Once again, my friends Bruce Prescott and Jim Huff have been vindicated in the courts, as the Supreme Court of Oklahoma laid down a devastating series of substantive arguments against the State Attorney General, who has argued that the Ten Commandments monument should be allowed to remain in place. Here are just a few of the highlights.
The existing monument operates to benefit just one system of religion
The text of the Ten Commandments displayed on the monument begins with the declaration “I AM the LORD thy GOD.” This declaration is followed by four directions for the worship of God. In addition, the “historical” commandments are immediately preceded by a divine promise of long life for honoring one’s parents. They are immediately followed by divinely ordained proscriptions against coveting things belonging to one’s neighbor; a matter of conscience, not general social order. This dominance of the explicit religious message renders the monument “operative in an effective way” for the benefit of the of the Judeo-Christian system of religion.
Oklahoma’s constitutional protection of church-state separation owes more to Jefferson than to Blaine
The Attorney General’s historical argument is incorrect. The origin of Okla. Const. Art. 2 § 5 is with Thomas Jefferson and the example set by the People of Virginia and not the 1876 Blaine Amendment. See Connell v. Gray, 1912 OK 607, 127 P. 417, 420, where the Court discussed the connection between Art. 2 § 5 and a 1786 Virginia statute.
Unlike Article II, Section 5 of the Oklahoma Constitution, the Blaine Amendment does not, except for educational institutions, address the use of state property for the direct or indirect benefit of a religion or system of religion. Because the Blaine Amendment does not contain a general prohibition on the use of state property to benefit religion, Article II, Section 5 of the Oklahoma Constitution cannot be seen as a Blaine Amendment.
People of faith can recognize the necessity of complete separation of church and state, just as Oklahoma’s original founders did
The Oklahoma Constitutional Convention members started their proceedings with a prayer and the invocation of God’s guidance and prefaced the Oklahoma Constitution by invoking God’s guidance, all this showing that they were religious men who believed in God. Okla. Const. pmbl. However, they were also men who advocated for the toleration of all religious beliefs and complete separation of church and state by going further than the federal constitution. Closely following the preamble is Article I, Section 2 of the Oklahoma Constitution, which is entitled “Religious liberty-Polygamous or plural marriages.” Section 2 secures “[p]erfect toleration of religious sentiment” and provides “no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship . . . .” Okla. Const. Art. I, § 2. Then only three sections later, the Constitutional Convention provided for public schools “free from sectarian control.” Okla. Const. art. I, § 5. Seven sections later, they prohibited the use of state property, directly or indirectly, for the use, benefit, or support of religious group. Okla. Const. art. II, § 5. While the constitutional framers may have been men of faith, they recognized the necessity of a complete separation of church and state and sought to prevent the ills that would befall a state if they failed to provide for this complete separation in the Oklahoma Constitution.
Oklahoma’s Ten Commandments would also lose in the federal courts
Interestingly, and wrongly in my opinion, the defendant and the Legislature heavily relied on Van Orden v. Perry, 545 U.S. 677 (2005), for the constitutionality of and framework for erecting the monument in the present case. On June 27, 2005, the United States Supreme Court decided Van Orden, a plurality opinion,5 and McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005), in which five Justices concurred in the Supreme Court’s opinion. In my opinion, McCreary is analogous to the present case, whereas Van Orden is not. These two United States Supreme Court cases, like the case presently before us, involve placement of the Ten Commandments on government property.
There are several similarities between the monument on the Oklahoma state capitol complex and the Ten Commandments display in McCreary. Both originally stood segregated from any other historically significant monuments or displays. Both displays were initiated by the governing legislative body with a stated purpose of the display being of historical value but lacking any context to indicate an object beyond the religious nature of the text. Both were displayed only shortly before the legal attack seeking their removal and neither were long-installed displays. The monument on the Oklahoma state capitol complex is more religious in nature than the Ten Commandments display in McCreary because the Oklahoma monument has the additional language, “I AM the LORD thy God,” which was not present in McCreary. 545 U.S. at 852, 855, 869. In contrast, the monument upheld as constitutional in Van Orden was in place forty years before it was legally challenged.
Concurring in judgment, Justice Breyer cast the deciding vote in Van Orden. While the deciding factor for the four concurring Justices was the monument’s purpose, the deciding factor for Justice Breyer was the length of time the Texas monument had been in place before being challenged. Justice Breyer found Van Orden to be a borderline case. My reading of Justice Breyer’s opinion concurring in result leads me to the conclusion that had the longevity factor been absent, as it is here and in McCreary, the Texas monument would not have passed constitutional scrutiny under the Establishment Clause. Further, while the Texas monument was identical in wording to the monument here, the less sectarian language on the Kentucky display that was unconstitutional shows that wording alone is not the determining factor.
If a federal analysis is needed in the future, this case is without question much more analogous to McCreary than Van Orden. Under a proper federal analysis, this monument would likely be held unconstitutional under the First Amendment.
I find this last one is particularly gratifying, since I’ve been arguing for years that Van Orden is readily distinguishable from the case at hand here.