Rule of Law: The Monument Must Be Removed

The Ten Commandments monument in Oklahoma

The Oklahoman editorial board has weighed in on the Ten Commandments monument controversy with a tortuous and illogical argument that the state should now repeal its constitution.

The repeal of Article 2, Section 5 of the Oklahoma Constitution would presumably allow the monument to stay on state Capitol grounds, but it's not that simple, and even if it were the unintended consequences complicate the matter further.

In a 7 to 2 vote last week, the Oklahoma Supreme court ruled that the monument must be removed from state Capitol grounds because it was in violation of the Oklahoma Constitution. Article 2, Section 5 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.

Since then the conservative crowd in Oklahoma has been in a complete meltdown, suggesting everything from repealing the constitution to impeaching the judges who made the decision. Both Oklahoma Attorney General Scott Pruitt and Gov. Mary Fallin have publicly pledged their support for keeping the monument at the Capitol. One lawmaker has even made the claim that the ruling "could even lead to churches, synagogues, mosques and other buildings used for religious purposes being unable to receive police and fire protection as they would be directly or indirectly benefiting from public monies."

The monument was placed on the Capitol grounds in 2012 after the legislature voted to do so. It was financially supported by state Rep. Mike Ritze (R-Broken Arrow), an ordained Southern Baptist deacon whose family donated money to have it installed. It has been a subject of controversy since then and has become a huge waste of energy and time, except for the political theater and, well, frankly, the irony. The Satanic Temple, for example, has announced it, too, wants to place a monument on the state Capitol grounds. These are the unintended consequences. Expect more.

The recent editorial by The Oklahoman doesn't actually specifically support keeping the Ten Commandments monument, but it does reminds us of the legal roots of Article 2, Section 5 in the state's constitution. But it's a watered down and selected version of the amendment's history, and it's a disingenuous way to support keeping the monument and fueling the controversy, which only makes the state look bad and takes away from energy that might be applied to solving some of the state's problems.

Here's the newspaper's argument: Article 2, Section 5 was based on the so-called Blaine Amendment to the U.S. Constitution proposed by U.S. Rep. James Blaine in 1875. (Note the year. That's important.) The amendment was defeated in the U.S. Senate, but every state except for 11 eventually adopted a version of the language of the amendment, which read:


No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

President Ulysses S. Grant favored the amendment in 1875, but as historians have long noted its creation was based on an anti-Catholic schools sentiment. It was, they argue, designed to prevent Catholic schools from receiving public money. Grant, however, and this is important, cast the issue in the broader terms of providing free public education for all children and the overall separation of church and state.

The Oklahoman, of course, has cherry picked the historical facts to argue the Blaine Amendment "was designed only to suppress Catholic influence in state-funded settings, but not to suppress other Christian denominations' influence." Thus, it goes on, we should repeal our state's Constitution because, we can presume, the section was intended in a narrow, discriminatory way. To be fair, "state Blaines" might conflict with the non-persecution clause in the First Amendment, as argued in this law review article, but there's the much larger issue when it comes to the Establishment Clause.

There's no doubting the Blaine amendment was motivated in part by preventing government funding for Catholic schools, but the fact its language was so sweeping and that it was framed under the concept of free public education leaves little doubt there was more to it than basic discrimination.

Why didn't the states simply refer to Catholic schools in the amendment? Well, they couldn't because that would have meant explicit religious discrimination. Consequently, the language was intentionally broadened. It's ridiculous to assume that those people writing state constitutions or adding to them would not note the sweeping nature of the language and see the consequences. This is unlike the recent "intent" reading of the Affordable Care Act by the U.S. Supreme Court, which is contemporary. It's easy to look at recent Internal Revenue Service regulations to see the bill's intent. It's more difficult to interpret the intent of a presidential or Congressional speech more than a hundred years later.

So for decades, Article 2, Section 5 has remained on the books in Oklahoma. Now it has to go? The Blaine Amendment issue on the federal level surfaced in 1875. The Oklahoma Constitution was adopted in 1907. Suddenly, we're just now arguing the basis for a state constitutional section violated some sense of intentional legal "purity." This comes in the midst of a contemporary controversy over a religious monument. Meanwhile, the initial intention of a proposed and defeated amendment to the Constitution has been forever obscured by the large time frame.

As I've mentioned, here are two other sections of the Oklahoma Constitution that also merit consideration in the argument:


Article 1, Section 1: 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.

Article 1, Section 2: 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.

The first section takes us to the Establishment Clause in the U.S. Constitution's First Amendment, which "prohibits the making of any law respecting an establishment of religion . . . . " This is exactly what the monument does. It legally sanctions the Judeo-Christian tradition as superior to other religious in Oklahoma unless we allow other religious monuments on state Capitol grounds well. The other section I cite prohibits religious discrimination, which presumably would mean bigotry aimed at Catholics or any religion. This is complicated further by the political union over the last decades of some Protestant denominations, such as the Southern Baptists, with Catholics over issues such as same-sex marriage and abortion. Many Protestants aren't discriminating against Catholics on these points, right? The historical discrimination against Catholics has been replaced by political expediency if not religious unity. In other words, the discriminatory argument related to the Blaine amendment doesn't retain contemporary validity and the state's constitution explicitly protects religious expression outside the public square.

In other words, The Oklahoman has presented yet another shallow argument that simplifies the long running and never ending issue of the separation of church and state. Let's be clear that such a separation is vitally necessary to retain a functioning democracy.

In an earlier post, I wrote about the U.S. Supreme Court decision in 2005 that allowed Texas to keep a Ten Commandments monument on its Capitol grounds, but the Oklahoma case is much different than the Texas case. The Oklahoma monument is crassly religious and exclusive when viewed in its entirety. It's not part of an overall exhibit of various religious traditions. Its supporters falsely claim it's some type of legal framework for Western culture, but pre-Judeo-Christian ancient history provides us with all types of legal precedents that echo and go beyond some of the rather puny edicts outlined by the Ten Commandments. So we shouldn't "covet," right? What about rape and torture? Why aren't they mentioned? These horrific acts seem more important that internal, psychological coveting.

It the end, it's an embarrassing Okie spectacle that's going to drag on and on, and The Oklahoman does a disservice to the state's image by not simply urging government officials to comply with the court ruling. So let me say it: Remove the monument.

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