The end of June was a busy few days for both the state and federal judiciary. As the U.S. Supreme Court wound down its term, opinions in some of the widest-reaching cases came in the final few days.
But a lot of the reasons behind all of this began years ago.
Death Penalty Dispute
On April 29, 2014 the Oklahoma Department of Corrections executed Clayton Lockett. He writhed and moaned on the gurney, and took 43 minutes to die despite several attempts to insert an intravenous line. After the troubled procedure, future executions were halted, and more than a dozen death row inmates sued. They argued Oklahoma’s three-drug cocktail violated the U.S. Constitution’s Eighth Amendment prohibition of cruel and unusual punishment.
At issue was the sedative midazolam. The inmates argued it couldn’t effectively produce a “deep coma-like state” necessary for them not to feel pain while the other two drugs were administered. The case went all the way to the U.S. Supreme Court, where it was argued on April 29, 2015 - exactly a year to the day after Lockett’s death. Two months later, in a 5-4 ruling, the court upheld Oklahoma’s procedures.
But dissenting opinions still raised serious, and NPR’s legal affairs correspondent Nina Totenberg says it raised even broader questions about the death penalty.
“Justice Alito wrote the opinion for the court that said there has to be a way of doing these executions. The death penalty was there at the time the framers wrote the constitution. They did not consider it cruel and unusual punishment at the time, and therefore basically it's not cruel and unusual punishment today,” Totenberg said. “On the other side were four justices, the liberal members of the court, the more liberal members of the court, all four of whom said this drug does not meet the criterion of avoiding unnecessarily cruel and unusual punishment, because it is not a drug that clearly prevents people from feeling pain. It's a sedative. It's not an anesthetic. It's not like the anesthesia you get on the operating table. And just because somebody is out cold doesn't mean that he or she isn't feeling very great pain.”
In a separate opinion, Justice Stephen Breyer wrote for himself and Justice Ruth Bader Ginsberg that even though they’ve upheld the death penalty in the past, they’re ready to examine whether the death penalty itself constitutes cruel and unusual punishment, because innocent people have been executed.
“Innocence was one of the points that Breyer was making. And the other is the rarity of the death penalty, and the fact that the only people executed tend to be the most poor, the least represented, and that because there are problems with the death penalty, and how it is sought by prosecutors in some parts of the country but not in other parts of the country, or in some counties and not in other counties, or in some towns and not in other towns,” Totenberg said. “It is an inherently unfair system and it takes so long to actually impose the death penalty because of all the difficulties with it, sometimes as many as 20 or 30 years, that it doesn't even do what it's supposed to.”
Sovereignty vs. Same-Sex Marriage
In what was probably the most widely-publicized opinion of the session, the U.S. Supreme Court ruled bans on same-sex marriage were unconstitutional, effectively legalizing it in all 50 states.
But, there are parts of the country where certain federal laws don’t necessarily apply, namely, sovereign Native American tribes.
“The Supreme Court's decision was based on the 14th Amendment to the Constitution. So in consequence, it applies to all of the state governments, which have been performing marriages, historically, since the birth of the republic,” said Lindsay Robertson, the faculty director of the Center for the Study of American Indian Law and Policy, and the Chickasaw Nation Native American Law Chair at the University of Oklahoma. “The tribes are actually not affected directly by the decision, because they're outside of the constitutional infrastructure.”
Robertson said it will likely be up to individuals to sue tribal governments for the right to marry a partner of their choosing, but they won't be able to sue federally for marriage equality. The tribal governments could use the high court's ruling as a persuasive arguments for legalizing same-sex marriage, but it doesn't set a precedent.
Ultimately, Robertson says the tribes will be forced to examine the same sex marriage issue and reconsider it. The country's two largest Native tribes, the Navajo and Cherokee, currently prohibit same sex marriage.
Contentious Ten Commandments
Last month was also busy for Oklahoma’s Supreme Court. The nine justices have been looking at the Ten Commandments monument on the grounds of the state Capitol. It was erected in 2012 and paid for with private funds, but the state’s highest court ruled the monument is illegal under the Oklahoma constitution because it’s on state property.
That prompted Oklahoma Attorney General Scott Pruitt to request a rehearing, and some Republican lawmakers have called for the impeachment of the seven justices who ruled against the monument.
Legislative efforts are now underway to amend the portion of the state constitution that bars state funding for religious purposes, but it’s uncertain whether or not the monument would violate the First Amendment’s Establishment Clause.
At issue here is Article II, Section 5 of the Oklahoma constitution, which states that public money and property won’t be used to support any particular religion or be used to the benefit of any religious authority. In its 7-2 ruling, the Oklahoma Supreme Court ruled the Ten Commandments monument violated that provision
State Rep. John Paul Jordan filed a resolution to create a ballot referendum to remove that part of the constitution. It has to pass a supermajority in both the House and Senate, and then go to the ballot in November 2016.
Jordan says a Ten Commandments monument like this, in a public space, does not mean the government is picking one religion over others.
“At times what it is seen as, is that government is reflecting the ideals and principles that that government represents,” Jordan said.
If the state constitution is amended, the monument’s fate could be decided by the nation’s highest court.
“The problem is, the cases seem to be so fact intensive and details matter,” said Oklahoma City University law professor Michael O’Shea.
It comes down to whether or not a Ten Commandments monument is used in a historical or religious context. A pair of 2005 U.S. Supreme Court cases show just how difficult it can be to predict what could happen. In a 5-4 decision, the justices found Ten Commandments images in Kentucky courthouses to be unconstitutional because they weren’t well-integrated with other historical documents. At the same time, a Ten Commandments monument erected in 1961 at the Texas State Capitol was found constitutional. That monument was among many historical markers, and was deemed to have historical value. The justices also voted 5-4 in that decision.
“Justice Stephen Breyer’s vote in that case made the difference.” O’Shea said. “His concurrence frankly seemed to go out of its way to emphasize how impossible he thinks it is to reduce this area of constitutional law to a defined test and it has to be a fact based test that turns on all the circumstances.”
There’s also the 2009 Pleasant Grove v. Summum case. The high court found that governments can exercise free speech by choosing to place some privately donated monuments, while denying others.
That’s why Jordan isn’t concerned that other groups which want to erect monuments --- like a Hindu organization and a Satanic temple --- will succeed in putting their statues on the state capitol grounds.
“They have to find someone in the legislature to author the bill to have it placed. They have to receive a majority in both the House and the Senate. And then it has to be signed by the governor,” Jordan said. “So no, I don’t see that being a concern, aside from we now have a procedure set in place for other monuments.”
American Civil Liberties Union of Oklahoma legal director Brady Henderson says there are issues at play here with the state’s wait and see approach to removing the monument. He says it’s perfectly legal for the Ten Commandments to remain on the grounds until the state supreme court decides whether or not to rehear the case.
Governor Mary Fallin’s request to wait until voters have a chance to amend the constitution is another matter. Henderson says the state can’t avoid a court order by saying they hope the law will eventually change in their favor. He compares it to going before a judge on a marijuana possession charge.
“Would it work for them to tell the judge, ‘Judge, I know it’s illegal to have marijuana here in Oklahoma right now, but you know, those laws are changing nationally and probably some day it will be legal here in Oklahoma.’,” Henderson said. “’So, why don’t we just not have me sentenced. Let’s just let me off the hook because I think the law is going to change. So, no, you know. You enforce the law as it is, not as you want it to be a year or two from now.”
Henderson said the provision that legislators like Jordan want to repeal is over a hundred years old and part of the original state constitution. He calls it one of the state’s strongest protections of religious liberty.
“It says the government doesn’t get to discriminate between your religious or mine or anybody else’s,” Henderson said. “We shouldn’t repeal that lightly because some of us are mad about one court decision. You don’t roll back fundamental parts of your law in a quick and dirty fashion.”
Getting back into hypotheticals, if the provision is repealed – and the case goes to the U.S. Supreme Court – Henderson said it’s anybody’s guess which way the justices will decide.
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