Pantheism or a commemoration of history?

Cressman v. Thompson, No. 14-6020 (10th Cir. Aug. 4, 2015).

President Jackson’s ethnic-cleansing policies expelled thousands of Native Americans out of the Deep South and into what became known as Indian Territory. These exiles were later joined by other tribes native to the Great Lakes, upstate New York, the Great Plains, and the Southwest. Indian Territory was thereafter combined with Oklahoma Territory, and together they were admitted to statehood in 1907 as Oklahoma. On the centenary of its statehood, Oklahoma decided to commemorate its history by changing its license plate. That plate now depicts the story of a young Apache warrior who fired into the heavens a sacred arrow carrying prayers for rain:

 Tenth Circuit appeal Oklahoma license plate Establishment Clause

Plaintiff Keith Cressman filed suit against Oklahoma over this license plate. Cressman asserts that forcing him to affix this license plate to his car, and punishing him for covering up the image, violates his First Amendment right to be free not to speak. According to Cressman, the image conveys a pantheistic religious message at odds with his Christian beliefs. Oklahoma does offer other license plates, but Oklahomans have to pay extra for those. Cressman eventually bought another license plate but argues that the extra cost violates the First Amendment.

Applying a reasonable-observer test imported from Establishment Clause case law, the Tenth Circuit rejects Cressman’s constitutional claim. A reasonable observer, says the court, wouldn’t interpret the image as Cressman interprets it. This, in turn, means that Cressman, as an objective matter, isn’t being compelled to express a message that conflicts with his Christianity.