In a few days, Oklahoma will vote on whether or not to repeal the ‘Blaine Amendment’ in our state constitution by passing SQ 790. The proclaimed goal of the change is to allow the posting of the Ten Commandments on public grounds. Is it constitutional for government to make this happen? What if they merely allow it to happen? Is it constitutional for them to prohibit it if someone else wants it to happen?

Turns out the answers are a bit messy. 

In Stone v. Graham (1980), it was determined that schools could not post the Ten Commandments or other religious materials in classrooms without historical or other pedagogical context – even if the materials were paid for by private money. Then again, that’s school – not the State Capitol. 

In 2003, Alabama and Tennessee handled debates over the Ten Commandments in government offices by either firing the offender (Alabama) or moving the display to a slightly more private location, although still on government property (Tennessee). Neither situation reached the Supreme Court. 

It was in 2005, though, that things got really interesting. On the same day, the Supreme Court announced its decisions in both McCreary County v. ACLU of Kentucky (2005) and Van Orden v. Perry (2005) – both cases involving the Commandments on public land. While Kentucky’s displays were determined to be unconstitutional, the monument in Texas was acceptable. Both were split decisions, and the difference came down to context – both the displays themselves and the history behind them – and intent. 

That’s where we left off last time. And now… now things get even murkier. 

The little town of Pleasant Grove, Utah, allowed privately donated displays in its public park. Among the items placed there as of 2008 was a monument of the Ten Commandments – donated by that same Fraternal Order of Eagles group we met in Van Orden. The problem in this case didn’t stem from anyone’s request to remove the Commandments – quite the opposite. Instead, another faith wished to place their own monument in the park as well. 

Summum is a faith and/or philosophy which originated in the 1970s, although it draws on ideas and sources from ancient times. It’s built around the Seven Aphorisms in the same way one might argue Judeo-Christian traditions are anchored in the Ten Commandments. According to Summum teaching, Moses was given these Seven Aphorisms by God on Mount Sinai, engraved on twin tablets. The Israelites were not ready, however, and Moses smashed the originals in frustration. 

Moses returned with a second set of tablets, this time inscribed with “lower laws” which were more readily understood. These were the Ten Commandments, basic guidelines providing a starting place for the Israelites to grow and develop themselves.  

Side Note: Summum produces a “spiritual nectar” – wine, by worldly legal definitions – infused with various “resonations” to help absorb spiritual concepts. Each variation contains a different concept, so followers consume whichever nectar corresponds to the truth they’re seeking that day. Presumably, it helps loosen up one’s understanding. 

I, for one, find this a brilliant addition to any theology. They also have this thing about mummifying yourself and your pets after death which I’m much less excited about, but perhaps with enough “enlightenment nectar”…

In any case, the Summum church wanted to place a monument of the Seven Aphorisms in the park. They thought it would make a nice companion piece to the Ten Commandments already there. The city of Pleasant Grove disagreed. The mayor denied Summum’s request because the monument did not “directly relate to the history of Pleasant Grove.”

So here’s the question – is Pleasant Grove constitutionally required to accept all religious monuments if it accepts any religious monuments? 

The Summum convinced the 10th Circuit Court of Appeals that it was. This decision was overturned when the case reached the Supremes, but it’s worth noting the initial leanings of the Circuit Court whose purview includes Oklahoma. 

Of course, lower courts generally defer to decisions from higher courts – that is, after all, the whole idea – and the 10th will no doubt follow the lead of the Supreme Court if they think the case before them is comparable to something previously decided. But if there are critical differences in the details – and there are almost always critical differences in the details – things might easily go the other way. 

The Supreme Court found that Pleasant Grove had a right to decide what was and wasn’t posted in its park – there was no “establishment” or “free exercise” issue. The decision was unanimous, but in addition to the majority opinion there were four separate concurring opinions submitted. This suggests that while the outcome was clear, the reasons behind it were varied. That matters the next time a similar case comes up – the results might depend on those critical details we just mentioned. 

The majority opinion in Pleasant Grove v. Summum (2009) went something like this…

The placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

A government entity is entitled to say what it wishes and to select the views that it wants to express. It may exercise this same freedom when it receives private assistance for the purpose of delivering a government-controlled message. This does not mean that there are no restraints on government speech, but neither do they have to send messages which don’t represent their views. 

Here, the Park’s monuments clearly represent government speech. Although donated, the City has “effectively controlled” their messages by selecting monuments that present the image that the City wishes to project to visitors; it has taken ownership of most of the monuments in the Park, including the Ten Commandments monument; and it has expressly set out selection criteria. 

A park is different from a forum at which many different speakers might represent many different viewpoints. Monuments are also different than holiday displays or temporary demonstrations favoring one belief or idea over another. The city has a right – within reason – to determine what’s appropriate for a permanent installation. If anyone can place any message in the park, it will soon be all messages and no park. 

Point of Interest: The Summum tried to put up the same monument in a different city – Duchesne, Utah. In Duchesne, there was only one monument in the park – the Ten Commandments. After the decision in Pleasant Grove, Duchesne realized that they would be unable to refuse the Summum. An assortment of statues may be cultural and historical, but a single monument is “establishment of religion.” 

They relocated the Ten Commandments to avoid the lawsuit. 

There was one other case of interest in 2009 which involved a display of the Ten Commandments. This one never made it to the Supreme Court, but was decided by that same 10th Circuit Court mentioned above. 

Haskell County, Oklahoma, had a Ten Commandments monument on their Courthouse lawn, along with several pieces honoring military veterans of various wars. James Green, a local resident, believed the monument violated the separation of church and state. With the help of the ACLU, he sued to have the monument removed.

The 10th Circuit Court of Appeals ruled in favor of Green. Haskell county commissioners appealed the decision, but the Supreme Court of the United States declined to hear the case. When that happens, the decision of the lower court stands. 

In other words, during the same year the Highest Court was confirming Pleasant Grove’s right to pick and choose park displays, it was perfectly comfortable with Haskell County being forced to move their copy of the Ten Commandments. 

I might have mentioned earlier how often the difference is in the details…

The Haskell monument was moved to the lawn of the American Legion, only a few feet away from the courthouse, where it remains today. Much like the graven image at the OCPA, within throwing distance of the State Capitol, anyone wishing to view the Ten Commandments can easily do so within easy reach of government land – just not ON that government land.

There’s one last case, from only a few years ago. 

The city of Bloomfield, New Mexico, allowed the installation of a ginormous Ten Commandments monument on the front lawn of City Hall. While technically funded by private money, the proposal and oversite were the work of Kevin Mauzy, a member of the City Council. 

Two locals objected to the monument as a government endorsement of religion and sued. The 10th Circuit Court of Appeals confessed the issue was somewhat tricky in light of McCreary County v. ACLU of Kentucky (2005), Van Orden v. Perry (2005), and other related precedents. In the end, however, the monument was ordered to be removed. 

It’s possible that Felix v. Bloomfield (2014) is still being appealed, but I was unable to find any indication it’s going to the Supreme Court anytime soon. That means that the 10th District Court – the highest level of Federal Court likely to hear any case involving an Oklahoma monument – has consistently ruled for removal of religious artifacts from public grounds. The Supreme Court has slightly less consistent, finding at least one circumstance (in Van Orden) in which context and history offset any First Amendment concerns, but otherwise rejecting state efforts to “contextualize” religious displays after the fact – especially when the clear goal is to make a statement via the Ten Commandments. 

Needless to say, Oklahoma’s efforts are very much of the latter sort. Only quite recently have proponents begun trying to pretend they want anything other than to be ‘King of the Religious Mountain’ with this issue. 

Should SQ790 pass and the state proceed with relocating the Ten Commandments to Capitol grounds, we’ll no doubt quickly hear from the Satanic Whoevers and other non-Christian faiths, demanding to erect their own idols as well. While the decision in Pleasant Grove might give hope to those wishing to prevent a ram-horned Satan smiling down on innocent children from crowding out the “Thou Shalt Nots,” we will at the very least be looking at years of expensive litigation, with limited odds of long-term success – especially if any slightly more mainstream religions choose to get involved. 

None of which has historically mattered to state leadership when it comes to throwing red meat to their constituents. As long as they can keep the masses convinced their guns are about to be taken, their kids forced to turn gay in order to graduate high school, or the Mooslims coming to enforce Sharia Law, they continue to be voted back into office. At the rate they’re decimating public education, there’s no reason to think things will be changing any time soon. 

Too bad there’s not a “Thou Shalt Not” about that. 

Related Post: Wall of Separation – The Ten Commandments, Part One

Related Post: Building A Wall of Separation (Church & School)

Related Post: Missing the Old Testament

In about a week, Oklahoma will vote on whether or not to repeal the ‘Blaine Amendment’ in our state constitution by passing SQ 790. According to proponents, the primary impetus behind this change is the re-installment of a ginormous graven image of the Ten Commandments on Capitol grounds. In practice, passage would open up a legion of church-state issues – including, but not limited to, the voucher-palooza much of current leadership has been craving for so long. 

But what about the stated purpose? Is it constitutional to post the Ten Commandments on public grounds? Is it constitutional to prevent it, if someone else wants to put them there? The short answer to both questions is… Yes. Sort of. But not really. So, no. Well… maybe.  

The First Amendment contains two specific clauses pertaining to religion. The first says that “Congress shall make no law respecting an establishment of religion” – the government can’t do anything to push a particular faith or favor religion over non-religion. This is known as the “Establishment Clause.” The second bit says “…or prohibiting the free exercise thereof” – meaning that the government also can’t discourage faith or punish religion over non-religion. This is called the “Free Exercise Clause.” 

As anyone who’s ever had good friends go through an ugly argument knows, neutrality is far more difficult in practice than it sounds in theory. “Staying out of it” isn’t always possible. Responsible government, then, makes a good faith effort to avoid straying far into either danger – an imperfect balancing act at best, and one often complicated by strong emotions on all sides.  

It’s difficult to say which has historically done the greater damage – a government that oppresses religion or a government that supports it. The first tends to end very badly for temporal authority; the latter tends to undermine the faith so favored. 

So what has the highest court in the land said about the Ten Commandments on public property? Quite a bit, actually…

In Stone v. Graham (1980), the Supreme Court determined that posting the Ten Commandments in public school classrooms without context or educational purpose violated the Establishment Clause, and was thus unconstitutional. While it’s perfectly appropriate – even essential – to teach about faith as part of history, or to better understand literature, culture, or art, the disconnected posting of Bible verses is a big no-no. 

But that’s school. Children are essentially a captive audience, and minors at that. What about government properties primarily utilized by grown-ups, who can drive and buy wine coolers and really ought to have better musical tastes by then? Do the rules change?

The Ten Commandments made the news in 2003 when a Chief Justice in Alabama and county officials in Tennessee posted copies of the Ten Commandments in their respective buildings – buildings paid for and maintained by government dollars for public purposes. Neither ended up in the Supreme Court, but defiant defenders of the displays clashed with civil libertarians verbally and emotionally. Add TV cameras and other local press, and… shenanigans! 

The Alabama Justice lost his position over his refusal to remove the monument. In Tennessee the issue bounced around a bit until the county sheriff agreed to relocate the Commandments from the lobby to his office – still government property, but less ‘public,’ I suppose. 

The issue picked up speed in 2004-2005. 

Two different counties in Kentucky posted copies of the Ten Commandments in their courthouses. The ACLU sued, as they are wont to do, on the grounds that such displays violated the Establishment Clause. The counties responded that they weren’t displaying the Commandments as religious statements – pshaw! They were acknowledging “the precedent legal code upon which the civil and criminal codes of… Kentucky are founded.” Duh. 

The District Court – the lowest level of federal court, where these sorts of cases almost always begin – applied what’s known as “The Lemon Test.” This was an informal checklist established in Lemon v. Kurtzman (1971) and often utilized thereafter to determine whether or not a government action violated church-state separation. It’s not a hard-and-fast rule by any means – several Justices over the years have openly rejected it – but it does come up fairly regularly in these sorts of cases, and it made sense for the local district court to utilized it here. 

The Lemon Test:

1. A law must have a secular legislative purpose.

2. Its principal or primary effect must be one that neither advances nor inhibits religion. 

3. The law must not foster “an excessive government entanglement with religion.”

The district court didn’t get past the first question. There was no secular legislative purpose, so bang – you lose. Thanks for playing, Kentucky – sucks to suck. 

Not a people to go down easily, the counties revised their displays. They added a title, “The Foundations of American Law and Government,” and additional documents – excerpts from the Magna Carta, the Declaration of Independence, the Star Spangled Banner, etc. There was even a nice picture of Lady Justice, blindfold and all, holding the very scales Kentucky hoped to tip in their favor through these modifications. 

The presentation emphasized the role of faith and the ‘Almighty’ in the development of the United States. They were largely ‘secular’ documents, but the cumulative message was one of divine guidance and inspiration. 

This second effort didn’t make it to the Supremes. The Sixth Circuit Court of Appeals shot it down, explaining that the addition of other items without any particular connection to the Ten Commandments didn’t change the religious nature of the display. 

Don’t worry, though, kids – Kentucky will be making yet another attempt before we’re through. 

On the same day the Supreme Court announced its decision in McCreary County v. ACLU of Kentucky (2005), it addressed a similar case from Texas – Van Orden v. Perry (2005). Court-watchers were surprised to learn that while Kentucky’s displays were unconstitutional, a seemingly similar display in Austin, Texas, was determined to be acceptable. What was the difference?

The Texas display included an imposing six-foot monument inscribed with the Ten Commandments, so it wasn’t a matter of subtlety. This particular item, however, was located on the extensive grounds surrounding the State Capitol – grounds filled with sundry other icons related to the history and cultures of Texas. It had been donated forty some years before by the “Fraternal Order of Eagles,” a very non-religious civic organization, with additional support from Cecil B. DeMille – the producer/director behind “The Ten Commandments” and numerous other Hollywood blockbusters. 

The Ten Commandments monument itself incorporated traditional American iconography – an eagle grasping the American flag and an eye inside of a pyramid – as well as two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. Surrounded by various war veterans, heroes of the Alamo, representative homesteaders, and even a replica of the Statue of Liberty, It was firmly established as an element of Texas culture and history. 

Essentially, the question came down to context and intent. The Kentucky displays were clearly part of a pattern to test church-state limits and nudge religion into the public sphere as a matter of principle or political maneuvering, while the Texas display was reflective of the religious – and generally audacious – nature of Texans. 

Not that it was as clear-cut as the explanation makes it seem. Both cases were decided by split 5-4 votes, and 8 Justices voted the same way both times. The difference was a single Justice, Stephen Breyer. He saw a difference in the two which eight other Justices did not – thus shaping jurisprudence and history for the foreseeable future. 

Kentucky made one more run at it in 2010. They claimed to have “fixed” the problems with their original display and that it was no longer unconstitutional. What makes this claim… well, weird, is that the display itself hadn’t actually changed. Instead, Kentucky argued that their motivation – a significant reason they’d lost five years before – had evolved. Now they merely wished to include the Commandments as part of a “commemoration of historical documents.” The same display had magically become constitutional, because… history and culture! Like Texas! 

In short, they wanted ‘backsies’. (As a back-up argument, they hoped the Court would consider getting rid of that ‘Lemon’ thing no one liked.)

The Sixth Circuit Court didn’t buy this “new context” even a little. Kentucky could not come back five years later and pretend none of the history associated with their efforts had occurred and none of their prior arguments had been made. Justice may be blind, but that didn’t mean it had mandatory short-term memory loss. (And we’ll decide when we’re through with the Lemon Test, thank you very much.)

Sorry, Kentucky – if you want to see the Ten Commandments displayed, you’ll have to go to Austin. 

Related Post: Wall of Separation – The Ten Commandments (Part Two) 

Related Post: Building A Wall of Separation (Church & School)

Related Post: Missing the Old Testament