No, “quite simply,” Oklahoma Attorney General Scott Pruitt got it legally wrong in his statement criticizing the Oklahoma Supreme Court’s decision Tuesday that the controversial Ten Commandments monument on state Capitol grounds must be removed.
The 7 to 2 court ruling seems obvious, and one doesn’t have to be an attorney to understand it. The monument is a religious symbol on state public property, which is an obvious violation of the Oklahoma Constitution. The American Civil Liberties Union of Oklahoma and its national affiliate brought the winning lawsuit to get the monument removed.
Here’s Pruitt’s statement:
Quite simply, the Oklahoma Supreme Court got it wrong. The court completely ignored the profound historical impact of the Ten Commandments on the foundation of Western law. Furthermore, the court’s incorrect interpretation of Article 2, Section 5 contradicts previous rulings of the court. In response, my office will file a petition with the court for a rehearing in light of the broader implications of this ruling on other areas of state law. In the interim, enforcement of the court’s order cannot occur. Finally, if Article 2, Section 5, is going to be construed in such a manner by the court, it will be necessary to repeal it.”
Here’s Article 2, Section 5 of the state constitution:
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.
The first question for Pruitt, pictured right, of course, is how else could you not consider the “or property” and “or used” and “or support” and a “system of religion” as ambiguous in any sense. The second question is how can you dismiss the Ten Commandments as merely historical when they appear in the Bible? They are organically religious. They only exist because of religion. The Ten Commandments begin, “I am the Lord and God/Thou shalt have no other Gods before me.” How can anyone argue that’s not religious?
I hope the court denies Pruitt’s request for a rehearing just on the grounds that the state constitution is so convincingly clear on the issue. Pruitt’s argument for repeal if the constitutional section is “going to be construed in such a manner” also has its own set of problems.
Here are two of those problems:
Oklahoma Constitution, Article One, Section One: The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land.
Oklahoma Constitution, Article One, Section Two: Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.
Leave aside the issue of polygamous or plural marriages in the second section. The first section makes it clear that the U.S. Constitution supersedes the Oklahoma Constitution, which may mean the issue will probably be decided on a U.S. Supreme Court interpretation of the Establishment Clause in the First Amendment. But the second section complicates it further. For example note the language, “. . . no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship . . . ” Couldn’t people outside the Judeo-Christian religious system argue the monument makes them feel like second-class citizens and thus “molests” them psychologically or denies them equal standing in state government?
So will Pruitt also lead the charge to rewrite other major sections of the state constitution that make Oklahoma “an inseparable” part of the United States and protect people, even Christians, against religious discrimination? My point is that Pruitt’s repeal argument is not as simple as it might seem. What if the issue does end up in the U.S. Supreme Court and the court upholds the decision? Then the call for repeal becomes a tangled thicket involving at least three sections of the state constitution. Conversely, what if the high court rejects that ruling and rules the monument can stay? Then Pruitt’s repeal argument becomes as meaningless as the states’ rights argument against same-sex marriage. It’s just political posturing.
Some legislators, in response to the ruling, want to impeach the judges who ruled in favored of removing the monument, but, again, the constitution is so obvious on this point that it’s difficult to see how much traction this idea could get among people in some type of recall or impeachment effort. Judges must follow the law even if they don’t agree with it on a personal level. I think people will empathize with that.
People in favor of the Oklahoma monument point to the U.S. Supreme Court decision in 2005 to allow such a monument on the state Capitol grounds in Texas, but they often fail to mention the court also ruled at the same time against allowing Ten Commandment displays at two courthouses and a school district in Kentucky. The seemingly opposite rulings hinged largely on the fact that the Texas monument had a 40-year-old history and had not been legally challenged during that time.
Who knows what the divided high court would rule on the Oklahoma case, but the monument, which was installed only in 2012, does not have a similar history as the Texas monument. The legislator, state Rep. Mike Ritze (R-Broken Arrow), who led the effort to place the monument on state grounds and whose family donated $10,000 to the project, lists himself as an “ordained Southern Baptist deacon” on his legislative profile.
Whatever the ultimate outcome in this case, this much is true: This spectacle is about religious conservatives here trying to push their worldviews on people who don’t share those narrow worldviews. It’s about political posturing and maneuvering. It’s about the political power of the Southern Baptist Church and other Christian fundamentalist churches in Oklahoma. It’s about the real threat of theocracy here and throughout the country.
It’s NOT about the foundation of the law or even constitutional interpretations.