The American Civil Liberties Union of Oklahoma took a victory lap on Friday when an Oklahoma District Judge ordered the Oklahoma Capitol Preservation Commission to remove a Ten Commandments monument from the State Capitol grounds by October 12.
Not so fast, says the office of Governor Mary Fallin (R-OK) and the office of Attorney General Scott Pruitt.
“The relevant state officials have the judge’s order and are evaluating their options,” a spokesperson for the Oklahoma Attorney General’s Office tells Breitbart News.
Oklahoma Governor Mary Fallin’s office offers a similar statement.
“We—the governor and her staff– haven’t been able to sit down with the governor to evaluate the state’s options, we plan on doing that later this week, and hopefully will have a path forward,” a spokesperson for Governor Fallin tells Breitbart News.
While these statements are not to be taken as an indication that either Governor Fallin or Attorney General Pruitt intend to advise the Oklahoma Capitol Preservation Commission (“the Commission”) to defy the judge’s order, neither is it the kind of absolute surrender the ACLU of Oklahoma may have expected from the state in response to the judge’s order.
Instead, it is possible that both Fallin and Pruitt are looking for ways the Commission can comply with the judge’s order without actually removing the monument while the Legislature pursues a plan to submit a ballot measure to the voters of Oklahoma in November 2016 that will amend the State Constitution so that the Ten Commandments monument is unambiguously constitutional.
Since it is a state matter, the Oklahoma Supreme Court’s decision cannot be appealed to the United States Supreme Court.
In June, the State Supreme Court, in a 7-2 decision (Prescott v. Oklahoma Capitol Preservation Commission), ruled that “[b]ecause 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 State Constitution it is enjoined and shall be removed.”
Article 2, Section 5 of the Oklahoma State Constitution states:
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.
Anything short of complete surrender and removal of the monument by the Commission prior by the October 12 deadline would certainly be challenged vigorously and immediately by the ACLU of Oklahoma, but the Governor and the Attorney General do not appear to be ready to concede the fight.
And the 15 member Commission named as the defendant in the case that is subject to the judge’s order appears to be adrift and has no background in dealing with an unusual situation like this.
One commissioner, Linda Edmondson, tells Breitbart News, “we are hampered to some degree because we don’t have a chairman or co-chairman.”
The Commission’s website confirms both those positions are currently vacant.
Edmonson tells Breitbart News that the Assistant Attorney General assigned to the Commission had informed her previously that the most senior member of the commission could serve in an acting capacity, and that in one prior instance when something had a time deadline, she served in that capacity temporarily.
“We can act without a chairman,” Edmonson says.
Fellow commissioner Bruce Fisher confirms that statement.
“At our last meeting our Assistant Attorney General, Steven Barker, said that Mrs Edmonson did qualify to serve as acting Chair,” Fisher tells Breitbart News.
The Commission does not have a regularly scheduled meeting prior to the October 12 deadline set by the court, but both Edmondson and Fisher tell Breitbart News it is likely a special meeting will be called.
“I can guess we will have a special meeting before October 12,” Edmonson tells Breitbart News.
“I think that is safe to assume that the Commission will convene a special meeting,” Fisher tells Breitbart News.
The Ten Commandments monument issue was unusual, Edmondson tells Breitbart News, and outside the normal process of the Commission “because the State Legislature instructed us in 2009 to place the monument on the grounds.”
“They [the AG’s office] are working on options now,” Edmonson adds.
Those options may well reflect a desire not to give up on argument advanced by Attorney General Pruitt and co-counsel Hiram Sasser of the Liberty Institute in their brief to the Oklahoma Supreme Court that the law passed by the State Legislature authorizing the placement of the monument contained three findings to support the “historic purposes” of the Ten Commandments monument:
(1) That the Ten Commandments are an important component of the foundation of the laws and legal system of the United States of America and of the State of Oklahoma;
(2) That the courts of the United States of America and of various states frequently cite the Ten Commandments in published decisions and
(3) Acknowledgements of the role played by the Ten Commandments in our Nation’s heritage are common throughout America.”
“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,” the court concluded dismissively in its majority opinion.
That blatant hostility to the role of the Judeo-Christian heritage in the formation of the American Constitution and legal system strikes many in the conservative community as yet another example of judicial activism and legislating from the bench, a notion that particularly rankles the Republican members of the Oklahoma State Legislature.
“This fight is over the freedom to acknowledge what the Declaration of Independence explicitly declares and what the Framers of the Constitution believed: Acknowledging natural law and the role of divine providence as parts of the foundation of our form of government and the philosophical basis of our legal code. The purpose of the monument is to make that historically true statement, not to assert ten separate legal propositions,” one legal scholar on religious liberty tells Breitbart News.
Widespread dissatisfaction in the legislature and the executive branch at the court’s contemptuous dismissal of its “historic purposes” argument suggests that a longer term fight may be in the works to amend the constitution to remove or amend Article 2 Section 5. The earliest that could happen would be a ballot issue in November 2016, provided the legislature acts when it convenes in January.
But the ACLU’s Henderson applauds the Oklahoma Supreme Court’s decision.
“It’s about saying the state can’t do something that effectively supports a specific religious view or communicates or endorses a specific religious message,” Henderson tells Breitbart News.
“In no way does it mean that something will have to be removed simply because it contains a religious symbol or could have religious meeting. That’s not enough to trigger Article 2 Section 5’s mandate,” Henderson tells Breitbart News.
“Article 2 Section 5 is not trying to purge religion from public sphere,” Henderson says.
“That’s the problem with the Ten Commandments monument; its plain text explicitly instructs people on what they should and should not do,” he adds.
After the initial decision by the Oklahoma Supreme Court in June, the Liberty Institute issued a statement that included this comment by Sasser:
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?” Sasser says, citing multiple monuments around the capitol grounds. “Under the Court’s reasoning, because each of these is affiliated with religious imagery, it appears they must be torn down, as well.
There are several items with Native American imagery on the Capitol grounds that Sasser says could be considered religious in nature, including the statue on the top of the Capitol and the Spring of Life Rock Monument.
But Henderson at the ACLU disagrees.
“That’s the difference with something like the Spring of Life Rock Monument –that doesn’t tell me what I’m supposed to do,” Henderson tells Breitbart News.
That’s a view apparently shared by the Cherokee Nation, which is headquartered in Oklahoma.
“No, we do not believe this ruling extends to Native American imagery at the State Capitol, as it is not religious in nature,” a spokesperson for the Cherokee Nation tells Breitbart News.
THE ACLU will be watching like a hawk and can be expected to respond vigorously to any action by the Commission other than full compliance by October 12, as this August statement suggests:
And yes, ACLU of Oklahoma will continue to monitor the removal process.
“We understand that the state needs a reasonable amount of time to move and store the monument,” Kiesel said. “But we consider reasonable time in weeks and not months.”
Voters could also express dissatisfaction with the decision by voting no on the two judges among the seven-justice majority that ruled against the Ten Commandments who are up for a 2016 retention election, Taylor and Winchester. (Combs, who dissented, is also up in that same retention election.)
That strategy appears to be a long shot at best.
According to the Oklahoma Policy Institute, “The justices and judges of [all three of the state’s appellate courts, including the State Supreme Court] are appointed by the governor, who must select one of three candidates put forward by the Judicial Nominating Commission. Although their appointments may last for life, the judges of each court stand for reelection on six-year terms, which are staggered so that some portion of the state’s appellate judges will face reelection in every even-numbered year.”
“Judges need a simple majority to be retained. In the past, candidates for retention have tended to win with about two-thirds of the vote. No appellate judge has ever lost a retention election.”
In 2014, two State Supreme Court justices who voted in the majority to remove the Ten Commandments—Justice John Reif and Justice Joseph Watt—were retained with 59.0 percent and 59.9 percent yes votes respectively.
But 2016 may turn out to be a good year for election long shots.
It is a Presidential election year, and turnout is expected to be high, especially in a very conservative state like Oklahoma, which has cast more than 60% of its vote for the Republican candidate in every Presidential election since 2000. A Democratic candidate for President has not won the state’s electoral college votes since Lyndon Johnson in 1964.
Eight of the nine Oklahoma Supreme Court justices—and all seven in the majority that ruled to remove the Ten Commandments monument—were appointed by a Democratic governor.
The state’s Republican majority may keep that in mind when they go to the polls next November.