The Ten Commandments will not return to the Oklahoma Capitol

While the oldest known tablet of the Decalogue will be auctioned on November 16 in Los Angeles, American federated states are occupied by the question of the presence of the Ten Commandments in public places. Oklahoma has decided not to allow a constitutional review to display the mosaic text.

The 8 last November, Oklahoman voters reject proposal to display Ten Commandments in referendum on the grounds of the Capitol building, the seat of their state legislature. This vote legally ends a growing tension in Oklahoma regarding the presence of the Decalogue at this location, a tension that is growing in the rest of the country.

En July 2015, after a two-year legal battle, the Oklahoma Supreme Court ruled that the monument with the Ten Commandments should be removed. The stele, costing more than $ 1, had been financed out of the personal funds of the Republican representative in the state legislature, Mike Ritze, approved by his predominantly Republican colleagues. As a provocation, New York-based satanist group sought the right to erect a statue of a goat-headed deity, Baphomet, in "homage to Satan", near this monument and other groups asked to be able to build their stelae in the same place.

The American Union for Civil Liberties and Bruce Prescott, the association's director Mainstream Oklahoma Baptists, a Baptist congregation that militates for the separation of Church and State, had taken the case to court. In September 2014, a district judge ruled that the monument had a historical aim and did not only present a religious message, that it was also located on land where fifty-one other monuments bearing a declaration were located. Justice Minister Scott Pruitt said at the time :

“Today's judgment is a clear message that the Ten Commandments can be displayed on public lands like the Oklahoma Capitol because of the historic role the text played in the founding of our country. "

The unsuccessful plaintiffs finally won their case before the Federated Supreme Court, following a judgment according to which the presence of the stele violated Article 2, Section 5 of the Oklahoma Constitution which provides that public property may not be used to promote a denomination or a religious system. For the magistrates, in a five-to-two decision, it was wrong to claim that the stele had a non-religious historical purpose since the Ten Commandments are obviously religious in nature and are part of the faith of Jews and Christians. Wishing to override the judgment, last April, the representatives of Oklahoma had decided, last April and by sixty-seven against five, to submit to citizens a proposal for constitutional revision to indirectly allow the return of the Decalogue to the Capitol. At the end of the referendum, 57,1% of voters said no to this possibility.

Another debate shakes the political landscape of the state, the Freedom From Religion Foundation, a free-thought association campaigning for the separation of Church and State, writes to public schools to denounce the distribution of copies of the Bible by the organization of the Gideons. For the Minister of Justice, these are attacks on religious freedoms. Scott Pruitt said that "Few things are as sacred to Oklahomans as their constitutional rights to freedom of speech and the free exercise of religion." The head of the Department of Justice believes that the Foundation is lying by claiming that the law prohibits these distributions. The Supreme Court could be called upon to rule.

The first time that the Supreme Court of the State had had to decide on a question like that of the Decalogue on public property, it was in 1972, and it had deemed constitutional the erection of a Latin cross fifteen meters high in an exhibition park of the State, believing that the installation did not violate the fundamental standard in that it did not concern a particular Christian group (due to the lack of representation of Christ) and because the exhibition was an almost commercial montage . In 1946, the court ruled that state grants to an Indian orphanage run by Baptists in Atoka did not violate the Constitution as long as the state received valuable service in return.

A vote in an environment of conflict in the United States around the Decalogue

The question of the location of the Ten Commandments in the public domain is not confined to Oklahoma. On November 10, New Mexico Supreme Court upheld a ruling ordering the removal of a stele supporting them from the lawn of Bloomfield City Hall. The monument had been approved by the city council, a member of which had proposed the idea, but financed with private money. Christian nonprofit organization Alliance Defending Freedom, does not rule out appealing to the Supreme Court of the United States, which could rule in its favor if it decides after the appointment of a conservative judge by the future President Trump to replace magistrate Antonin Scalia who died in February of this year.

La Freedom From Religion Foundation is active in other states, such as Kentucky, where she demands that a Trigg County office worker remove a poster with the Ten Commandments from her room wall, introduced by “God said these words”. The historical or cultural aspect of the poster is difficult to see here, whereas the stelae can be understood from the angle of tradition and not only from that of proselytism. It further raises the question of the impartiality of the employee who may have to know the files of people who do not share his convictions. This is the Anglo-Saxon principle of law laid down by Lord Chief Justice Hewart in 1924 and widely repeated in countries linked to the British Crown, but also in the United States: "It is not just of any importance, but of fundamental importance that justice not only be served, but that 'it is manifestly and without leaving any doubt. This aphorism is even valid for a position of office worker, so that no one can claim that his administration favors or disadvantages according to the convictions of the citizens. Certainly the Freedom From Religion Foundation is leading a legalistic struggle which is at the antipodes of the philoclerical spirit of the American Constitution which was not intended to restrict the display of religion, but to prevent the state from intervening in religion, and his struggle resembles a desire to impose its own convictions, a militant indifference to religion which cannot logically exist, however the poster of this employee could discredit his administration.

In Georgia, the state legislature had voted in March 2012 a bill authorizing schools to display the Decalogue, the governor had affixed his signature to it. Following a complaint from the American Civil Liberties Union, academic authorities in Glynn County sent a letter to principals at the end of September last year to ask them to remove the Ten Commandments except when they are posted on the Freedom Wall.

The First Amendment, the first benchmark for settling disputes related to the Decalogue

If justice had to rule, in this last case, it could, unlike that of Oklahoma, prove the state in favor by relying on federal case law. Van Orden v. Perry. Indeed, the Supreme Court of the United States had considered by this judgment that the presence of a plaque supporting the Decalogue in the Capitol park in Austin was not unconstitutional since the purpose of the installation was educational, precisely of the fight against juvenile delinquency. The federal judge considered that the authorization of the stele did not contravene the First Amendment to the Constitution of the United States that provides : "Congress shall not make any law which affects the establishment or prohibits the free exercise of a religion, nor which restricts the freedom of speech or of the press, or the right of the people to assemble peacefully and to petition the government for redress for the wrongs it has to complain about. "

In the Oklahoma Supreme Court decision, on the other hand, the state could not rely on this federal case law restricting the interpretation of the First Amendment and the state's prohibition on interfering with religion, because even if it was still the question of the Ten Commandments in the public space, the matter at stake was here the impossibility provided by the Constitution of the State of Oklahoma to grant space to the religious fact and not the prohibition posed by the First Amendment. The solution adopted by the state supreme judge must therefore be seen in this legal environment peculiar to Oklahoma, as a fair application of the fundamental standard. On the other hand, the choice of the voters of the State to maintain in the Constitution the prohibition to grant space to religious expression, even if it is historical, represents a growing desire, in an increasingly diverse society. , to promote secularization.

As more and more cases are called upon to be brought before the Supreme Court of the United States, whose jurisprudence is binding on lower courts, the close appointment of a new judge to replace Antonin Scalia in the federal court of last resort should allow a guideline to be identified, while not preventing the courts of the federated states or the electors from choosing to ban the installation of the Decalogue on public property if the argument chosen is, as in Oklahoma, other than that of the First amendment.

Hans-Søren Dag

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