Oklahoma Supreme Court refuses to re-hear Ten Commandments case, monument must be removed

Earlier this month, Oklahoma’s Supreme Court ruled that a monument to the Ten Commandments that was standing on the grounds of the state capitol was a complete defenestration of the First Amendment and needed to be removed (duh). Rather than take the court’s ruling as being, well, a rule that she had to follow, Oklahoma Governor Mary Fallin declared that the monument would stay up. This was legal, she said, because the state was asking the Supreme Court to rehear the case.

On Monday, Oklahoma’s Supreme Court blew her off, reiterating that the monument has to come down. There was no reason to rehear the case, as no laws had changed. The state constitution remains crystal clear:

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.

So erecting a monument to the Ten Commandments, which uses public property to directly benefit a system of religion, is very obviously illegal. Even if it is funded with private money — the family of an Oklahoma State Representative paid for the monument’s construction and maintenance — you can’t use public property to endorse one belief system at the exclusion of others.

Ten Commandments, via Wikimedia Commons

Ten Commandments, via Wikimedia Commons

The exclusion principle is likely what sealed the monument’s fate. Last year, Satanists announced that they were building a monument to be placed alongside the Ten Commandments on Oklahoma’s state capitol grounds. Had Oklahoma’s Ten Commandments been allowed to stay up, chances are it would have had to share space with an eight and a half foot bronzed bust of the pagan idol Baphomet. According to the Oklahoma-based Star Tribune, “A Hindu leader in Nevada, an animal rights group and the satirical Church of the Flying Spaghetti Monster also have made requests” to have monuments placed alongside the Ten Commandments.

As JT Eberhard at Patheos noted, Governor Fallin had also tried to justify her decision to keep the monument up by suggesting that the state legislature could act, passing a law to exempt the monument. Not only would this still be in violation of Oklahoma’s constitution, it wouldn’t change the fact that, for now, the monument has to come down. As the ACLU’s lawyer who prosecuted the monument case said, you can look at national trends and see a time at which marijuana’s going to be legal in Oklahoma; that doesn’t mean you can open up a dispensary today.

Monday’s 7-2 majority reflected the same split as their original decision. In his dissent, Justice Doug Combs argued that the monument doesn’t constitute an endorsement of religion because — not making this up — it was placed on the north side of the capitol building, which gets less foot traffic. As Combs argued, if it were the government’s intention to endorse religion, they would have made their middle finger to non-believers just a little bit bigger and in their faces.

As his colleagues reminded him (again), that’s not how the Constitution works.

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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