it is sad to note, The Sun -- that the state may now have little choice but to stop issuing all specialized license plates as the price of getting the 78 Confederate tags off the road.
Nonsense. Any resourceful legislative assistant could draft a neutral bill that would permit issuance of special plates to, say, environmental organizations such as the Chesapeake Bay Foundation and yet exclude organizations based exclusively on ethnic or ancestral factors.
The key to the success of the legislation would be the careful crafting of non-discriminatory criteria. For example, there's no reason for the MVA to end the present practice of issuing special plates to college alumni. But in so doing, it could not issue plates to alumni of Towson State and at the same time deny them to alumni of Morgan State.
Should the state attempt to act in such a palpably discriminatory manner, we can take comfort that Judge Smalkin would swiftly and summarily instruct the state to issue the Morgan alumni plates -- exactly as he did in the Sons of the Confederate Veterans case.
Ray Jenkins is the retired editor of The Evening Sun.
Pub Date: 2/28/97