Sooner State Showdown

Oklahoma Voters Set To Decide Fate Of State Constitution's Religious Freedom Clause

Oklahoma voters will make crucial decisions about their political future this November, and only one concerns the White House. They’ll also have the opportunity to remove a clause from the state constitution that defends the separation of church and state.

In April, state lawmakers in both chambers of the legislature passed a measure that puts Section 5, Article 2 of the state constitution up for a vote. If voters decide to strike the clause, it would weaken the restriction on public dollars flowing to religious schools, ministries and groups: Section 5 is a “no-aid” or “no-preference” clause that prohibits public support for certain religious activities.

“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,” it reads in full.

Dozens of other states have similar provisions on the books. They are sometimes attacked by opponents of church-state separation, but Oklahoma’s battle is unique in that it was inspired by a spat over a Ten Commandments display.

The referendum’s advocates say they’re reacting to the fate of a 6-foot-tall granite Ten Commandments monument that once stood on the grounds of the state capitol. Lawmakers authorized the display in 2009 and erected it in 2012; state Rep. Mike Ritze (R-Broken Arrow) spent $10,000 of his personal funds on the display.

When pushing the monument, lawmakers didn’t bother to disguise their sectarian motivations. The bill authorizing construction of the display asserted that the Ten Commandments “are an important component of the foundation of the laws and legal system of the United States of America and of the State of Oklahoma.”

But the monument did not go unchallenged. The Satanic Temple, a humanist group that works to defend church-state separation, announced plans to create a statue of Baphomet, a goat-headed deity associated with the occult, to stand alongside the Ten Commandments.

Predictably, lawmakers balked at the idea.

“This is a faith-based nation and a faith-based state,” State Rep. Earl Searles (R-Bartlesville) told Tulsa World at the time. “I think it is very offensive they would contemplate or even have this kind of conversation.”

The Oklahoma Capitol Preservation Committee later blocked Bapho­met and the Universal Society of   Hinduism’s proposed statute of Hanu­man, a Hindu god, until the conclusion of a legal challenge to the Ten Commandments display.

In due time, an American Civil Liberties Union (ACLU) lawsuit toppled the monument before it could be joined by either the Satanic symbol of enlightenment or the Hindu avatar of Lord Ram: In June of 2015, the Oklahoma Supreme Court ruled 7-2 that the monument’s presence at the State Capitol violates the no-aid clause of the state constitution. 

“The Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths,” the court stated. “Because the monument at issue operates for the use, benefit or support of a sect or system of religion, it violates Article 2, Section 5 of the Oklahoma Constitution and is enjoined and shall be removed.”

Some lawmakers objected at the time, characterizing the verdict as an attack on their religious freedom. Gov. Mary Fallin (R) even suggested passing a constitutional amendment authorizing the monument. Fallin’s administration, its legislative allies and Religious Right groups complained about the ruling to no avail. State workers removed the monument in accordance with the court’s verdict last year.

“The Oklahoma Supreme Court opinion striking down the Ten Commandments monument on the Capitol grounds can only be described as shooting from the hip,” an outraged Ritze wrote in an editorial for the Oklahoman. “While the outcome is disappointing, the ‘opinion’ itself is woefully inadequate and embarrassing for the state’s legal profession.”

Other lawmakers launched a radical response. According to KFOR-TV in Oklahoma City, State Reps. Kevin Calvey, John Bennett, Casey Murdock, Lewis Moore, Dan Fisher and George Faught called for the seven justices who ruled against the monument to be impeached.

“This ruling is the court engaging in judicial bullying of the people of Oklahoma, pure and simple,” the legislators opined in a statement.

It’s no surprise their fellow legislators devised a strong response to the verdict. State Rep. John Paul Jordan (R-Yukon), who co-authored the House version of the referendum bill, explicitly cited the Ten Commandments as the impetus for the legislation.

“Since the Oklahoma Supreme Court’s decision in June regarding the Ten Commandments monument, my constituents wanted to know what could be done,” Jordan told the Associated Press in April.

He continued, “I knew it would be a difficult proposition to undo the ruling, so we looked at giving voters the opportunity to remove the basis for the ruling.”

According to the Huffington Post, Jordan had previously claimed the clause was “written with discrimination in mind” and “needs to be removed immediately.”

Although many in the media have portrayed the vote as a battle over a Ten Commandments display, it’s much more than that. Removing the no-aid clause could dramatically alter the relationship between church and state in Oklahoma and open the door to taxpayer support for religion.

Ironically, it may not bring the Ten Commandments back to the statehouse.  Under federal court precedent, displaying the Ten Commandments alone on government property still runs afoul of the U.S. Constitution. Any effort to re-erect the monument on government land would likely spark new and costly litigation.

Rick Tepker, a professor of law at the University of Oklahoma, condemned the effort in remarks to the University of Oklahoma Daily, a student newspaper.

“Over the years, social conservatives have backed away from [separation of church and state] principles,” Tepker said. “And now, I’m afraid they believe all sorts of things that are simply untrue about our history and our law.”

A spokesman for the ACLU of Oklahoma echoed those sentiments.

“When you’re fair to everyone, there’s nothing that offends Article Two of Section Five. All this really says that as a state, you can’t discriminate. You can’t say, ‘We like this religion better than that one.’ When you do things in a fair way, there’s simply nothing to worry about there,” Brady Henderson told KFOR.

Though the fight to keep the Ten Commandments on public property is almost certainly doomed, the results of this referendum could seriously erode religious liberty protections in the state in other ways.

Oklahoma’s Supreme Court has already ruled that the no-aid provision does not bar voucher plans. But removing the language could lead the state to begin diverting even larger amounts of taxpayer aid to religious purposes or promote specific forms of religion in other ways.

That would be counter to the state’s history. The no-preference clause didn’t spring up out of no­where. It’s part of Oklahoma’s unique (and tragic) history.

Many Native Americans were forcibly relocated to the Oklahoma Territory in the 19th and early 20th centuries. Once there, Native children were often compelled to attend Christian schools in the hope that religious education would “civilize” them.

Although seen as offensive now, required Christian schooling, both Catholic and Protestant, was the norm for many years in Oklahoma for Native American youngsters. Catholic and Protestant missionaries sniped at one another to get control of public funds and Native students. Many Native groups strongly opposed this form of education, arguing that it was destroying traditional tribal culture.

In 1905, some tribes proposed what’s known as the Sequoyah Constitution. The embryonic state charter included language stating that “No person can be compelled to erect, support or attend any place or system of worship or to maintain or support any priest, minister, preacher or teacher of any sect, church, creed or denomination of religion….”

Separate language banned using taxpayer money “in aid of any church, sect or denomination of religion….”

The Sequoyah Constitution strong­ly influenced the development of the Oklahoma Constitution, and several of its provisions found their way into that document.

Religious Right groups and their allies ignore this history. The American Center for Law and Justice slammed the removal of Oklahoma’s Ten Commandments monument as “an attempt to whitewash God from our civic consciousness” and urged Oklahomans to vote in favor of removing their no-aid clause.

The First Liberty Institute, whose attorneys provided legal assistance to the state in defense of the monument, condemned the state supreme court’s verdict. The group falsely accused the Oklahoma Supreme Court of disregarding existing legal precedent.

Oklahoma’s push to eliminate its no-aid clause is simply the latest attempt to make it easier for state governments to fund religious endeavors. The state’s November referendum roughly coincides with a controversial upcoming U.S. Supreme Court case that will test the constitutional limits of no-aid clauses: Trinity Lutheran v. Pauley.

As Church & State reported in March, Trinity Lutheran Church in Columbia, Mo., applied for a state grant to pave its preschool’s playground with recycled tires. The state refused to issue the grant since the preschool promotes a religious perspective, and the Missouri state constitution forbids any public aid for religious schools. Trinity Lutheran sued, claiming that the no-aid clause violated its religious freedom. Federal trial and appellate courts rejected the church’s case, but its lawyers at Alliance Defending Freedom have successfully persuaded the nation’s highest court to hear the case.

It’s not clear how the justices will rule. They haven’t yet heard arguments in the case, and the death of Justice Antonin Scalia may significantly alter the outcome.

Meanwhile, First Amendment advocates in Oklahoma are bracing for a bruising battle. 

Bruce Prescott, an ordained Southern Baptist minister, told Church & State he’s not surprised state legislators rallied to repeal the no-aid clause. A long-time Americans United activist and resident of Norman, Prescott filed suit to remove the Ten Commandments from the state capitol. The case even bears his name: Prescott v. Pruitt. Now he’s concerned that his fellow voters will move to undo his First Amendment victory.

“I think it’s very foolish,” Prescott said of the referendum. “The no-aid clause is really just a more explicit statement of what’s in the First Amend­ment....How can this be a defense of religious freedom?”

Legislators oppose the clause, he reasoned, because their goal is to provide more public funding to religious institutions – but he thinks there may be a less pious reason for their decision to put the clause up for a vote: It will bring conservative voters to the polls.

“It is popular politically,” Prescott said. “It helps them get elected.…This will get a lot of Southern Baptists to the polls.”

That’s important in a state like Oklahoma. The state is home to the Green family, the wealthy, devoutly Southern Baptist clan behind Hobby Lobby v. Burwell, an upcoming Museum of the Bible in Washington, D.C., and an abortive attempt to implement a sectarian Bible elective in Mustang, Okla., public schools. (The Greens funded the creation of the Bible class and heavily pushed for it.)

 The Greens’ fortune means they enjoy big influence in the state. But their views are also common there: According to the Pew Research Center for Religion and Public Life, 47 percent of Oklahomans identify as evangelical Protestants; 76 percent of that cohort say their religion is “very important” to their lives, and 56 percent say they attend church services weekly.

The state is also very conservative. Pew reports that 54 percent of evangelical Protestants in the state identify as Republican. That bodes well for the push to remove the no-aid clause, which has been led primarily by Republican state legislators affiliated with the Religious Right.

Despite the Religious Right’s prom­inence in the state, Oklahomans aren’t monolithically in favor of subsidizing religious institutions. If the referendum results in the removal of the no-aid clause, First Amendment advocates like Prescott likely won’t go gently into that good night. He says he expects a legal challenge will follow if voters remove the clause and the Ten Commandments are returned.

But Prescott knows it won’t be an easy fight. “This is rocky, hard ground for supporters of separation of church and state,” he said.

In November, we’ll find out just how hard it is.