The Oklahoma Supreme Court decision regarding the Ten Commandments monument is now available online. Now is a good time to look back and draw any lessons we can from this lengthy debacle.
1. Substance prevails over style
The three-pronged attack on the monument consisted of a state court case leaning on a relatively unknown state constitutional provision, a federal court case rooted in First Amendment jurisprudence, and an assortment of threats to erect competing monuments in the vicinity of the Ten Commandments. The first of these three approaches was the least glamorous and not remotely well-publicized, but it was the one which actually worked.
— Deus Ex Media (@deusexmedia) May 7, 2015
As much as we all enjoy the trollish and performative aspects of the Baphomet statue, it would have required a new and separate lawsuit (or even more improbably, the state legislature) to declare that the State Capitol Park is indeed a limited public forum, open to all comers. This was not and is not about to happen.
2. Blaine Amendments are a viable path to more robust separation
Oklahoma’s monument was designed to withstand a lawsuit in the federal courts, but the State Constitution sets a higher bar. From the opinion of the court:
To be sure, the United States Supreme Court case of Van Orden v. Perry, 545 U.S. 677 (2005), ruled that the Texas Ten Commandments monument did not violate the Establishment Clause in the First Amendment to the United States Constitution. However, the issue in the case at hand is whether the Oklahoma Ten Commandments monument violates the Oklahoma Constitution, not whether it violates the Establishment Clause. Our opinion rests solely on the Oklahoma Constitution with no regard for federal jurisprudence.
The applicable state law in this case is Article 2, Section 5
§ 5. Public money or property – Use for sectarian purposes.
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.
As the court notes, the “plain intent of Article 2, Section 5 is to ban State Government, its officials, and its subdivisions from using public money or property for the benefit of any religious purpose.” I can only add that this ruling is a victory for conservatism and originalism, since the justices are straightforwardly applying a constitutional law which has been on the books ever since the State of Oklahoma was first formed in 1907.
Since the bulk of American states also have Blaine Amendments on the books, church/state separatists need to consider following the example of the Oklahoma ACLU and start putting those provisions to good use.
3. Religious allies remain indispensable to church/state activism
As lead plaintiff Bruce Prescott mentioned on his Facebook wall yesterday, his faith is such that he sees the Ten Commandments as part of a covenant between God and humankind. Contemporary defenders of Christian privilege have attempted to argue that the monument holds merely historical meaning, but Bruce is correct to point out that this interpretation takes a position on Ten Commandments which is antithetical to many sincere believers.
From his affidavit:
Foremost among the terms in the covenant are those that identify Divinity. The word “God” appears six times, usually within the phrase “the Lord your God” (five times). The word “Lord” appears seven times. One of the commandments pertains to the dignity necessary when invoking Divinity and the special care necessary to assure that every invocation of God have meaning and significance:
“You shall not misuse the name of the Lord your God, for the Lord will not hold anyone guiltless who misuses his name.” (Exodus 20:7 NIV)
I believe that the name of the Lord God is “misused” when declarations are made that the words “Lord” and “God” on Ten Commandments monuments are historical artifacts and no longer have religious meaning and significance. In effect, this undermines religion by negating the significance of the most sacred symbols of religious language.
Separationism prevailed in this case because the justices found that “the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths.” It could not have but helped that the plaintiff before them was a seminary-trained believer, affirming his own religiously-informed view of what the Decalogue means.
If you can think of any other lessons which we separationists ought to have learned here, please share your thoughts in the comments.