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Attorney General Pruitt tries for rehearing in Ten Commandments case

Sarah Hussain / Red Dirt Report
The Ten Commandments monument outside of the Oklahoma State Capitol.
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ACLU lawyers contend AG is 'recycling' old arguments to keep monument issue alive

OKLAHOMA CITY – Oklahoma Attorney General Scott Pruitt has “recycled” old arguments in support of keeping the Ten Commandments monument on Capitol grounds, according to a court document filed by opponents of the display.

Attorneys for the American Civil Liberties Union of Oklahoma claim the state’s attorney has done nothing but rehash the same points made previously before the state Supreme Court which ruled 7-2 that the monument must come down.

Pruitt filed a request last week asking the Supreme Court for a rehearing in the case. A decision whether to grant the rehearing should be made within the next two weeks.

“There is nothing in this Court’s opinion that is inconsistent with Oklahoma’s Constitution or prior precedent. On the contrary, this Court’s ruling is entirely consistent with both, giving effect to the plain and unambiguous language of Article 2, Section 5 in precisely the same manner and using the same standards as in previous cases,” ACLU lawyers wrote in their response to the rehearing request.

The Supreme Court based its ruling on Article 2, Section 5 of the state Constitution, which prohibits state funds or property from being used to further any religion, church or sect, either directly or indirectly.

Pruitt claims in his rehearing request that indirect exposure to religion has been found permissible in other cases under Article 2, Section 5.

“Merely because the Ten Commandments may have some religious significance does not foreclose their historical and legal importance, and the Legislature is not prohibited by Article 2, Section 5 from recognizing its secular significance,” state lawyers wrote in their request.

Pruitt claims the Supreme Court did not explain how the Ten Commandments monument indirectly benefits any religion any more than the action deemed constitutional in other cases, such as a 1972 decision that upheld a 50-foot tall, lighted cross which stood on public property in Oklahoma City. Pruitt’s office also cited a 1959 Supreme Court ruling that allowed the construction of a chapel on the grounds of a state-owned orphan’s home where religious services would be conducted.

ACLU lawyers contend neither of those decisions precludes the Court’s ruling that the Ten Commandments monument placed at the Capitol runs afoul of the Oklahoma Constitution.

State lawyers once again argued in their rehearing request that the United States Supreme Court upheld the constitutionality of a nearly identical Ten Commandments monument placed on the state Capitol grounds in Austin, Texas.

However, as noted by the ACLU attorneys, the Oklahoma Supreme Court based its decision solely on the state Constitution and not the First Amendment, which prohibits the establishment of a state-sponsored religion.

“This case presents a question of state law, and this Court’s straightforward application of the plain and unambiguous terms of the Oklahoma Constitution to the facts of this case should not be abrogated merely because a different court with different jurisdiction, ruling upon different facts, under a different constitution once reached a different conclusion in a different case,” the ACLU lawyers wrote.

State lawyers also wrote in their rehearing brief that the Court’s decision would place in jeopardy much of the state Capitol artwork that possesses historical and spiritual symbolism.

“Similarly, an exhibit honoring the Magna Carta at the State Capitol may be forbidden by this Court’s decision because that Great Charter’s text premises itself on ‘the prompting of God and for the health of our sol and the souls of our ancestors and successors, for the glory of holy Church and the improvement of our realm,’” the state’s brief said.

ACLU lawyers called that argument a “red herring.”

“Nothing in the Court’s decision concerning the Ten Commandments monument endangers the maintenance of historical items that may merely acknowledge a religion,” the attorneys wrote.

Rehearing or not

With or without a rehearing, state lawmakers plan to introduce a joint resolution during the next legislative session calling for a public vote that would allow Oklahoma citizens to decide if Article 2, Section 5 of the state Constitution should be repealed.

Repealing that portion of the Constitution would allow the Ten Commandments monument to remain.

Gov. Mary Fallin has said she intends to keep the monument on Capitol grounds until all legislative and legal moves are exhausted. However, some legal analysts believe that type of action could wind up with the governor facing contempt charges.

Analysts believe the decision to remove the monument rests with the Oklahoma Capitol Preservation Commission, which is listed as the defendant in the lawsuit. Commission members are appointed by the governor.

One legal expert told Red Dirt Report it’s unlikely the justices would allow the governor or any other official – appointed or elected – to ignore their ruling.

State Rep. Richard Morrissette (D-Oklahoma City) said the governor’s comments are “nothing but arrogance, arrogance and more arrogance. It’s unbelievable she would ignore a decision by the state’s highest court.”

Morrissette, a longtime critic of Fallin and her administration, said the governor should be “taken to task” for her public comments to keep the monument.

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Tim Farley

Tim Farley is an award-winning journalist with more than 30 years of experience, including...

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