Last week, the Collegian ran articles on several of the upcoming state questions, including one on State Question 790. If adopted, the question would repeal a portion of the state constitution that has been used to keep a monument of the Ten Commandments off of the state capitol grounds. That article argued that Oklahomans should not vote to repeal the amendment because a) Oklahoma has many more pressing issues and b) doing so would allegedly repeal the principle of the separation of church and state. Several of the points in the article need addressing.
To be clear, the Oklahoma Supreme Court did not base its decision on the First Amendment. In fact, the United States Supreme Court ruled in 2005 that an identical monument at the Texas State Capitol did not violate the Establishment Clause. Rather, the Oklahoma Supreme Court based its ruling on Article II, Section 5 of the Oklahoma constitution.
That provision reads “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.”
The case in which the Oklahoma Supreme Court ruled on the Ten Commandments was Prescott v. Oklahoma Capitol Preservation Commission and decided in 2015. The court decided, I think reasonably, that the Ten Commandments have a major religious component and therefore violate Article II, Section 5.
However, that decision appears to go against prior precedent, or, at the very least, significantly complicates existing precedent. In 1972, the court ruled in Meyer v. Oklahoma City that a 50 foot tall cross on Oklahoma City fair grounds that was to be maintained with government funds did not violate the amendment. It ruled that the cross did not obviously display any sectarian purposes. Some people have speculated that the reason for the difference is that the Ten Commandments explicitly references religious ideas, while a cross doesn’t, since it has no text. Perhaps this distinction should be made, but I think for most people, the cross generally is just as much of a religious symbol as the Ten Commandments.
Still, even assuming that Prescott did violate prior precedent, that in and of itself is not an argument for the Ten Commandments being on the state capitol grounds. Actually, I don’t believe the Ten Commandments should be there (it doesn’t bother me that much, though). Also, I do concede that repealing Article II, Section 5 would probably result in the Ten Commandments being returned to the state capitol. However, I still believe that it should be repealed.
Firstly, there is no concern that repealing it would result in the end of the “separation of church and state.” Last week’s article states that if a repeal takes place, “the opportunity opens up for threats to individual liberty to emerge, as well as for the preference to go to various religions.” It also asks “what’s to stop public resources from being used to enforce religious creeds in public schools?” None of these things would happen with repeal.
For one thing, Article I, Section 2 of the Oklahoma constitution states in part that “Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights.” That should cover individual liberty generally, even though the provision does not necessarily prohibit state involvement in religion entirely.
Article I, Section 5 does prevent religious creeds from being enforced in schools, though. It reads in part, “Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control.”
Still, both of those provisions, without Article II, Section 5, could leave room in the state constitution for non-school related involvement in religion. However, because of the doctrine of incorporation, Oklahoma has to follow the First Amendment of the Constitution of the United States. It does prevent the state from promoting religion. Furthermore, Oklahoma could repeal both of the previous provisions and be left with no fewer protections. Lawsuits would just have to be brought in federal court under the First (and Fourteenth) Amendments rather than in state courts under the Oklahoma Constitution.
Thus far I’ve attempted to show is that repealing Article II, Section 5 would not produce any infringements of Oklahomans’ civil liberties. That alone would not be enough to repeal the provision. However, as it stands, Article II, Section 5 does have negative effects. It reads rather broadly and bans state involvement in tangentially religious matters that still exhibit a mainly secular purpose.
For instance, Oklahoma has been banned from providing transportation to religious schools. Also, even though the state ultimately won the legal dispute, a school voucher program for disabled children was alleged to be unconstitutional by its opponents because of Article II, Section 5. That voucher program allows students to use state money to go to a different school of their parents’ choosing. Since religious schools were included, some people thought it violated the state constitution. Perhaps both of these things are bad policies. If so, they should be defeated on the merits rather than through lawsuits.
As stated earlier, without Article II, Section 5, non school-related state involvement in religion would be permitted by the state constitution (though not by the federal constitution). I would support a measure to fill that hole with something more in line with the First Amendment. For instance, the state constitution could be amended just to ban “the establishment” of religion. That language would mirror the language of the First Amendment. Such a provision would still keep the government from recognizing an official religion, but it wouldn’t ban viewpoint-neutral laws that happen to support religion indirectly.
However, as it stands, Article II, Section 5 can at times be overly broad. Its language is absolutist and bans both direct and indirect support. It has no formal exception for laws with a secular purpose or that are viewpoint neutral. Of course, courts have sometimes allowed these sorts of legislation anyway, but the broad language allows for a greater chance of such laws being struck down. Even if the laws survive, the broad language invites more lawsuits. In short, repealing Article II, Section 5 would not decrease religious liberty in Oklahoma and would allow the state more flexibility with laws that might have religious involvement but still have a secular purpose.