The scenario has become very predictable: another religious monument on public property, another lawsuit seeking its removal. Like clockwork, when Dr. Mike Ritze, a member of the Oklahoma House of Representatives, publicly said that he would donate a Ten Commandments monument to the state of Oklahoma, it was only a time before an organization which supports church-state separation filed a lawsuit.
To no one's surprise, the ACLU of Oklahoma recently sued the Oklahoma Capitol Preservation Commission to compel the removal of Ritze's-donated six-feet tall red granite Ten Commandments monument from the grounds of the Oklahoma State Capitol. (Prescott v. Oklahoma Capitol Preservation Commission (D. Ok., complaint filed August 19, 2013)).
I have a particular interest in Ten Commandment monument cases since I began reviewing them for an amicus brief I filed in Pleasant Grove City v. Summum, 555 U.S. 460 (2009) on behalf of the American Humanist Association and six other nonprofit organizations. The Supreme Court held in Summum that monuments on public property, whether purchased by a governmental entity or donated to it, are "government speech" and that governments have the right to determine their own speech subject to constitutional limitations. Thus, in Summum, the plaintiff Summum (religious organization) could not force Pleasant Grove City to accept a monument of its seven aphorisms notwithstanding the fact that the city had permitted the Fraternal Order of Eagles to erect a Ten Commandments monument in Pioneer Park in 1971. (The issue of whether of the Ten Commandments monument in the city park violates the Establishment Clause was not litigated because Summum's sole interest was to have its own monument placed in the park.)
The United States is a secular nation. The Constitution, which established a federal government with "limited" (or enumerated) powers, granted no authority to the legislative (Congress), executive (president) or judicial branches to act in the religious sphere. In fact, the Constitution does not even mention the word "God." "Religion," however, is mentioned three times. First, Article VI forbids any religious test for public office. Second, the Establishment Clause of the First Amendment prohibits Congress from making any law "respecting an establishment of religion." And third, under the Free Exercise Clause of the First Amendment, Congress is prohibited from passing any law prohibiting "the free exercise [of religion]." It is important to keep in mind that "law" in the context of the First Amendment is broadly interpreted by the courts to include any governmental act. It is also important to keep in mind that the prohibitions of the First Amendment apply to the states via the liberty interests protected by the Due Process Clause of the Fourteenth Amendment.
The Supreme Court has interpreted the Establishment Clause to mean that government cannot prefer one religion over another, or religion over nonreligion. This is sometimes referred to as the neutrality test. See, for example, McCreary County v. ACLU of Kentucky, 545 U.S. 844, 860 (2005). Alternatively, the Court has employed the Lemon test which holds that governmental acts must have a secular purpose, must not have the primary effect of either advancing or inhibiting religion AND must not result in an excessive government entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971).
With this constitutional law analysis as a backdrop, the facts in the Oklahoma Ten Commandments case are similar in three major respects to the Ten Commandments case Van Orden v. Perry, 545 U.S. 677 (2005). First, the monuments in both cases were donated by individuals or nonprofit organizations to the states to be placed on their capitol grounds. Second, the state legislatures of Texas and Oklahoma authorized the placement of a Ten Commandments monument on their capitol grounds. And third, the Texas and Oklahoma Ten Commandments monuments are virtually identical in appearance -- Representative Ritze copied Texas monument hoping that the courts will simply say what's OK for Texas is OK for Oklahoma.
Notwithstanding the Van Orden decision holding that the Texas monument did not violate the Establishment Clause, I believe that the U.S. District Court (Fifth Circuit or the Supreme Court) will hold that the Oklahoma monument violates the Establishment Clause and order its removal from the Oklahoma state capitol grounds. This result is not a slam dunk. There are many Christian Right leaning judges that don't faithfully enforce the First Amendment's prohibition "respecting an establishment of religion." These judges, instead, will assert that Oklahoma has a valid secular purpose for displaying a Ten Commandments monument such as to honor the history of Oklahoma. Justice Stevens succinctly, and in my view correctly, stated in his dissenting opinion: "The sole function of the monument on the grounds of Texas' State Capitol is to display the full text of one version of the Ten Commandments." (Van Orden, at 707.)
Second, the defendants will rely heavily on the 2005 Van Orden decision. However, as I will blog at length in the coming weeks, the numerous rationales expressed by Chief Justice Rehnquist in his plurality opinion are either deceptive or wrong. (I have been working on a book for several years, tentatively titled Supreme Scandal: The Supreme Court Blesses the Ten Commandments, which reviews the Fraternal Order of Eagles Ten Commandments program and the various court cases that ensued.) Thus I ask readers to be patient for a discussion
And third, I believe the key difference between Van Orden and the present case is that the Ritze's monument is "new" in contrast to the Texas monument which was erected in 1961 -- 40 years prior to filing a law suit. Personally, this point is irrelevant. However, Justice Breyer focused in his concurring (and perhaps controlling) opinion on the fact that it took an objector to the Texas Ten Commandment monument 40 years to come forward. Justice Souter, in his dissenting opinion, responds to this argument: "I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause." (Van Orden, at 747.)
When will they ever learn,
Oh when will they ever learn . . .
That governments have no religious role to play in our government.
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