The Volokh Conspiracy
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So held the Oklahoma Supreme Court yesterday in Prescott v. Oklahoma Capitol Preservation Commission, by a 7-2 vote. The monument might not violate the First Amendment, given the Court's precedent in Van Orden v. Perry (2005), depending on where and how it is placed (for instance, whether other secular monuments are nearby). But the Oklahoma Constitution provides,
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.
And the Oklahoma Supreme Court held that the monument (paid for by private money, but installed on public land in 2012) violated that provision:
In deciding whether the State's display of the monument in question violates Article 2, Section 5, the intent of this provision must be ascertained. Such intent is first sought in the text of the provision. Words of a constitutional provision must be given their plain, natural and ordinary meaning….
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. Use of the words "no," "ever," and "any" reflects the broad and expansive reach of the ban.
To reinforce the broad, expansive effect of Article 2, Section 5, the framers specifically banned any uses "indirectly" benefitting religion. As this Court has previously observed, the word "indirectly" signifies the doing, by an obscure, circuitous method, something which is prohibited from being done directly, and includes all methods of doing the thing prohibited, except the direct means. Prohibiting uses of public property that "indirectly" benefit a system of religion was clearly done to protect the ban from circumvention based upon mere form and technical distinction.
In authorizing its placement, the Legislature apparently believed that there would be no legal impediment to placing the monument on the Capitol grounds so long as (1) the text was the same as the text displayed on the Ten Commandments monument on the grounds of the Texas State Capitol, and (2) a non-religious historic purpose was given for the placement of the monument. 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. As concerns the "historic purpose" justification, the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths.
Because the monument at issue operates for the use, benefit or support of a sect or system of religion, it violates Article 2, Section 5 of the Oklahoma Constitution and is enjoined and shall be removed.
A few thoughts:
1. The Oklahoma Supreme Court is the ultimate expositor of the Oklahoma Constitution, and it's free to read the Oklahoma Constitution as more constraining of the state government than the federal constitution is. (If the provision actually violates federal rights, for instance by mandating discrimination against nongovernmental religious speakers, that may be unconstitutional, see Widmar v. Vincent (1981), but that's not involved here.) Thus, no review by the U.S. Supreme Court is available—though of course the people of Oklahoma are free to change the Oklahoma Constitution, a process that isn't that difficult, if there's broad support for the change.
2. Some other state constitutions have similarly broad (though not identical) provisions; similar challenges might potentially prevail in those states, depending on what the state supreme court says.
3. The Oklahoma Bill of Rights also has many other provisions. Some state courts interpret such provisions in a way that closely tracks the U.S. Supreme Court's interpretations of the related federal provisions—but some don't, and have developed their own state constitutional rules related to free speech, religious freedom, search and seizure, due process (see the recent Texas economic liberty case), and more. The Oklahoma Supreme Court may be signaling a willingness to read those other provisions more broadly than their federal analogs, too.
4. On the merits, the Oklahoma Supreme Court's interpretation is textually plausible. The placement of the monument on state land can be said to involve "public … property" being "used, directly or indirectly, for the … benefit … of any … system of religion." This is especially so since the second clause of the provision expressly mentions benefits to individuals or institutions—suggesting that the more general first clause covers something else, which may include benefit to an ideology stemming from government promotion of the ideology.
On the other hand, appropriation "for the use, benefit, or support" might mean something narrower, for instance being limited to more tangible rather than symbolic benefits (such as requiring college students to pay a fee for the support of the YMCA—`see Connell v. Gray (Okla. 1912), which might not itself be a "sectarian institution" but at the time might have been seen as promoting a system of religion). And one piece of evidence for adopting a narrower interpretation is the Preamble to the Oklahoma Constitution, which says,
Invoking the guidance of Almighty God, in order to secure and perpetuate the blessing of liberty; to secure just and rightful government; to promote our mutual welfare and happiness, we, the people of the State of Oklahoma, do ordain and establish this Constitution.
This suggests that the Constitution was not understood as condemning all governmental statements (promulgated using government funds and reprinted and displayed on government property) that may be read as endorsing religion. The Preamble endorses the notions (1) that there is a God, (2) that he is Almighty, (3) that there is only one such Almighty God, and (4) that he offers guidance (as opposed to just being a Creator who left the world to its devices when it was created). To be sure, that's a pretty generic conception of God within American history, especially as of 1907. But the irreligious were around even then, as well as American Indians—especially in Oklahoma—who didn't see the world in terms of one Almighty God. And the Ten Commandments were broadly about as broadly accepted then, too. (I realize that there are differences among Catholics, Protestants, and Jews about which translation of the Ten Commandments to use, but my sense is that they are not particularly salient today. I also realize that some constitutional provisions might be seen as deliberate exceptions from constitutional rules set forth in other portions of the constitution, and not guides to interpreting those other portions; but I doubt that the Preamble's reference to God was understood as such an exception.)
More broadly, religious references of one sort or another by the government are commonplace today, and were likely commonplace back in 1907: appeal not just to God the creator but to God the judge in the beginning and end of the Declaration of Independence (which I suspect is posted on various state-owned property in Oklahoma); "In God We Trust" in the Star-Spangled Banner and as the official U.S. motto; and more. The Oklahoma Great Seal appears to include some references to Indian tribes' religious beliefs. All of these references to "God" can be labeled as "obviously religious in nature and … an integral part of the Jewish and Christian faiths. "I suspect that Oklahoma schools and universities have choirs and orchestras that perform music with a religious component, which are of course a critical part of musical history (for instance, the history of gospel music, the history of classical music, and more).
The U.S. Supreme Court's "endorsement" test, for all its many flaws, is an attempt to distinguish permissible governmental religious references from impermissible ones, and to avoid having to edit centuries of American cultural and political life. It's hard to imagine that article 2, section 5 of the 1907 Oklahoma Constitution was originally understood (or has been understood since then) as completely forbidding all religious references displayed on government property or with government funds.
Of course, it seems more likely that the Oklahoma Supreme Court isn't going to expurgate all these religious references from Oklahoma public property, and that it is indeed planning on reading article 2, section 5 as providing some latitude for some religious references—though not the Ten Commandments monument. And it's possible that some such rule might be developed.
But it struck me as odd that the court didn't even discuss what that rule might look like—especially given the quite broad and categorical interpretation of the constitutional provision offered in the court's opinion—and why the Ten Commandments monument by the capitol is different from "Invoking the guidance of Almighty God" in displays of the state constitution itself or from having a public school choir sing the entire Star-Spangled Banner (from the fourth verse: "Then conquer we must, when our cause it is just, and this be our motto: 'In God is our trust'").
5. Of course, I suspect the next challenge won't be to the Star-Spangled Banner, to displays of historical documents, or even to performances of religious songs, but to the inclusion of "under God" in state-run schools' administration of the Pledge of Allegiance. This argument has been rejected by other courts, and just last year by the Massachusetts high court, but the Oklahoma Supreme Court decision suggests that the court might be open to striking down "under God" in the Pledge on the same grounds as it used to strike down the display of the Ten Commandments monument.