As we first discussed in “Devil Be Gone: Oklahoma and the Ten Commandments Monument,” on June 20, 2015, in Prescott v. Capitol Preservation Commission, the Oklahoma Supreme Court found that the Ten Commandments monument at the State Capitol had to be removed pursuant to Article 2, Section 5 of the Oklahoma Constitution. This secition states “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”
Immediately, members of the Oklahoma legislature called for the repeal of this section of the Oklahoma Constitution and to impeach the Supreme Court justices that voted against the Ten Commandments Monument in Prescott. Now, there have not been any real attempts to impeach the Supreme Court justices, but House Bill 3162 was recently passed to significantly change the Judicial Nominating Commission (which was established decades ago in the wake of a bribery scandal among Supreme Court justices in the 1960's). The sponsor of this bill, House Speaker Jeff Hickman, R-Fairview, says the Judicial Nominating Commission's power to select top judicial candidates has been greatly overdone and needs to be trimmed back, but in reality this was not an issue until after the Oklahoma Supreme Court's Ten Commandments decision.
Similarly, the Oklahoma House and Senate have both passed bills to ask voters to repeal Article 2, Section 5 of the Oklahoma Constitution. Rep. John Paul Jordan, R-Yukon, whom I consider a personal friend, says “that if Article 2, Section 5, is not removed from the Constitution, a range of state activities that touch on religious institutions, including support for religious-affiliated hospitals, could be invalidated, particularly given the Supreme Court decision.” And, to be fair to Rep. Jordan, that is a concern, but it is overstated and it is clear from the rhetoric immediately following the Oklahoma Supreme Court's decision in Prescott that this is really about the Ten Commandments monument. Besides, those that make this argument point to no Oklahoma case law to support their position. In fact, there are two cases dealing with challenges brought under Article 2, Section 5 where the Oklahoma Supreme Court found that the maintenance of chapels for the use of the children in a state orphans home did not violate Article 2, Section 5 (State ex rel. Town of Pryor v. Williamson, 1959 OK 207) and where the maintenance by the city of a cross on the city's fairgrounds did not violate Article 2, Section 5 either (Meyer v. City of Oklahoma City, 1972 OK 45). I think it is fair to say that the fear that failing to repeal Article 2, Section 5 will result in Native American art being taken down or support for religious-affiliated hospitals being invalidated is overblown, at best.
The bottom line is, even if the people of Oklahoma vote in favor of repealing Article 2, Section 5 and the Ten Commandments monument is re-erected on the grounds of the State Capitol, it will likely all be for not. Why? Because, the Ten Commandments monument, most likely, also violates the First Amendment to the United States Constitution. The First Amendment, in relevant part, states “Congress shall make no law respecting an establishment of religion.” The First Amendment applies to the States through the Fourteenth Amendment. In Van Orden v. Perry, the United States Supreme Court ruled on a challenge to a Ten Commandments monument on the grounds of the Texas State Capitol. This Ten Commandments monument was nearly identical to the one that was on the grounds of the Oklahoma State Capitol and the Supreme Court found that it was permissible for Texas to have it. However, there are significant factual differences between the Oklahoma Ten Commandments monument and the Texas Ten Commandments monument. For example, the Texas Ten Commandments monument was a gift from the Fraternal Order of Eagles in 1961 and had been in place for 42 years before the lawsuit was filed challenging its placement. Further, it was part of a display of seventeen monuments, all located on grounds registered as a historical landmark, and it was carefully located between the Supreme Court building and the Capitol building housing the legislative and executive branches of government. The Supreme Court specifically mentioned the importance of these facts in determining that the Texas Ten Commandments monument was permissible. By contrast, the Oklahoma Ten Commandments monument has no history. It was placed on the grounds of the State Capitol in 2012. It was not donated to the State by the Fraternal Order of Eagles, or some other secular organization, but was paid for by the family of State Rep. Mike Ritze, who also authored the bill to allow for the Ten Commandments monument to be placed on the grounds of the State Capitol. Further, this monument was not placed among many other historical monuments, but was placed in an isolated location far from the main entrance to the Capitol. Because the Oklahoma Ten Commandments monument is a new monument with no history, it is likely the Supreme Court would find it is in violation of the First Amendment.
I think it is fair to say that, clearly, these measures are in direct response to the Oklahoma Supreme Court's Ten Commandments decision and that is a shame. The continued pursuit of placing the Ten Commandments monument on the grounds of the Oklahoma State Capitol disenfranchises Oklahomans who are not Christian and is time consuming and expensive for the State to defend. At a time when we have a $1.3 billion budget shortfall, wasting money defending a monument that is more than likely unconstitutional seems like a waste of time and resources.