Article 2, Section 5 of the Oklahoma Constitution provides: “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.”
It’s pretty simple, right? It is hard to fathom that rational people cannot see that a ten-commandments monument on State Capitol grounds would not clearly be “public property…appropriated or used…indirectly for the…support of any sect, church denomination or system of religion.”
And while it is true that the US Supreme Court has upheld similar monuments as not violating the Establishment Clause of the US Constitution, those rulings have no bearing on the Oklahoma Supreme Court interpreting much different, and much more explicit, language in the Oklahoma Constitution.
Now here is where it gets a little tricky: In the original ruling, the OKSCT issued a very short opinion that basically said the ten-commandments are “obviously religious in nature and are an integral part of the Jewish and Christian faiths” and therefore the monument at the Capitol clearly violates Article 2, Section 5. While technically accurate, the opinion ignored Oklahoma precedent that could reasonably be seen to have been in conflict. For instance, in Meyer v. Oklahoma City, the plaintiff sought removal of a 50′ lighted cross that was placed at the Oklahoma State Fairgrounds. That OK Supreme Court (1972) declared this was constitutional because 1) the placement of the cross was in a “distinctly secular environment in the midst of persons in pursuit of distinctly secular entertainment” and 2) the cross arguably did not “display, articulate or portray any ideas that are alleged to pertain to any of the sectarian institutions or systems named in Article 2, Section 5.” These rationales for the 1972 case are clearly bullshit, and the Justices in this case should have said so. The lighted cross clearly violates the plain wording of the section, so that opinion should have been expressly overturned.
Alas, the OKSCT had the opportunity to fix their mistake of not fully addressing the multitude of issues that were brought up by this case when the OK Capitol Preservation Commission filed for rehearing. In the order denying the rehearing request, the Justices tackled the prior precedents and more fully laid out their reasoning for the prior opinion. And while they couldn’t all agree on the basis for the prior ruling, 7 out of 9 of them still agreed the monument violated the Oklahoma Constitution.
Further, Governor Fallin, and many of my learned colleagues, attempt to call this section of the Constitution a “Blaine Amendment.” This is a political ploy to ramp up negative feelings toward this section. While the Blaine Amendment was disturbingly intended to discriminate against Catholics, the section we are dealing with here is much more broad. Instead of outlawing funding only for parochial schools, our Constitutional provision outlaws funding for pretty much anything religious. It is also in the middle of several other sections that deal specifically with disallowing government interference in ANY religion.
Here are the takeaways:
- Our Constitutional provision is very broad and outlaws almost anything having to do with religion. This could lead to other concerns of money spent indirectly on things directly or indirectly tied to religion. I believe it is a small concern, because the Court will wiggle its way around it for things like hospitals with religious affiliations, or no one will actually challenge it in court, but it is a concern, nonetheless.
- This is not a Blaine Amendment, rather, it was much more broad than anything Blaine ever wanted. The framers were clearly concerned about religion being involved in government.
- Federal Establishment Clause jurisprudence has nothing to do with our State Constitution.
- People that want to impeach the Supreme Court for following the law are idiots.
- There will be a big push to change the Constitution. My concern will be that our legislators will want to change it in a way that WILL violate the Federal Constitution and will be the subject of many. many more lawsuits.
- The amount of money, time and effort we have spent arguing about this in court and in public opinion, could have been much better spent on any variety of governmental functions, including education, where we are near the bottom in the country of per pupil spending.