To Comfort The Afflicted
And Afflict The Comfortable

To Comfort The Afflicted And Afflict The Comfortable

Tuesday, June 22, 2021

Observercast

The Constitutionality Of The Commandments

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BY DANNY M. ADKISON

The state legislature of Oklahoma keeps moving closer to allowing placement of a granite monument of the Ten Commandments on the grounds of the Capitol complex. This instantly raises the question of the possible unconstitutionality of this action. The key to understanding the logic of those proposing this is that it will resemble the granite monument found on the Capitol grounds in Austin, TX.

In case you don’ remember, the Ten Commandments granite monument located in Austin was judged by the U.S. Supreme Court to be constitutional in a celebrated case in 2005. It was a celebrated case not only due to the subject matter involved but also because the plaintiff [Thomas Van Orden] was a homeless lawyer.

The Oklahoma legislators touting the same size and type of monument for Oklahoma’s Capitol grounds clearly are thinking that if they copy the Austin monument it will be immune from legal challenge since the court has already upheld the Austin monument.
They are not only reasoning incorrectly, they are omitting another important fact that made the 2005 case significant.

That is the fact that the Van Orden case was one of two cases decided in 2005 dealing with the posting of the Ten Commandments. The other case dealt with the posting of the Ten Commandments in a Kentucky courthouse. The U.S. Supreme Court struck that posting of the Ten Commandments down as a violation of the “no establishment” clause of the First Amendment.

That’s right, it was a split decision. In fact, in his book God On Trial, Peter Irons makes the mistake of declaring that the split decision is indicative of the court’s confusion in this area of the law. He’s wrong.

The so-called split decision wasn’t due to the court’s confusion over how to rule in this area. The court has a clear test it has used in such cases since the 1970s. It judges a law by asking three questions: [1] Does the law have a secular purpose; [2] does the law have a secular effect; and [3] does the law avoid creating an excessive entanglement between church and state?

To be judged constitutional, a law has to receive a “Yes” to each of these questions. One “No” response and the court will declare the law unconstitutional.

Read the history behind the two Ten Commandment cases [Texas and Kentucky] and the facts are starkly different. In one case [Kentucky] it was clear the law was passed for a religious purpose while in the other case it wasn’t [Texas].

The important question is would the U.S. Supreme Court uphold Oklahoma’s placement of such a monument or not? State Sen. Jim Wilson, D-Tahlequah, was quoted in the press as stating that the state could be out a lot of unnecessary funds defending a monument that clearly the state has not seen the need for up to this point.

Is there any way to tell how the Supreme Court would rule?

I think it is fairly certain how the Supreme Court would rule on the proposed Ten Commandments monument. It would rule that the monument is unconstitutional. That it violated the “no establishment” clause of the First Amendment, because it did not have a secular purpose.

Predicting how the U.S. Supreme Court will rule in any case is about as difficult as predicting every victory in the NCAA basketball tournament. But we do have something to go on. The court has decided three Ten Commandments cases: In addition to the two discussed already, the court struck down the posting of the Ten Commandments in a public school in Kentucky.

Make no mistake about it, if Oklahoma does erect this monument, there will be a lawsuit challenging its constitutionality. What we don’t know is how long it would take such a case to reach the court, and if the membership would be the same as it is presently.
As it turns out that probably doesn’t matter since the first member to leave the court would probably be Justice Stevens or Justice Ginsburg. Either one, due to age or health issues, could end up resigning within the next year or so.

Both of these Justices voted to strike down the Ten Commandment postings and monument in the respective Kentucky and Texas cases. President Obama would, in all probability, appoint justices who would vote like them.

If the remaining justices on the court were to vote consistent with their positions in 2005, the outcome would be that Oklahoma’s actions would be judged unconstitutional.

No one wants to argue against the Ten Commandments. Neither do we want to encourage our state representatives to violate our nation’s “highest law.”

Sen. Wilson is correct: the monument would cost the state money in the end since it would have to defend its actions in a court case. The state would lose that case. Now, back to more pressing matters.

Dr. Danny M. Adkison teaches constitutional law at Oklahoma State University and is a regular contributor to The Oklahoma Observer

Arnold Hamilton
Arnold Hamilton became editor of The Observer in September 2006. Previously, he served nearly two decades as the Dallas Morning News’ Oklahoma Bureau chief. He also covered government and politics for the San Jose Mercury News, the Dallas Times Herald, the Tulsa Tribune and the Oklahoma Journal.