Oklahoma officials decided to put a Ten Commandments monument on Capitol grounds in 2012 and the decision has been coming back to bite them ever since.
A Hindu group made a similar request.
And then, the week before Christmas, the Oklahoma Capitol Preservation Commission in charge of giving the green lights to monuments, declared a moratorium on all monuments.
Their reason was that they were still dealing with the ACLU’s challenge to the original Ten Commandments monument and until they could figure out if that one was legal, they couldn’t really approve or deny any additional ones.
That lawsuit concerned the fact that the monument violated the Oklahoma state constitution which says that taxpayer money cannot be used, directly or indirectly, to endorse religion.
But what about the U.S. Constitution? The monument violates the First Amendment’s Establishment Clause as well as the Fourteenth Amendment’s right to equal protection, and that’s why American Atheists filed a federal lawsuit against Oklahoma state officials in January of 2014:
“I want to be clear about this: We have a religious monument, placed on government property, by government mandate,” said American Atheists President David Silverman. “That is an explicit violation of First Amendment protections of separation of religion and government. As though that isn’t going far enough, Oklahoma lawmakers have passed a law requiring that the monument endorse one specific religion, a clear violation of Fourteenth Amendment equal protection. There is now a law, on the books of Oklahoma, respecting the establishment of Christianity, which is grossly unconstitutional. The legislature has broken the law, plain and simple, and we are suing to right this wrong.”
AA’s lawsuit specifically called out state officials for passing a law “to permit and arrange for the placement on the State Capitol grounds of a suitable monument displaying the Ten Commandments.”
But my favorite part was that the lawsuit listed, one by one, how most of the Commandments went against the U.S. and Oklahoma Constitutions:
49. The first commandment, if it were part of Oklahoma law, would be unconstitutional, because it would establish, at a minimum, Jewish and Christian monotheism as the law of the land. The very bedrock of the First Amendment’s Establishment Clause is that the United States does not permit the establishment of a religion, the preference of religion over nonreligion, or the preference of one religion (or a subset of religions) over others.
50. The second commandment listed prohibits the making of “graven images.” However, if this commandment were part of Oklahoma law, it would fail as a violation of citizens’ free speech and expression rights protected under the United States and Oklahoma Constitutions. From the foundation of the United States, the making of graven images has been part and parcel of being an American, honoring our Founding Fathers, and honoring the United States.
51. The Ten Commandments Display may also be regarded itself as a “graven image” due to the imagery carved upon it along with the text. Works of art depicted in and around the Capitol building commonly depict various “graven images.”
52. The third commandment, as with the second, would be a violation of the United States and Oklahoma Constitutions. A prohibition of taking a name in vain, even of one subset of religion’s “Lord,” would in most cases be a violation of every citizen’s right to free speech and expression.
53. The fourth commandment is essentially a religious test, which would require citizens to remember a particular Sabbath Day and “keep it holy.” Originally, the Sabbath was Saturday. Christians generally have changed it to Sunday, although some Christian denominations consider Saturday the Sabbath. In any case, requiring citizens to engage in a religious practice is inconsistent with the First Amendment’s protection under the Establishment Clause. It would constitute both an establishment of religion, and also a clear restriction on citizens’ free exercise rights. The injunction that citizens must “remember” a Sabbath Day is, also, an invasion of their minds, which if enacted into law would reach the hand of government into the very thoughts of citizens.
54. The fifth commandment requires persons to honor their fathers and mothers without qualification or condition, and implies that failure to do so will result in a person’s shortened longevity. (“Honor thy father and thy mother that thy days may be long upon the land which the Lord thy God giveth thee.”) If enacted into law, the fifth commandment would not pass constitutional muster under the First Amendment.55. The sixth, seventh, eighth and ninth commandments are all commonly understood “wrongs.” Unjustified killing, unconsented adultery, stealing, and lying as a witness, are all commonly understood wrongs for which the law to one degree or another imposes a sanction. These are the only four commandments listed which bear any relation to lawful action by state or federal authorities relative to persons within their jurisdictions.
56. The last commandment listed on the Display imposes another invasion into the human mind. It effectively creates a “thought crime,” wherein the citizenry is enjoined not to “covet” certain items. The items listed include people such as one’s “wife” and “servant” as among “things” like homes and cattle that are possessed by people. Absent is a reference to thy neighbor’s “husband.” If this were part of Oklahoma law, it arguably would fail on Equal Protection grounds, unless torturously interpreted differently than its plain meaning.
I suspected that eyes would roll, as they always do, at the part describing the atheist plaintiffs’ “suffering,” as if they’re really undergoing any undue hardship…
This endorsement, and its converse coercive effect on those with faith traditions inconsistent with those supported by the Display, force Plaintiffs to endure a continuing violation of the peoples’ liberty of conscience, committed in their names as citizens of Oklahoma.
… Plaintiffs object to the use and display of the Display due its co-option of their religious traditions, resulting in a cheapening and degradation of their shared faith. Plaintiffs conduct ongoing activity at the State Capitol and/or plan to do so in the future so as to face direct confrontation and challenge from the Display’s message. Plaintiff [William] Poire simply avoids the State Capitol.
Still, I felt AA was in the right. The state allowed the Ten Commandments monument on government property in a way they didn’t do — and likely wouldn’t do — for any other group. They went out of their way to accommodate Christians. All people, regardless of religious beliefs, should be playing by the same rules but that’s not what happened here. For that reason alone, AA’s complaint carried weight with me, as does the ACLU’s.
The smart thing for state officials to do would be to just remove the Ten Commandments monument. If they did that, they could say no without reservation to the Satanists, Hindus, and every other group that’ll want to pay for a monument to be erected. If they leave the monument up, Oklahoma taxpayers will be on the hook for the state’s legal fees.
Last May, even though Oklahoma state officials had requested that AA’s lawsuit be dismissed, U.S. District Judge Robin Cauthron said the lawsuit could continue, albeit with an important caveat:
Neither party offers much legal support for their positions. However, at this stage of the proceeding the burden falls squarely on the shoulders of Defendants. As they have failed to meet this burden, their challenge to Plaintiffs’ Equal Protection claim will be denied.
Cauthron also noted that one of the plaintiffs, William Poire, lacks sufficient standing to bring about the challenge, so he will be removed from the suit.
Whether they’ll be successful has yet to be decided, but AA is clearly thrilled with the opportunity to continue this battle:
“The judge made the right call and we’re moving forward,” said American Atheists President Dave Silverman. “We expected the state to try to get our case thrown out, and we expected the judge to deny them. This isn’t about a slab of rock; what we have here is clear-cut discrimination. This is about a law, on the books in the state of Oklahoma, that explicitly and specifically endorses the Abrahamic god over all others. That is not only unconstitutional, it’s un-American.“
It may be unconstitutional, but AA’s challenge is effectively over. Yesterday, Judge Cauthron dismissed the lawsuit on standing:
To establish standing, Plaintiffs must demonstrate, at a minimum, three elements. First, injury in fact; second, a causal connection between the injury and the complained-of conduct; and third, a likelihood of redressability by a favorable decision.
Concluding that Plaintiff [Aimee] Breeze only saw the monument one time before filing the action, coupled with the fact that the contact’s sole purpose was to seek out the monument, the Court finds that Plaintiff has failed to establish the type of personal contact with a state-sponsored image sufficient to demonstrate the direct injury required for standing.
The decision also dismissed AA’s claim of standing on behalf of its members… because they couldn’t point to any members who’ve been legally injured.
For what it’s worth, this decision isn’t really surprising. Principle alone isn’t enough to win a lawsuit and it’s hard to prove in court that a violation of church/state separation “injures” you personally.
AA begs to disagree, saying in an email statement:
We are surprised and disappointed. Oklahoma is breaking the law and cannot hide behind standing. This monument remains unconstitutional and we will return.
No, they probably won’t.
The fate of the Capitol Grounds is far from decided even if this particular lawsuit isn’t going anywhere.
(Large portions of this article were posted earlier.)