The Oklahoma Supreme Court ruling last week that a Ten Commandments monument must be removed from the grounds of the state Capitol prompted outrage, drew praise and posed a question: Will controversy over religious displays ever end?
For many legal scholars, the outsize role that religion plays in America made the possibility unlikely.
“It’s a symbolic fight about how people understand their country,” said Charles Haynes, director of the Religious Freedom Center in Washington.
“There are very many Americans who believe that unless we acknowledge our roots and Christian tradition as a country, we will fail,” he said, pointing to Oklahoma. “This is one of a number of efforts that have been made over the course of our history to reassert that understanding of America.”
The Oklahoma case was not the first involving the Ten Commandments.
The U.S. Supreme Court has taken up the topic as well and in 2005 issued two rulings with pointedly different conclusions.
The first decision, in McCreary County vs. ACLU, concerned displays of the Ten Commandments in Kentucky courthouses. Other documents were displayed as well, such as the “endowed by their creator” passage from the Declaration of Independence. The court barred the displays, saying they clearly promoted the commandments, rather than educated viewers about historical documents.
The second decision, in Van Orden vs. Perry, found that a 6-foot-tall monument at the Texas Capitol inscribed with the Ten Commandments was constitutional.
In that case, the court said the monument, erected decades earlier, was one of 21 historical markers and 17 monuments on the vast lawns of the Capitol and, in that context, more historical than religious.
“In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message,” wrote Justice Stephen G. Breyer, the court’s swing vote in both 5-4 cases, in a concurring opinion.
It was that case that led Oklahoma lawmakers to believe they had leeway in building a Ten Commandments monument in Oklahoma City.
The Legislature passed a bill in 2009 calling for a 6-foot-tall monument identical in design to its Texas counterpart — one carved from granite, embellished with the Star of David and Greek letters. It would be located near monuments bearing Native American symbols.
Hiram Sasser, a defense attorney for the Oklahoma Capitol Preservation Commission, said he thought the monument was legally sound. The Legislature was aware of the narrow window opened by the Supreme Court with Van Orden allowing religious monuments in public spaces.
“Never in a million years was anyone ever anticipating they’d strike it down,” said Sasser, referring to the Oklahoma Supreme Court decision declaring the monument unconstitutional. “The only way I can put it is that I feel like I have a stack [of cases] about 10 feet high that says why this monument is OK.”
Although the Oklahoma case seemed similar to the Van Orden case, a different issue was at stake in Dr. Bruce Prescott, James Huff, Donald Chabot and Cheryl Franklin vs. Oklahoma Capitol Preservation Commission. The question was whether the Ten Commandments monument violated the Oklahoma Constitution — not the 1st Amendment.
Earlier rulings suggested the Oklahoma Supreme Court might call the monument constitutional. In 1959, the court allowed the use of public funds to build a chapel on government-owned property; the chapel was nondenominational, so it did not endorse a particular faith.
In 1972, the court ruled that a 50-foot-tall Latin cross installed on government property in Oklahoma City was constitutional because its placement would not benefit any particular institution.
The court did not mention either of those decisions when it ruled 7 to 2 on June 30 that placement of the Ten Commandments monument, just feet from the Capitol, violated a clause in the Oklahoma Constitution prohibiting the use of public money for the indirect or direct benefit of any religion.
“As concerns the ‘historical purpose’ justification, the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths,” wrote the majority in their opinion.
It was a decision that highlighted an age-old controversy over religious displays, frequently played out in the courts, which have come to define American life.
Sarah Gordon, a professor of constitutional law at the University of Pennsylvania, said the political import of such displays stemmed from the Cold War, fueled in part by Hollywood.
In 1954, two words, “under God,” were added to the Pledge of Allegiance, and in 1956, “In God we trust” replaced “E pluribus unum” as the country’s motto. President Eisenhower enacted both changes.
After Charlton Heston starred in the Academy Award-winning epic “The Ten Commandments,” one of the most successful films of all time, the Fraternal Order of Eagles began to erect Ten Commandments monuments to deter juvenile delinquency, leaving a lasting mark around the country. According to Gordon, the political value of such monuments was clear.
“They really were very closely identified with defending conservative American values in front of radical communist threats,” she said.
The Ten Commandments monuments will remain a point of contention — intrusive religious displays to some, valuable reminders of history and culture to others.
“It’s a continuing clash of people who have diametrically opposed views,” said the Religious Freedom Center’s Haynes. “It’s not going away.”
Neither will the Oklahoma monument.
Last week, Oklahoma Atty. Gen. Scott Pruitt, with the support of Republican Gov. Mary Fallin, filed a petition requesting a rehearing of the Ten Commandments case.
“Additionally,” Fallin said in a statement Tuesday, “our Legislature has signaled its support for pursuing changes to our state Constitution that will make it clear the Ten Commandments monument is legally permissible. If legislative efforts are successful, the people of Oklahoma will get to vote on the issue.”
In the meantime, the monument still stands as the legal wrangling continues.