The 10 Commandments Case: The Thomas Jefferson side won
The Oklahoma Supreme Court's written opinion regarding the 10 Commandments display at the state Capitol offered little background into the history of the challenge or the history of the Constitutional provision at issue. It's hard to understand the justices' reticence, particularly in a case sure to arouse much public passion.
But the justices were downright chatty compared to Oklahoma County Judge Thomas E. Prince, who ruled in September that the Commandments monument could stay on public land near the Capitol. There is no written record of Prince's reasoning.
Nor did the two Supreme Court justices who dissented in the case file a separate opinion. That also would have given the public some insight into the legal issues.
As most probably know, the state Supreme Court ruled Tuesday that the Article II, Section 5 of the Oklahoma Constitution prohibits the 10 Commandments display on Capitol grounds. Here is that section:
Section II-5: Public money or property - Use for sectarian purposes.
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 justices applied a plain text meaning to the case and said the use of the words "no," "ever" and "any" showed how broad and expansive the section was meant to be.
And though the county judge and justices declined to be expansive in their public utterances, there is a record of the legal arguments made by the Oklahoma residents who challenged the monument and the Oklahoma Attorney General's office.
Electronic briefs in the county case are available here.
The main argument of Oklahoma Attorney General Scott Pruitt's office was that the constitutional provision at the center of the case was never meant to apply to passive religious displays. Rather, the AG's office said, the section was meant to prohibit state funding of religious schools.
The language was adopted from an amendment that Congress had debated and many states had added to their own constitutions amid controversy over the funding of Catholic schools, Pruitt argued.
The history of the so-called Blaine Amendments was detailed in a brief in the 10 Commandments case filed by Paul D. Clement, who was President George W. Bush's solicitor general, on behalf of a professor.
Pruitt's office argued that the historical connection between Article II, Section 5 to the Blaine Amendments proved that the section was not meant to apply to passive monuments.
Attorneys for the Oklahoma office of the American Civil Liberties Union, which represented the citizens in the case, countered that the provision was not based on Blaine Amendments seeking to bar public funding of religious schools.
They said the provision was based on Virginia's religious freedom law written by Thomas Jefferson in 1779.
In fact, the ACLU argued, five justices on the Oklahoma Supreme Court in 1912 _ only five years after statehood _ traced the provision to Jefferson's language.
The attorney general, the ACLU charged, was trying to rewrite state history, "striking through our state's strong tradition of separation of church and state and replacing it with something less."
On Tuesday, the Supreme Court sided with the challengers against the Attorney General by a vote of 7 to 2.
Pruitt has asked the court for another hearing, one that would theoretically lead to more insight into the justices' reasoning. But rehearings are a long shot at best, particularly with lopsided votes like this one.