Oklahoma SQ 790: The First Amendment, not Oklahoma's special version

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Oklahoma State Question 790 is a legislative referendum which would remove a discriminatory and inconsistently applied provision in the Constitution of Oklahoma that deals with the relationship of religion and government. Its passage would allow the People of Oklahoma through our elected representatives to weigh and balance a variety of public concerns in the development and administration of our laws. Passing SQ 790 would place these questions solely in the context of the well-developed body of Federal jurisprudence concerning the free exercise and establishment clauses of the First Amendment, and would eliminate the added burden of a state provision, the meaning and interpretation of which has shifted over the 109 years since statehood, and which the State Supreme Court has inconsistently applied even within the last two years. Passing SQ 790 would eliminate a provision which discriminates against religious organizations by denying the possibility of even an indirect benefit from an action taken in pursuit of secular state aims.

SQ 790 would delete Article II, Section 5, which reads:

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 proposed amendment was placed on the ballot by Senate Joint Resolution 72, which was approved by a 39-5 vote in the State Senate and a 65-7 vote in the State House. (All five no votes in the Senate and all seven nay votes in the House were from Democrats, as were 2 of the 4 Senate abstentions and 17 of the 24 House abstentions.) The House Rules Committee passed it with a unanimous 9-0 vote. The Senate Rules Committee voted 13-2 in favor.

At the time of its passage, the Oklahoma Constitution was the longest governing document in the world, regulating the price of railroad tickets, regulating who could receive free railroad tickets (and including a special exemption for ministers of religion and YMCA traveling secretaries), decreeing the flash point of kerosene, and defining the term "colored" (although the legal impediments connected with the word were left to legislation -- the "Jim Crow" law passed as the Legislature's first act).

Over its 109-year history, Article II, Section 5, has been cited in about a dozen Oklahoma State Supreme Court cases, involving everything from discounted streetcar fares for parochial school students (OK), to letting private school students ride the public school bus (not OK), to chapel services at a state orphanage (OK), to a cross on the State Fairgrounds (OK), to, most recently, school vouchers for special-needs students (OK) and the Ten Commandments monument on the grounds of the State Capitol (not OK). The rulings have been woefully inconsistent.

The most recent two rulings illustrate the problem:

In Prescott v. Oklahoma Capitol Preservation Commission (2015 OK 54), the State Supreme Court ruled 7-2 that the Ten Commandments monument "operates for the use, benefit or support of a sect or system of religion." Stretching the definition of words to the breaking point, the majority opinion claimed that Judeo-Christianity was a system of religion and that the text of the Ten Commandments was sectarian because it followed the translation that was common to all English-speaking Protestant denominations for over three centuries. (The monument also includes the text of the Ten Commandments in ancient, pre-exilic Hebrew script.) Justice Combs, on this year's retention ballot, wrote a dissent in this case. Justice Winchester, also on the ballot went along with the majority's decision.

Oklahoma Ten Commandments Monument, highlighting the section with the Ten Commandments in ancient Hebrew script

A year later, in Oliver v. Hofmeister (26 OK 15), the Court ruled unanimously that it did not violate Article II, Section 5, for the state to provide funding that parents of special-needs children could use to pay for private school education. The majority argued that the Lindsay Nicole Henry Scholarship is constitutional, because the program is voluntary, because the parents choose the school and may select from religious or non-religious schools, and because the State benefits in that acceptance of the scholarship "relieves the school district of its obligation to the student to provide special education services mandated by the state and federal governments."

It is easy to see how the two decisions might have been reversed: The Ten Commandments are not unique to one Christian denomination or even to Christianity. They are held in respect and reverence by the three great monotheistic religions, so they can hardly be called "sectarian" as understood by the framers of our state's constitution. There is no such thing as a "Judeo-Christian system of religion." It would be more accurate to say that Judeo-Christian is a broad classification that embraces a group of different religions with some common features. The church-affiliated schools that receive state funding in the form of tuition vouchers are benefitting indirectly from state expenditure. The constitutional provision makes no allowance for offsetting state benefit.

The problem comes down to two words, one of which -- "indirectly" -- is overly broad, and the other -- "sectarian" -- has changed meanings since 1907.

Of all the private organizations in Oklahoma, only organizations which are religious in nature must be screened off from even an indirect benefit from government expenditure. Interpreted literally, the provision is absurd. Churches, religious schools, convents, and monasteries benefit indirectly from government spending on law enforcement, street resurfacing, sidewalks, and water and sewer service. A government that is banned from doing anything that might indirectly benefit a sectarian institution will be doing nothing at all.

But what does "sectarian" mean? Is anything religious necessarily sectarian, or did the framers of the Oklahoma Constitution understand a distinction between those two terms?

The same Constitutional Convention that adopted Article II, Section 5, saw no conflict with opening its proceedings with prayer or giving religious ministers a special exemption for free railroad tickets. The Constitution of the proposed State of Sequoyah, which was drafted by many of the same leaders who created the Oklahoma Constitution, had a provision similar to Article II, Section 5, but it also designated Sunday as a "perpetual day of rest" and banned atheists from holding public office.

The Oklahoma public schools that my parents and grandparents attended included prayers and Bible reading. At Catoosa Elementary School in 1970, Mrs. Paul's 2nd grade class opened each day with the Pledge of Allegiance and the Lord's Prayer.

For the first six decades or so of our state's history, the idea that the Ten Commandments were sectarian would have seemed ridiculous. What could be less sectarian than a document held in esteem by all the denominations of Judaism -- orthodox, conservative, and Reform alike -- dozens of Protestant denominations, Roman Catholicism, Greek and Russian and Syrian Orthodoxy, and even modern religions like Mormonism and Christian Science?

What was considered sectarian? Whether infants should be baptized, whether communion was a symbolic memorial or involved the transubstantiation of bread and wine into flesh and blood, whether the church should be governed by bishops, elders, or the membership of the congregation. Promotion by public schools or city governments of a civic religion of generic Protestantism was not seen as a violation of this constitutional provision by the men who put it there.

To the framers of the Oklahoma Constitution, "sectarian" was a code word for Catholic. While Article II, Section 5, is not identical to the unsuccessful Blaine Amendment to the U. S. Constitution, it is in the same vein and shares the same motivation. In the late 19th century, America experienced an influx of immigrants from Ireland and southern Europe. These immigrants were happy to become Americans, but they did not want their children to become Protestants, and they reacted to the public schools' generic Protestantism by setting up their own parochial schools. In reaction to this, politicians who wanted immigrants to assimilate passed provisions like the Blaine Amendment and Article II, Section 5, to ensure that choosing to avoid the prescribed path of religious assimilation would always carry an extra financial burden.

In one case dealing with this constitutional provision, the State Supreme Court noted that a chapel on the grounds of the State's Whitaker Orphanage near Pryor would be used for "non-sectarian, non-denominational religious worship" -- a juxtaposition that would have made perfect sense to the framers of Oklahoma's Constitution but apparently baffles seven of the nine members of our current State Supreme Court.

A few weeks ago I debated in support of SQ 790 against Jim Huff, one of the plaintiffs in the Ten Commandments monument case. Mr. Huff repeatedly made the claim that approval of SQ 790 and repeal of Article II, Section 5, would leave a hole in the law regarding the relationship of religion and government. He claims that its passage will lead to more lawsuits.

On the contrary. The "hole" would be filled by a well-defined body of jurisprudence regarding the First Amendment's "establishment" and "free exercise" clauses. If SQ 790 passes, state, local, and school officials in Oklahoma will have the guidance of dozens of First Amendment cases across the entire country. The two lawsuits mentioned above could have been avoided if Article II, Section 5, were repealed, because precedents in other states already established the constitutionality of the legislature's actions.

If SQ 790 fails, Oklahoma officials will only be able to guess, based on a dozen inconsistent rulings, whether their actions will be regarded as constitutional when the inevitable lawsuit is brought to the State Supreme Court.

Because of the clarity that repeal of Article II, Section 5, will bring to the interaction of government and religion in Oklahoma, I am voting YES, to APPROVE SQ 790.

MORE comments -- a couple of further thoughts I've posted elsewhere that may help summarize the case:

Regarding their Ten Commandments monument, Texas officials could make decisions based on dozens of 1st Amendment establishment and free-exercise precedents from cases across the US. Oklahoma officials are burdened with an overly broad ("indirectly") provision with few precedents (about a dozen) and shifting definitions ("sectarian"). But the existence of Article II, Section 5 is no excuse for our State Supreme Court. The seven justices who ruled against the monument should be blamed for wrongly claiming that there is a "Judeo-Christian system of religion" (Judeo-Christian is a label for a broad grouping of religions with some common elements; if it's a system, where's its hierarchy, where are its rituals set down?) and that the monument is "sectarian" (its text is revered by all denominations or sects of Judaism and Christianity, and is even regarded as holy scripture by Islam).

When Article II, Section 5, was placed in the Oklahoma Constitution, and similar "Blaine Amendment"-type provisions were added to other state constitutions, the framers wanted to encourage children to be indoctrinated in the state religion of the day (generic protestantism) and make it harder for families who wanted to educate their children in their own religion. The motivation for those who want to keep it today hasn't changed, but the state religion has been changed (by the U. S. Supreme Court in the 1960s) to atheism and materialism.

MORE: After the jump, a summary of the Oklahoma State Supreme court cases citing Article II, Section 5.

CONNELL v. GRAY, 1912 OK 607

Oklahoma A&M not allowed to require an annual student fee for the maintenance of student organizations, including YMCA and YWCA, as a condition for admission. "As to the Young Men's and the Young Women's Christian Associations, it is not permissible for said board to make it compulsory upon any student in said institution to contribute to the maintenance of the same."

OKLAHOMA RY. CO. v. ST. JOSEPH'S PAROCHIAL SCH., 1912 OK 697

OK for the Corporation Commission to require a franchised street car company to offer the same fare discount given to public school students to parochial students as well.

GURNEY v. FERGUSON, 1941 OK 397

Article II, Section 5, was used to invalidate the following Oklahoma law:

"That whenever any school board shall, pursuant to this section or to any law of the state of Oklahoma, provide for transportation for pupils attending public schools, all children attending any private or parochial school under the compulsory school attendance laws of this state shall, where said private or parochial school is along or near the route designated by said board, be entitled equally to the same rights, benefits and privileges as to transportation that are so provided for by such district school board."

MURROW INDIAN ORPHANS HOME v. CHILDERS, 1946 OK 187

State can contract with and pay a sectarian institution to further a non-sectarian state purpose.

¶7 State-owned and supported institutions of the types mentioned herein are not without direct religious influences while avoiding the improprieties of sectarianism. Secular eleemosynary institutions observe this policy. Private homes are basically religious. None of these schemes could be rejected upon a plea such as this. It is not the exposure to religious influence that is to be avoided; it is the adoption of sectarian principles or the monetary support of one or several or all sects that the state must not do. Could these officials refuse to pay claims incurred by the keeping of needy children in private homes under contract where the state deliberately adopted the policy of placing children in homes observing the same religious principles as were practiced by the families from which the children came? We think not.

¶8 The circumstances under which public money could be given, applied, or appropriated to religious institutions without any return to the state, or could be so used as to make apparent the paramount purpose to support such institutions under the guise of receiving value in return, are known and can be recognized and can be stopped.

¶9 When the stipulated facts before us are considered in the light of these principles, we are of the opinion that the objections voiced to the payment of these claims fail. The state is fulfilling a duty to needy children. The institution can render a service that goes far toward the fulfillment of this duty, and for a compensation that is a matter of contract and public record. The matter of the wisdom of the terms of these contracts is for the Legislature and the agency upon which it thrusts the performance of its commands, and so long as they involve the element of substantial return to the state and do not amount to a gift, donation, or appropriation to the institution having no relevancy to the affairs of the state, there is no constitutional provision offended.

¶10 We think that the denominational background and sectarian character of this institution is no barrier to the contract under consideration. The claims, not being otherwise questioned, are valid and should be paid.

STATE v. WILLIAMSON, 1959 OK 207

Court ruled it was OK for a trust fund to construct a chapel on the grounds of the state orphanage near Pryor, to be maintained by the state. "3. The construction of a Memorial Chapel Building on the grounds of a State owned orphans home by co-trustees of a 'Public Improvements Trust Estate' acting under authority of a duly probated will, and under provision of statute 60 O.S.1955, Supp. Secs. 391-397, such chapel to be used for assembly purposes, including non-sectarian, non-denominational religious worship, does not involve any violation of Art. II, Sec. 5 of the Constitution of Oklahoma, nor of The First Amendment to the Constitution of the United States."

BOARD OF EDUC., IND. SCH. DIST. No. 52 v. ANTONE, 1963 OK 165

Court reaffirmed Gurney ruling, despite SCOTUS ruling in Everson v. Board of Education that reimbursement for transportation of parochial school children did not violate the Establishment clause. The general public benefit of providing transportation for school children did not negate the indirect benefit received by a parochial school by having its children transported by taxpayer-funded buses.

MEYER v. OKLAHOMA CITY, 1972 OK 45

The Court ruled that a 50 foot tall cross, installed by the Oklahoma City Council of Churches at the entrance to the Oklahoma State Fairgrounds, did not violate Article 2, Section 5:

Our prior decisions make it clear that whenever public money or property became operative in an effective way to be appropriated, applied, donated or used for the use, benefit or support of any sect, church, denomination, system of religion or sectarian institution as such, the proscribed practices have been enjoined. But here the maintenance of this cross, as delineated and pictured in plaintiff's petition, cannot conceivably be said to operate for the use, benefit or support of any of the institutions or systems named in Art. 2, § 5 . The cross is in a distinctly secular environment in the midst of persons in pursuit of distinctly secular entertainment. Notwithstanding the alleged sectarian conceptions of the individuals who sponsored the installation of this cross, it cannot be said to display, articulate or portray, except in a most evanescent form, any ideas that are alleged to pertain to any of the sectarian institutions or systems named in Art. 2, § 5 . The alleged commercial setting in which the cross now stands and the commercial atmosphere that obscures whatever suggestions may emanate from its silent form, stultify its symbolism and vitiate any use, benefit or support for any sect, church, denomination, system of religion or sectarian institution as such. On the basis of the foregoing we hold that plaintiff's petition did not state grounds for injunctive relief.


PRESCOTT v. OKLAHOMA CAPITOL PRESERVATION COMMISSION, 2015 OK 54

Ruled that the 10 Commandments monument "operates for the use, benefit or support of a sect or system of religion," specifically the "Judeo-Christian system of religion," even though an identical monument on the Texas capitol grounds does not violate the establishment clause.

OLIVER v. HOFMEISTER, 2016 OK 15

The Court ruled that the Lindsay Nicole Henry Scholarship did not violate the State Constitution. From the opinion:

¶19 In contrast, public money paid to a sectarian institution in exchange for the housing and care of orphans and thereby discharging the State's duty to provide for the needy, is not a violation of Article II, Section 5. Murrow Indian Orphans Home v. Childers, 1946 OK 187, ¶9, 171 P.2d 600, 197 Okla. 249, 250. 8 We clarified that as long as the services being provided "involve the element of substantial return to the state and do not amount to a gift, donation, or appropriation to the institution having no relevancy to the affairs of the state, there is no constitutional provision offended." Murrow, Id. The Court noted that the downfall of Gurney was the use of public taxes to provide bus service to a sectarian institution for which no corresponding value was received by the state. Id.

¶20 The purpose of the "no aid" clause is to support the separation of church and state and to ensure that churches are free from state control and have the ability to function and operate separately from the state. Gurney, supra., 1941 OK 397 at ¶16. The concern is not the exposure to religious influence. Rather "it is the adoption of sectarian principles or the monetary support of one or several or all sects that the state must not do." Murrow,1946 OK 187 supra. at ¶9.

"¶21 The Act provides a scholarship to a limited group of eligible students with disabilities. Participation in the scholarship program is strictly voluntary by the families and eligible students. The families who opt to take advantage of the scholarship independently choose which private school is best for the eligible student. Approved schools are determined without regard to religious affiliation and are based on statewide educational standards, health and safety regulations. The scholarship is paid to the parent who then endorses payment to the private school. The scholarship program does not directly fund religious activities because no funds are dispersed to any private sectarian school until there is a private independent selection by the parents or legal guardian of an eligible student. 70 O.S. 2012 Supp., §13-101.2 (B). Any benefit to a participating sectarian school arises solely from the private and independent choice of the parent or legal guardian of the child and not from any decree from the State."

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In a November 1, 2016, speech to pastors in Tulsa, U. S. Senator James Lankford likened Article II, Section 5, of the Oklahoma Constitution to a latent computer virus. Lankford warned that unless Oklahomans repeal that section by passing SQ 790, anti-r... Read More

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This page contains a single entry by Michael Bates published on October 30, 2016 11:19 PM.

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