The Oklahoma Supreme Court opinion striking down the Ten Commandments monument on the Capitol grounds can only be described as shooting from the hip.
While the outcome is disappointing, the “opinion” itself is woefully inadequate and embarrassing for the state’s legal profession.
The court devoted merely seven paragraphs to explain its decision. The opinion fails to even reference many, many decades of the court’s own legal precedent.
Never has the Oklahoma Supreme Court ruled against a passive display with religious content.
In Meyer v. Oklahoma City, for example, the court found a 50-foot lighted cross sitting on public property to be lawful under the same part of the Oklahoma Constitution it used to strike down the Ten Commandments monument.
In Town of Pryor v. Williamson, under the same provision of the state constitution, the court upheld a publicly owned chapel intended for state supervision of actual religious worship by orphaned children.
Equally disturbing, the court doesn’t address the scholarly work filed with the court by the leading law professor on state constitutional provisions – like the one at issue in this case – demonstrating that the state constitutional provision doesn’t apply to passive displays such as the Ten Commandments monument. It’s an all the more glaring omission given Paul Clement, the former solicitor general of the United States and the undisputed leading U.S. Supreme Court advocate in the nation with over 75 arguments before the high court, represented the law professor on the brief. The state Supreme Court not only inexplicably failed to follow the leading scholarship on this type of state constitutional provision, but it failed to even acknowledge Clement’s brief.
Based on the poorly drafted state of the opinion, it would shock no one if the justices on the court don’t even know the name Paul Clement.
What will happen to all the Native American symbols and other displays on the Capitol grounds that are significant to various religious beliefs and practices?
The Flag Plaza — the monument sitting closest to the Ten Commandments monument — is a large collection of flags rich with Native American spiritual symbolism that encircle the Spring of Life Rock. Similarly the Guardian, a statue that sits atop the Capitol building, is a composite of material and spiritual and cultural characteristics of Oklahoma’s 39 tribes. There also is the Christ Thorn Tree, dedicated in 1930 in honor of President Woodrow Wilson, with religious significance obvious from its name.
Under the court’s reasoning, because each of these is affiliated with the religious, it appears they must be torn down as well.
That has never been the law in Oklahoma. The attorney general filed a petition for the court to rehear the matter and keep the Ten Commandments monument in place until it does so.
This provides an opportunity for the court to reconsider the damage it has done to the Oklahoma Constitution and the reputation of Oklahoma’s legal profession on the national stage.
Regardless of the outcome, the people of Oklahoma deserve an appropriately reasoned opinion from the court that addresses past legal precedent and the leading scholarship on this issue.