Just over a year ago—under the dark of night—a Ten Commandments monument was removed from the state Capitol grounds.
State Rep. Mike Ritze, R-Tulsa, paid for it. Gov. Mary Fallin supported it. But its placement prompted a public debate—and ultimately a lawsuit—that forced its removal.
The Oklahoma Supreme Court ruled it had to come down and based their decision on a section of the Oklahoma Constitution—Article 2, Section 5—that says public money and property may not be used to benefit religion.
Now legislators are seeking to remove that part of the Constitution so they can get their monument back. That’s what a “yes” vote on State Question 790 would do.
But Ryan Kiesel of the American Civil Liberties Union of Oklahoma said another monument wouldn’t be around for long.
“Anyone who believes that by removing Article 2, Section 5—by passing State Question 790—that we just roll out a red carpet for a Ten Commandments monument—you are mistaken,” Kiesel said.
Instead, Kiesel said the ACLU will challenge it in federal court, as undermining the Establishment Clause in the First Amendment of the U.S. Constitution.
“The Establishment Clause, in the most basic terms, says the government shall not establish a religion,” Kiesel said.
Kiesel said putting a Ten Commandments monument on Capitol grounds holds Christianity up on a pedestal. Which, he thinks, is dangerous.
“If you think about the anger and the frustration that culminates on both sides, it’s that very sort of division that our founders, both at the federal level and the state level, sought to prevent against,” Kiesel said.
The main force behind State Question 790 is State Rep. John Paul Jordan, R-Yukon. He said this issue is bigger than religion.
“The idea that this is all about a Ten Commandments monument—first off—is a misnomer,” Jordan said.
For him it’s about lawsuits. He said when the state Supreme Court justices ruled against the monument last year, they consequently forged a very strict interpretation of Article 2, Section 5. And now all government money going to religious institutions—whether directly or indirectly—will be problematic.
“If anything has religious context, and it is receiving some kind of religious benefit… it’s violating the state constitution and that benefit has to be removed,” Jordan said.
For example, he said roadside memorials on government property would not be allowed. Legislators who are also pastors would not be able to receive payment from the state. And religious-affiliated hospitals would be exempt from receiving state insurance dollars.
“To me it’s basically that aspect of, now there’s a mechanism for outside groups – the ACLU, Freedom From Religion, Americans United for Separation of Church and State – for being able to file a lawsuit against a town, a county, a school district, for anything that they would perceive as having religious content and trying to test the waters,” Jordan said.
Jordan envisions years of lawsuits because of this. And so, the easiest solution in his mind is to just remove the provision.
But University of Oklahoma law professor Rick Tepker said Jordan’s hypothesis is extreme and wouldn’t make it far in court. He said the state isn’t paying hospitals or pastors to promote religion, so there shouldn’t be an issue.
“Admittedly there might be a lawsuit about it,” Tepker said. “But I personally argue that insurance programs designed to promote medical care pursue a secular objective.”
Tepker thinks this case is cut-and-dry: putting a Ten Commandments monument on Capitol grounds is an establishment of religion, and if it’s challenged at the federal level he thinks the U.S. Supreme Court will rule as such.
Scott Pruitt, Oklahoma’s attorney general, and some legislators like Jordan argue the Ten Commandments are a historical document and the basis of our modern legal system. More than just a religious symbol—and therefore it should be able to stay.
“From a historical perspective, there is a historical lineage from the Ten Commandments to the Oklahoma Constitution,” Jordan said.
But Tepker said this argument is unfounded.
“Nobody in this law school, or any other law school that I know of, is going to make a serious argument, that the Ten Commandments, and particularly the religious dominated first few, are foundations of our common law system, or our statutes, or our constitutional principles,” Tepker said.
And beyond that, Tepker argues this issue is using time and financial resources that are hard to come by for the cash-strapped state.