Religion and Politics

The Court Has Ruled: Remove The Monument

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 how 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 religion in Oklahoma unless we allow other religious monuments on state Capitol grounds as 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.

Oklahoma Theocrats Lose Another Case

Oklahoma Attorney General Scott Pruitt

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.

Planksy Arrives Just In Time

planksydranksy

Arrr! It’s yer bird with the gobbler, the pirate turkey named Plansky coming to Oklahoma to deliver the goods this holiday season. Sailin’ strong, aye, with a crew of tail feathery sailors, aboard a beauty of a vessel, laden with sparkly treasure, coming down I-35 towards Oklahoma City with a birditude. If yer done well, then yer get me dranks, some strong cups of rum aboard me vessel from Planksy’s private barrel, limited edition. It’s a strong brew fer sure, mateys. If yer done bad, well, aye, yer get me dastardly planks, a short dance or two to the hornpipes before a lil’ dip with the toothy, hungry fishes. Arrr!

Dranks: Ahoy, me lasses and lads, the first dranks go to state employees, a sturdy crew of gobbler goodness, many gone without a raise for seven long bilge ratty years. The landlocked lubbers they call leaders in this place gave raises to the bigwigs, but not to the fearless crew. On Planksy’s ship, we’re all in it together, and share our bounty alike. It’s the pirate’s creed. So here’s to yer, and get on board quick for some of me special rum, mateys, aged to perfection for its birdly excellence.

Planks: Arr! What’s a bird to do when all yer tail feathers freeze? Me first planks go to ice storms. How’s a vessel supposed to navigate with this thick ice all about? Avast, it’s the planks for yer! The planks! Don’t come back until you’ve melted.

Dranks: Lads, lasses, me next dranks go to all yer people who want some decent fracking regulations. Arrr! The earth around these parts shakes too much for a bird’s likin’, and it might be because of all this fracking, or, specifically, these blarmy, lubbery wastewater injection wells. Ahoy, when yer mess with the rock layer, it gets, well, rockin’. So come on board, lasses and lads, yer doing good, and let’s drink away for a night and then keep pushin’ for what’s right. Arr!

Planks: Are yer ready to take the plunge, all ye Obamacare haters? It might take a month or two, there’s so many of yer, but yer get me planks, anyways. Ahoy, I think I see me one thar and thar and thar. But what yer goin’ to squeal when everyone gets signed up? What kind of bird hates something it doesn’t even know about? Not the most intelligent gobbler, that’s fer sure. The planks and the toothy fishes await yer tired chirps.

Dranks: He’s the bird with the word, a swaying gobbler in the breeze, bold yet unpretentious, a rascally soul with gifts to give, none other than, hornpipes please, Planksy, the pirate turkey! I give meself me strong dranks of rum as I dance away the holidays on me ship. Bird lovers galore, have yerself a time or two this holiday season, and enjoy that tofurkey! Arr!

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