Date: 09-19-2014

Case Style: Dr. Bruce Prescott, et al. v. Oklahoma Capitol Preservation Commission

Case Number: CV-2013-1768

Judge: Thomas E. Prince

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Brady R. Henderson

Defendant's Attorney: Cara N. Rodriguez and Robert R. Wyrick, Office of the Attorney General of Oklahoma for the Oklahoma Capitol Preservation Commission

Mark Spencer, Paul Clement and George Hicks

Description: Oklahoma City, OK - Motion for summary judgment against ACLU lawsuit challenging the constitutionally of placing Ten Commandments monument on public property next to Oklahoma state capitol building sustained by Oklahoma County, Oklahoma District Judge Thomas Prince.

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Copies of the pleadings and motions filed by the parties are set forth below:

Plaintiffs' Petition

COME NOW, Bruce Prescott, James Huff, Donald Chabot, and Cheryl Franklin, Plaintiffs herein, by and through their attorneys of record, Brady R. Henderson and Ryan Kjesel of the American Civil Liberties Union of Oklahoma Foundation, and hereby petition this Honorable Court to temporarily and permanently enjoin the Oklahoma Capitol Preservation Commission from continuing to permit the placement and maintenance of the display of the Ten Commandments placed upon public property on the grounds of the Oklahoma State Capitol. In support of said Petition, Plaintiffs allege and state:

I. PARTIES, JURISDICTION, and VENUE

1. Plaintiff Bruce Prescott is an ordained Baptist minister and constituent citizen and taxpayer of the State of Oklahoma. Reverend Prescott resides within the bounds of the city of Norman, within Cleveland County and the State of Oklahoma.

2. Plaintiff James Huff is a constituent citizen and taxpayer of Oklahoma. A former educator and current public servant, he now resides within Oklahoma County, Oklahoma.

3. Plaintiff Donald Chabot, a retired landscaper and businessman, is a constituent citizen of Oklahoma and taxpayer who resides in Oklahoma City, within the confines of Oklahoma County and the State of Oklahoma.

4. Plaintiff Cheryl Franklin is a constituent citizen of Oklahoma and taxpayer. A former educator, she is now retired, with her principal place of residence within Garfield County, Oklahoma, in the city of Enid.

5. Defendant Capitol Preservation Commission (hereinafter “the Commission”) is a public body created and operated under the laws of the State of Oklahoma. It is charged with permitting and overseeing the display, creation, alteration, and usage of art and architecture for both the interior and exterior spaces of the Oklahoma State Capitol.

6. Jurisdiction and venue are proper in this court due to the location of the Defendant’s office within the bounds of Oklahoma County, as well as the monument and other public property placed at issue herein being located entirely withm the bounds of Oklahoma County In addition, two of the four Plaintiffs herein maintain their principal residences in Oklahoma County.

II. STATEMENT OF FACTS

7. The Oklahoma State Capitol (hereinafter “Capitol”), located in Oklahoma City, Oklahoma, has been established as the seat of government for the State of Oklahoma under 730.S. §1.

8. The Capitol is used daily for transaction of all manner of public business, by all three branches of state government, and by both public officials and private citizens alike. It is a distinctive and dignified structure, designed and maintained in such a manner as to have cultural and political significance to the populace that goes far beyond its utilitarian functions.

9. While most aspects of the operation and maintenance of the Capitol building and grounds are under the control of the Oklahoma Office of Management and Enterprise Services, as provided by 73 O.S. §15, Defendant Oklahoma Capitol Preservation Commission is charged specifically with duties concerning the planning and display of “art objects” within both the interior and exterior spaces of the Capitol. 740.S. §4102.

10. On or about November 1, 2009, the Capitol Preservation Commission was authorized by the Oklahoma Legislature, “to permit and arrange for the placement on the State Capitol grounds of a suitable monument displaying the Ten Commandments.” 74O.S. §4110(B).

11. The Capitol Preservation Commission was further authorized, “to assist private entities in selecting a location for the monument and arranging a suitable time for its placement.” 74 O.S. §4110(B). The Legislature did not appropriate public funds to create the monument, instead relying on the monument being donated to the State following its creation at private expense.

12. The Defendant subsequently arranged for the placement of such a monument, donated by Dr. Mike Ritze and his family. Dr. Ritze is a member of the Oklahoma House of Representatives from Broken Arrow, Oklahoma.

13. The Defendant subsequently decided on the placement of the Ten Commandments Monument (hereinafter “the Monument”) on its current site on the north side of the Capitol building.

14. This siting and design process required expenditure of public funds including, but not necessarily limited to, the publicly funded work of the Capitol Architect and Curator, who holds a contracted position with the State of Oklahoma performing public duties for which he is compensated with public funds through the Office of Management and Enterprise Services, pursuant to 74OS §4105 15. Following the siting process, on or about November 15, 2012, the Monument was erected on the Capitol grounds per the direction and permission of the Defendant and continues to reside there.

15. (SIC)

16. The current display of the Monument differs from its appearance upon placement in two ways: First, ornamental or upgraded tile has been installed on top of the concrete slab at its base. Second, three spelling errors have been corrected in the engraving of the Monument’s text.

17. The Monument itself physically consists of a large vertical slab of cut and polished granite, with an aesthetic appearance common to that of tombstones or commemorative memorials or displays. The slab is essentially rectangular but for its top, which consists of two adjacent arched or semi-circular shapes.

18. The Monument stands approximately six feet and four inches tall, three feet and eight inches wide, and four inches thick. The Monument is placed approximately ten feet from the northeast corner of the Capitol’s north transept, with the broad sides facing to the North and South, respectively.

19. The north face of the Monument is blank, while the south face, exposed directly to the Capitol building and viewable through numerous windows on the north side of the Capitol’s East Wing, contains the entirety of the Monument’s text and iconography.

20. The Monument stands alone, with no other monuments or memorials in the immediate vicinity.

21. The Monument’s location places it on the raised foundation platform, or dais, on which the Capitol building is built. This dais runs all around the Capitol building, broken only by a few service entrances and ADA-compliant public entrances into the Capitol’s first floor or basement, which bypass the several grand staircases that are the only other means of public access to the platform or Capitol building upon it from ground level.

22. The dais, by its raised stature and grand entrances, gives a dignified and solemn appearance to whatever is placed upon it. The Ten Commandments Monument is the only monument, memorial, or artistic display of any kind visible anywhere on this dais, which otherwise is occupied only by the Capitol building itself, its concomitant ornamentation, and sidewalks following the Capitol building’s perimeter.

23. The Monument itself is designed around a clear and conspicuous religious message, making emphatic and explicit references to God in divine terms.

24. The Monument includes the following principal text (as corrected), presented
here in like capitalization, alignment, and indentation to that on the Monument:
the Ten Commandments

I AM the LORD thy God.

Thou shalt have no other gods before me. Thou shalt not make to thyself any graven images.

Thou shalt not take the Name of the Lord they God in vain. Remember the Sabbath day, to keep it holy.

Honor thy father and thy mother that thy days may be long upon the land which the Lord thy God giveth thee.
Thou shalt not kill.

Thou shalt not commit adultery. Thou shalt not steal.

Thou shalt not bear false witness against thy neighbor.

Thou shalt not covet thy neighbor’s house.

Thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor’s.

25. This textual choice is identical to that on the Ten Commandments Monument placed upon the grounds of the Texas State Capitol by the Fraternal Order of Eagles in 1961, one of many placed with the support of Hollywood film director Cecil B. DeMille as he promoted his famous 1956 film The Ten Commandments, starring Charlton Heston and Yul Brynner.

26. The actual text of the Ten Commandments, also known as the Decalogue, has been translated in numerous different ways since its origination in ancient Hebrew. As such, there is no universally agreed-upon definitive version.

27. This particular text represents an English translation of the Ten Commandments inconsistent with those officially adopted by the Catholic Church and within Orthodox Judaism, generally conforming more closely to particular Protestant interpretations of the text.

28. The principal text is entirely in the same font and size, but for the first two lines. The title, “the Ten Commandments,” is in the largest font. Centered below it, set apart from the other commandment text, is the phrase, “I AM the LORD thy God.” In addition to being centered, it is engraved in a substantially larger font than the remainder
of the text.

29. The text’s display of “I AM” and “LORD” in all capital letters is consistent with common practice in most, if not all versions of the Christian Bible and the writings of Christian theologians and clergy. It carries with it an emphasis on the Biblical tenets that God’s existence transcends the temporal and secular world and that God is the final and ultimate authority over all things.

30. Above the principal text, the Monument features engraved images of two tablets with faux ancient text, appearing to symbolize one or both of the two sets of two stone tablets on which, according to Biblical tradition, Moses twice delivered the original Ten Commandments to the people of Israel after they were written by God atop Mount Sinai, the first set being smashed in anger over the peoples’ corruption in worshiping an idol in Moses’s absence, and the second set being placed in the Ark of the Covenant.

31. Between the images of the two tablets, the Monument displays a further engraved image of a symbol most commonly known as an “Eye of Providence” or “All-seeing Eye of God.” This symbol consists of an image of an open human eye in the center of an equilateral triangle. Surrounding the triangle are radial lines emanating in all directions, symbolizing the endless and ubiquitous power, sight, and/or glory of God.

32. The depiction found on the Monument is facially similar to, but distinct from, the version of the Eye of Providence found on the obverse of the United States One Dollar bill. This latter version is used more commonly within Freemason tradition, differing from that used in the Monument by placing the eye atop an unfinished pyramid, rather than in the center of an equilateral triangle or trinity. The centered version used in the Monument is more consistent with emphatically Christian religious iconography, found within the stonework and stained glass of numerous cathedrals and churches in Europe and the United States.

33. Immediately below the All-seeing Eye of God, the Monument depicts its lone non-religious iconography, an image of a bald eagle straddling and clutching a partially unfurled American flag. It is unknown to the Plaintiffs whether the upside-down orientation of the flag is simply incident to the apparent unfurling action of the eagle or independently symbolic of distress, as is normally the case when a national flag is displayed upside down.

34. Below the principal text, the Monument features two six-pointed stars, in the shape of geometric hexagrams made by joining opposed equilateral triangles, known commonly as Stars of David when utilized as symbols of Judaism. This symbol is found on the contemporary flag of the state of Israel, and is found in ancient and modern history referencing both Jewish and Christian iconography.

35. Centered between these Stars of David, the Monument displays an engraved symbol known as a “chi-rho,” a form of Christogram in which the first two letters of the Greek word for “Christ” (Chi and rho) are superimposed in such a
manner as to aesthetically reference the cross on which, according to Christian Biblical tradition, Jesus was crucified before being resurrected from the dead.

36. The chi-rho is a symbol widely used in Christian iconography for approximately
1,700 years. The version displayed on the monument is the simplest form of the chi-rho More complex versions commonly feature the Greek letters alpha and omega to each side and/or a surrounding wreath symbolizmg Christ’s resurrection and eternal life.

37. At the very bottom, below the chi-rho, the Monument displays its lone nonreligious text, where it reads: “Presented to the people of Oklahoma by Dr. Mike and Connie Ritze and Children Amity, Heidi and Jamey.”

38. In the intervening months since the Monument was placed on the Capitol grounds, Plaintiffs know of no other monuments, memorials, or displays placed or planned for the vicinity of the Monument.

III. CAUSE OF ACTION

39. The Oklahoma Constitution mandates:

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, mmister, or other religious teacher or dignitary, or sectarian institution as such.
Okia. Const., art. 2, §5.

40. The Monument is the chattel property of the State of Oklahoma, having been donated to the people of the State of Oklahoma and placed upon public land on the grounds of the Oklahoma State Capitol, the State’s primary seat of government. Despite the private source of funding for its creation and acquisition, it is no longer private property, but incontrovertibly public property 41. This piece of public property, placed upon public property, conveys an explicit religious message that supports and endorses the faiths and creeds of some churches and sects.

42. The message conveyed is self-evidently exclusive, explicitly urging those viewing the Monument to worship or believe in no other forms of divinity but the one endorsed. By definition, this works to the derogation of faiths inconsistent with the exclusive vision of God portrayed by the text and accompanying religious iconography.

43. The Monument’s positioning, in a setting in which no other monuments or memorials are similarly situated or intermixed, further lends to the Monument’s effect of conveying state endorsement and support of its explicitly religious message.

44. This prohibition on use of public property for sectarian or religious benefit is violated by the placement and continued display of the Ten Commandments Monument.

45. The Plaintiffs herein, as citizens of the State of Oklahoma, and taxpayers with a constituent interest in the appropriate disposition of public property, have suffered and continue to suffer injury as a result of the illegal use of the Monument and the property on which it is placed to support and endorse specific and exclusive faith traditions.

46. This endorsement, and its converse coercive effect on those with faith traditions inconsistent with those supported
by the Monument, force Plaintiffs to endure a continuing violation of the peoples’ liberty of conscience, committed in their names as citizens of Oklahoma.

47. Plaintiffs Prescott and Huff object to the use and display of the Monument due to its co-option of their religious traditions, resulting in a cheapening and degradation of their shared faith. Both Prescott and Huff conduct ongoing
business at the State Capitol with some frequency so as to face direct confrontation and challenge from the Monument’s message

48. Plaintiffs Chabot and Franklin object to the use and display of the Monument based on similar sincerely held religious beliefs, finding the Monument’s statement of official state religion inconsistent with the dictates of their own faiths Neither Chabot nor Franklin has frequent business at the Capitol Building

49. As constituent citizens and taxpayers of the State of Oklahoma, all Plaintiffs herein retain an interest in the Monument itself, the land on which it is placed, and any and all public funds expended in its placement or maintenance

50. The aforementioned injuries are continuing and repeated each day the Monument is used in violation of the Oklahoma Constitution

51. An actual controversy exists as to the right of the Defendant to permit the placement, use, and display of the Monument, and as to the legal status of the Monument These controversies are justiciable pursuant to Oklahoma’s statutes on declaratory judgments, as provided in 120 S §1651-1657

52. The aforementioned injuries are capable of judicial remedy and redress through an injunction barring the continued use and display of the Monument, as authorized in 12 0.S. §1381-1397.

WHEREFORE, Plaintiffs request this Court declare the placement of the Ten Commandments Monument to be in violation of the Oklahoma Constitution, and as such, an illegal appropriation of public property in support of religion. Plaintiffs further request that following said declaration, this Court issue a permanent injunction barring further use or display of the Ten Commandments Monument. Plaintiffs also request costs and attorney fees, if warranted by law, and for further relief as this Honorable Court deems just and proper The Plaintiffs reserve the right to further plead as necessary

ANSWER

or deny the allegations set forth or deny the allegations set forth or deny the allegations set forth
Defendant Oklahoma Capitol Preservation Commission, for answer to Plaintiffs’ Dr. Bruce Prescott, James Huff, Donald Chabot, and Cheryl Franklin, hereby denies each and every allegation set forth in Plaintiffs’ Petition unless otherwise admitted. Defendant objects to Plaintiffs’ failure to limit their averments contained in each numbered paragraph to a statement of a single set of circumstances. OKLA. STAT. tit. 12, § 2010(B) (201 1). For further response or answer, Defendant states the following:

1. Defendant is without sufficient knowledge to admit or deny the allegations set forth in 11 1 and, therefore, denies same.

2. Defendant is without sufficient knowledge to admit in II 2 and, therefore, denies same.

3. Defendant is without sufficient knowledge to admit in ¶ 3 and, therefore, denies same.

4. Defendant is without sufficient knowledge to admit in ¶ 4 and, therefore, denies same.

5. The allegations set forth in ¶1 5 are admitted.

6. With respect to the allegations set forth in ¶ 6, Defendant admits thatjurisdiction and venue are proper in this court, but Defendant is without sufficient knowledge to admit or deny the allegations as to certain of the Plaintiffs’ principal residences and, therefore, denies these allegations.

7. The allegations set forth in ¶j 7-10 are admitted.

8. With respect to the allegations set forth in ¶ 11,74 U.S. § 4110(B) speaks for itself Defendant admits that public funds were not appropriated for creation of the Monument, but that the Monument was donated to the State by private entities.

9. The allegations set forth in ¶ 12 are admitted.

10. With respect to the allegations set forth in ¶ 13, Defendant admits that the Ten Commandments Monument (“Monument”) was erected on the north side of the Uklahoma State Capitol building in a location Defendant had previously identified for the beginning phase of a monument park that Defendant hoped to form over a period of years and with the addition of many monuments.

11. Defendant is without sufficient knowledge to admit or deny the allegations set forth in ¶1 14 and, therefore, denies same.

12. The allegations set forth in ¶ 15 are denied as stated.

13. Defendant is without sufficient knowledge to admit or deny the allegations set forth in ¶ 16 and, therefore, denies same.

14. The allegations set forth in ¶ 17 are denied as stated.

15. Defendant is without sufficient knowledge to admit or deny the allegations set forth in ¶1 18 and, therefore, denies same.

16. Defendant is without sufficient knowledge to admit or deny the allegations set forth in ¶1 19 and, therefore, denies same.

17. The allegations set forth in ¶ 20 are specifically denied.

18. The allegations set forth in 11 21 are admitted.

19. The allegations set forth in ¶ 22 are specifically denied.

20. The allegations set forth in ¶ 23 are specifically denied.

21. The allegations set forth in ¶ 24 are admitted.

22. With respect to the allegations set forth in ¶ 25, Defendant admits that the Monument’s design was based entirely
on the Ten Commandments Monument displayed on the grounds of the Texas State Capitol (“Texas Monument”). Defendant is
without sufficient knowledge to admit or deny the remainder of the allegations set forth in ¶ 25 and, therefore, denies same.

23. Defendant is without sufficient knowledge to admit or deny the allegations set forth in ¶ 26 and, therefore, denies same.

24. Defendant is without sufficient knowledge to admit or deny the allegations set forth in ¶ 27 and, therefore, denies same.

25. The allegations set forth in ¶ 28 are admitted.

26. Defendant is without sufficient knowledge to admit or deny the allegations set forth in ¶ 29 and, therefore, denies same.

27. With respect to the allegations set forth in ¶130, Defendant admits that, in addition to text, certain visual images identical to those of the Texas Monument are engraved on the Monument, but Defendant is without sufficient knowledge to admit or deny the further allegations set forth in ¶ 30 and, therefore, denies same.

28. With respect to the allegations set forth in ¶ 31, Defendant admits that, in addition to text, certain visual images identical to those of the Texas Monument are engraved on the Monument, but Defendant is without sufficient knowledge to admit or deny the further allegations set forth in ¶ 31 and, therefore, denies same.

29. Defendant is without sufficient knowledge to admit or deny the allegations set forth in ¶ 32 and, therefore, denies same.

30. With respect to the allegations set forth in ¶ 33, Defendant admits that, in addition to text, certain visual images identical to those of the Texas Monument are engraved on the Monument. Defendant specifically denies that an image of a bald eagle straddling and clutching an American flag is the only non-religious image on the Monument. Defendant is without sufficient knowledge to admit or deny the further allegations set forth in ¶ 33 and, therefore, denies same.

31. With respect to the allegations set forth in ¶ 34, Defendant admits that, in addition to text, certain visual images identical to those of the Texas Monument are engraved on the Monument, but Defendant is without sufficient knowledge to admit or deny the fhrther allegations set forth in ¶1 34 and, therefore, denies same.

32. With respect to the allegations set forth in ¶ 35, Defendant admits that, in addition to text, certain visual images identical to those of the Texas Monument are engraved on the
Monument, but Defendant is without sufficient knowledge to admit or deny the further allegations set forth in IT 35 and, therefore, denies same.

33. Defendant is without sufficient knowledge to admit or deny the allegations set forth in IT 36 and, therefore, denies same.

34. With respect to the allegations set forth in IT 37, Defendant admits that additional text is visible at the very bottom of the Monument, but specifically denies that this text is the lone nonreligious text on the Monument.

35. The allegations set forth in IT 38 are specifically denied.

36. With respect to the allegations set forth in IT 39, OICA. CONST. art. 2, § 5 speaks for itself

37. The allegations set forth in IT 40 are admitted.

38. The allegations set forth in IT 41 are specifically denied.

39. The allegations set forth in IT 42 are specifically denied.

40. The allegations set forth in IT 43 are specifically denied.

41. The allegations set forth in IT 44 are specifically denied.

42. The allegations set forth in IT 45 are specifically denied.

43. The allegations set forth in IT 46 are specifically denied.

44. Defendant is without sufficient knowledge to admit or deny the allegations set forth
in ¶ 47 and, therefore, denies same.

45. Defendant is without sufficient knowledge to admit or deny the allegations set forth in IT 48 and, therefore, denies same.

46. Defendant is without sufficient knowledge to admit or deny the allegations set forth in ¶ 49 and, therefore, denies same.

47. The allegations set forth in ¶1 50 are specifically denied.

48. The allegations set forth in ¶ 51 are specifically denied.

49. The allegations set forth in ¶ 52 are specifically denied.

AFFIRMATIVE DEFENSES

For fUrther answer or defense, Defendant alleges and states that Plaintiffs lack standing to raise the claims alleged and that they fail to state a claim upon which relief maybe granted.

DEFENDANT OKLAHOMA CAPITOL PRESERVATION COMMISSION’S MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 13 of the Rules for District Courts, Defendant Oklahoma Capitol Preservation Commission (“the Commission”), by and through their undersigned counsel, moves this Court to grant Defendant’s Motion for Summary Judgment as there exists no substantial controversy as to any material fact, and the Commission is, therefore, entitled to judgment as a matter of law.


Introduction
The United States Supreme Court (“Supreme Court”) has already held that a Ten Commandments monument identical to Oklahoma’s is not an impermissible endorsement of religion. Van Orden v. Perry, 545 U.S. 677 (2005). And every other court that has analyzed a Ten Commandments monument based on the Fraternal Order of Eagles design (as the monument in Van Orden and this one are) has reached the same conclusion. See, e.g., Card v. City of Everett, 520 F.3d 1009, 1021 (9th Cir. 2008); ACLUv. City of Plattsmouth, 419 F.3d 772, 778 (8th Cir. 2005) (en banc); Anderson v. Salt Lake City, 475 F.2d 29, 34 (10th Cir. 1973); State v. Freedom From Religious Found., 898 P.2d 1013, 1017 (Cob. 1995). So as a starting point, Plaintiffs’ claims are absolutely foreclosed unless Plaintiffs can somehow distinguish this case from Van On/en. They make two attempts to do so, and both fail.

First, Plaintiffs try to distinguish this case on the facts. But Plaintiffs have now leaned through discovery that the factual allegations they made in their Petition are not supported by the evidence. For example:

• Plaintiffs alleged that the Ten Commandments Monument (or “the
Monument”) is the only monument on the Capitol Grounds. This is false.
There are at least 100 monuments, plaques, and memorials on the State
Capitol Grounds, many of which depict religious themes or symbols.

• Plaintiffs alleged that the Ten Commandments Monument was afforded a special site on the “raised dais” surrounding the Capitol. This too is false. There is no such “raised dais.” The Capitol Building was built on a piece of land that slopes downward from south to north. As a result, what Plaintiffs call a “raised dais” is actually just a sidewalk that circles the Capitol at the ground level, following the Capitol’s natural topography. And the site for the Monument was designated for future monuments many years before the idea for this particular monument was even conceived.

• Plaintiffs alleged that the Ten Commandments Monument was built with taxpayer dollars. This too is completely false. The construction and placement of the Monument was entirely privately funded.

Second, Plaintiffs try to distinguish this case legally by bringing a claim under Article
2, Section 5 of Oklahoma’s Constitution. Plaintiffs seemingly argue that Oklahoma’s version of the Establishment Clause goes much, much further than the federal version. But a long line of Oklahoma Supreme Court (“State Supreme Court”) decisions applying Article 2, Section 5 shows otherwise. The State Supreme Court has upheld a fifty-foot tall lighted cross placed on state property at the intersection of two of the busiest interstate highways in the Nation. It has upheld the State’s funding of a Baptist-operated children’s home, as well as the construction of a chapel at a State-funded children’s home. In other words, to the extent that Plaintiffs argue that Article 2, Section 5 creates some sort of categorical bar against any sort of monument depicting religious symbology on state property, the State Supreme
Court long ago flatly rejected that premise.

In any event, this Court shouldn’t be the first Oklahoma court to hold that such a categorical bar exists, because doing so would upset decades of history and tradition by requiring the removal of dozens upon dozens of historical artifacts and memorials merely because they have a symbolic connection to one religion or another.’ Nothing in the Oklahoma Constitution compels this sort ofjudicial remodeling of the State Capitol Grounds.

Background

From siting and design to final installation, the Ten Commandments Monument on the State Capitol Grounds was entirely privately funded. It was placed on the rarely- trafficked north side of the Capitol Building in a location where the Commission hopes to attract additional monuments and memorials. And perhaps most importantly, the Act authorizing the Commission to consider its placement emphatically stressed that consideration of any such display had to comport with the law and had to reflect the historical impact that the len Commandments had on this State and the Nation at their founding. This passive Monument does not offend our Constitution and is a far easier case than the fifty-foot lighted cross upheld as constitutional by the State Supreme Court.2

A. House Bill 1330 authorized the Commission to permit placement of a Ten Commandments monument so long as that monument complied with federal precedent.

Pursuant to 74 0.5.2011, § 4102, the Commission is tasked with controlling “the display of art objects in public areas of the Capitol . . . .“ The Commission accomplishes this task by establishing standards and procedures for the acquisition and display of artwork, including privately donated work, at the Capitol. 74 0.5.2011, § 4104(A)(2), (3). In 2006, the Commission adopted administrative rules to ffirther implement and guide its decision-making process. (See Comm’n Rules, Ex. 14-A, at 1). According to statute and Defendant’s administrative rules, the display of artwork at the Capitol must “directly relate[] to the history and culture of the State of Oklahoma.” § 4104(A)(2); (Comm’n Rule 115:l0-1-2(a)(1), Ex. 14-A, at 7). Defendant’s administrative rules also state that a donated work of art must be of museum quality, must be approved by the Commission, and must be “consistent with legislative directives.” (Comm’n Rule 115:10-1-2(a), Ex. 14-A, at 7). In this case, a legislative directive placed additional limits on acceptance of a Ten Commandments monument.

On May 18, 2009, the Governor signed into law House Bill 1330 (“HB 1330” or “Act”). That Act informed the Commission that it could “permit and arrange for the placement on the State Capitol of a suitable monument displaying the Ten Commandments.” 74 0.5.2011, § 4110W); (HB 1330, Ex. 15, at 2). But HB 1330 directed that acceptance of any such monument be in accord with the law and Supreme Court precedent as set forth in Van Orden. As such, for the Commission to place a Ten Commandments monument on the State Capitol Grounds, the monument had to be of museum quality, directly relate to the history and culture of the State of Oklahoma, and comply with Van Orden. HB 1330 further
directed that such a monument (1) “shall be designed, constructed, and placed on the Capitol grounds. . at no expense to the State of Oklahoma” and (2) “shall not be construed to mean that the State of Oklahoma favors any particular religion or denomination thereof over others.” § 4110(B); (RB 1330, Ex. 15, at 2).

Finally, in notifying the Commission that it could accept placement of such a monument, RB 1330 made three legislative findings:

1. 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;

2. That the courts of the United States of America and of various states
frequently cite the Ten Commandments in published decisions; and

3. Acknowledgements of the role played by the Ten Commandments in our
nation’s heritage are common throughout America.
(RB 1330, Ex. 15, at 2).

13. Following enactment of HB 1330, the Commission permitted placement of the Ten Commandments Monument at no expense to the State.

On August 20, 2009, following enactment of RB 1330, the Commission began discussing possible placement of an appropriate monument on the State Capitol Grounds. (Comm’n Agenda, Aug. 20, 2009, Ex. 14-D, at 1). And at the request of the Commission’s then-Chairman, Colonel John Richard, House Representative Mike Ritze provided the Commission with a letter describing the type of display authorized by RB 1330—one that copied the Tcn Commandments monument on the Texas State Capitol Grounds (“Texas Monument”), and that was the subject of the Van Orden litigation. (Ritze Letter, Jucie 1, 2009, Ex. 14-B, at 1). Colonel Richard also requested that Duane Mass, Capitol Architect and Chair of the Architecture and Grounds Committee, begin to communicate with that subcommittee regarding potential placement.3 (Mass Dep., Ex. 12, at 14:7-13, Apr. 15, 2014). On October 15, 2009, Mass presented a preferred placement for the Monument, (Comm’n Minutes, Oct. 15, 2009, Ex. 14-B, at 2), and on December 17, 2009, following approval by the subcommittee, the Commission approved that placement. (Comm’n Minutes, Dec. 17. 2009, Ex. t4-G, at 2).

While Mass offered two possible locations for the Monument, he strongly preferred one—the north side where it currently sits. (Mass. Dep., Ex. 12, 16:15-16). Noting that this was his personal favorite, Mass stated in a letter to the subcommittee that it was a “good location as it is near the Native American Cultural foundation and plaza [(“Flag Plaza”)] and also away from the parking areas and provides a more formal setting for the piece.” (Mass Letter, Aug. 17, 2009, Ex. 14-C, at 1). Indeed, Mass felt strongly about this location as it had been “a long -time goal to pull visitors ... to the north side” of the Capitol—with this Monument representing the next opportunity to develop the north side.4 (Mass Dep., Ex. 12, 18:16-19; 33:17-24). Conversely, Mass disfavored the south side—the second option preferred by several subcommittee members—because it already had many monuments and received a lot of foot traffic. (Mass Dep., Ex. 12,21:18-23).

Further, the Monument was placed on an existing circulation route immediately surrounding the Capitol so as to avoid the creation of new sidewalks. (Mass. Dep., Ex. 12, 34:13-17). This existing circulation route—a level sidewalk—rings the Capitol and, at the time of the Capitol Building’s construction, was formed using the natural topography. (Mass
Dep., Ex. 12, 57:5-24). Thus, because the Capitol Building sits on a hill, the sidewalk appears raised on the north but not on the south.5 Id.

Once placement was approved, Mike Ritze began privately raising money to donate the Monument, and the Commission tabled any further discussion on the matter until such time as the display was complete. (Comm’n Minutes, Aug. 19, 2010, Ex. 14-H, at 3).

C. From siting and design to final installation, the Monument was placed on the State Capitol Grounds at no expense to the People of the State.

On June 16, 2010, Ritze contracted with Si Memorials for the creation of the Monument. (Si Memorials File, Ex. 6, at 1). Si Memorials crafted the Monument on the basis of rubbings made of the Texas Monument by employees of Si Memorials who traveled to Austin, Texas for that purpose. (Mosier Aff., Ex. 7, at 1). Once complete, Si Memorials then installed the Monument on the State Capitol Grounds. (Mosier Aff., Ex. 7, at 1). All work done by Si Memorials was privately funded by Ritze and his family’s trust. (Si Memorials File, Ex. 6, at 4-5; Mosier Aff., Ex. 7, at 1).
While Si Memorials worked on the Monument, local, small business owners with knowledge of paving and stone work,
Kathryn and Michael Sanford, purchased granite for paving stones, concrete, rebar, equipment, and all miscellaneous items needed to dig the base for the Monument. (K. Sanford Aff., Ex. 10, at 1). Mr. Sanford had the granite shipped to an independent granite company to be cut and polished to match the granite paving stones present on the State Capitol Grounds. (M. Sanford Aff., Ex. 11, at 1). Prior to installation, he, along with his employees and volunteers, hand-dug the footing, placed the rebar, and poured the concrete for the base. (M. Sanford Aff., Ex. 11, at 1). Once installed by Mr. Sanford then had his stone mason contractor return to set the paving stones around the Monument. (M. Sanford All., Ex. 11, at 1). All of the work done by the Sanfords and all
materials they supplied were privately donated. (Sanford File, Ex. 9; K. Sanford Aff., Ex. 10, at 1; M. Sanford Aff., Ex. 11, at 1). Now installed, the Monument requires no maintenance. (Mass Dep., Ex. 12, 28:17).6

B. The Ten Commandments Monument is one of many monuments located on the State Capitol Grounds.

The Monument’s placement on the State Capitol Grounds makes it one of many
monuments included on the Capitol Complex as a whole. (Monuments, Ex. 1; Arts Council List, Ex. 4). The Capitol Complex comprises approximately 100 acres, on which sits the Capitol Building (built in 1917), libraries, museums, art galleries, other governmental buildings, working oil wells, and expansive open spaces.7 Numerous monuments and a multitude of historical plaques are housed amongst these buildings and spaces.8

Many of these monuments and plaques depict both the secular and spiritual history of
Oklahoma. They include a tribute to President Washington, a statue honoring pioneer
women, a multi-war veterans memorial complex, a statue depicting the promise As Long As
The Waters Flow, a monument to the Oklahoma City Oil Field, a plaque honoring “The Most
Worshipful Grand Lodge” bearing a Masonic symbol, a monument to Dr. Martin Luther
King, Jr., an Earth Day Tree monument, and many other flags, monuments, and plaques depicting the spiritual and historical roots of Oklahoma?

On the exterior, several monuments are far more prominent and arguably more noteworthy than the rest. Named The Guardian, a statue sits atop the Capitol dome and is “rife with Native symbolism,” being “a composite of material and spiritual and cultural characteristics of Oklahoma’s thirty-nine tribes.”10 Also, dedicated in 1930, a plaque commemorates the planting of the Christ Thom Tree in honor of President Woodrow Wilson on the west side of the Capitol. (Monuments, Ex. 1, at Item 68). Near the location of the Ten Commandments Monument on the north, the Flag Plaza—a large collection of monuments and flags—centers around the Spring of Life Rock. (Monuments, Ex. 1, at Item 105).

Moreover, the flags dominating the landscape on the north side are rich with Native American spiritual symbolism. Those flags include, among others: (1) the Wyandotte Nation Flag depicting the belief that the world was created on the back of a turtle, (2) the Tonkawa Tribe Flag with its water bird in the center representing the rising spirit and flesh of the Tonicawa People to assume their place among God’s creation, (3) The Peoria Tribe Flag depicting arrows that each represent a gift from the Great Spirit, (4) the Ottawa Tribe Flag depicting the otter to the right of the tree—a symbol of the basic religion of the Ottawa, (5) the Otoe Missouria Tribe Flag depicting a prayer feather, (6) the Muscogee Creek Nation Flag depicting wheat and a plow representing the Christian influence on the tribe as reflected in Joseph’s dream, (7) the Kialegee Tribe Flag depicting a black Christian cross for the faith of the modem Creek people, (8) the Cherokee Nation Flag depicting the sacred fire, and (9) the Cheyenne Arapaho Tribe Flag depicting a tepee surrounded by three white Christian crosses and two emblems of war and peace.1 1

Inside the Capitol itself, a vast collection of art, statues, and bronze casts depict the history and culture of Oklahoma.’2 Such works include statues and bronzes such as Soaring Spirit, The Spirit of Heritage, The Blessing, and With the Vision of an Eagle.’3 Paintings include Pro Patria, a painting honoring a soldier answering the call to serve in World War I as an angel watches over the The painting The Earth and I Are One depicts a Native American meditating.’5 In addition, many paintings honor citizens who made significant contributions to the State of Oklahoma, including Dr. Angie Debo, a leading scholar of Native American and Oklahoma history and pastor of her local Methodist church, and Pastor Benjamin Harrison Hill, elected to the Oklahoma House of Representatives in 1968 and President of the Tulsa Branch of the NAACP.’6 In short, the evidence demonstrates that the Ten Commandments Monument is one of many monuments and works of art, all rich with symbolism (some religious), that dot the Capitol Grounds. Much like their other assertions, Plaintiffs’ allegation that the Monument stands alone both in its location and in its
symbolic significance—a significance that Plaintiffs choose to attach to the Monument—is simply unsupported by the evidentiary record.

Summary of the Argument

In 2005, the Supreme Court held in Van Orden that a monument identical to the one here was constitutional. 545 U.S. at 703-04 (Breyer, J., concurring). And just this month, the Supreme Court held in Town of Greece v. Galloway that based on the history of legislative prayer, a town’s practice of opening town board meetings with prayer was well within the bounds of permissible government action under the Establishment Clause. Ex. 16, No. 12- 696, at 23-24 (U.S. May 5, 2014). As such, Establishment Cause cases recently decided by the Supreme Court reflect what this State long ago understood: exposure to a passive monument that reflects historical practice—even if religiously influenced—does not violate constitutional principles. Van Orden, 545 U.S. at 691-92.

Indeed, the State Supreme Court held as far back as 1946 that subsidies paid by the State to a Baptist-operated orphanage did not violate Article 2, Section 5 of the Oklahoma Constitution. Murrow Indian Orphans Home v. Childers, 1946 OK 187, l 2, 171 P.2d 600. And in 1959, the State Supreme Court held that the construction of a memorial chapel to be owned by the State likewise did not violate Article 2, Section 5. State v. Williamson, 1959 OK 207, ¶ 1, 347 P.2d 204. Nor did a lighted “50 foot high, Latin Cross” installed by the Oklahoma City Council of Churches at Oklahoma City expense on land maintained by Oklahoma City violate the Oklahoma Constitution in a 1972 challenge. Meyer i’. 0/cIa.
City, 1972 OK 45, ¶ 1, 11, 496 P.2d 789. All of these state cases recognized that “[ut 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.” Murrow Indian Childrens Home, 19460K 187, ¶ 7.

As with an orphanage, construction of a memorial chapel, and a lighted 50-foot cross, the instant challenge must fail as the Ten Commandments Monument on the State Capitol Grounds does not violate Article 2, Section 5. On the contrary, it is as constitutional as the Texas Monument upheld in Van Orden. Therefore, this Court should fmd that Plaintiffs’ attempt to rewrite the standard governing this Establishment Clause claim fails in the face of clear precedent.
Argument and Authorities

A. Summary judgment should be entered in Defendant’s favor as there is no substantial controversy as to any material fact, and the Commission is entitled to judgment as a mafter of law.

Summary judgment is proper when the evidentiary material shows that “there is no substantial controversy as to any material fact.” OKLA. STAT. tit. 12, ch. 2, app., R. 13(a). When the basic facts are undisputed, summary judgment should only be denied “if under the evidence, reasonable men could reach a different conclusion[]” as to those facts. F.D.I.C. v. Moss, 1991 OK 116, ¶ 27, 831 P.2d 613; see also Brown v, Okia St. Bank & Trust Co. of Vinita, 1993 OK 117, ¶ 7, 860 P.2d 230. flere, the undisputed facts demonstrate that the Commission is entitled to summary judgment.

B. The Supreme Court has already found a Ten Commandments monument identical to this one constitutional, and Plaintiffs cannot materially distinguish that case from this one.

The State Supreme Court “look[s] to federal law for persuasive instruction when considering similar state law questions.” Boswell v. Schultz, 2007 OK 94, ¶T 15 n.l7, 175 P.3d 390, 395. It, therefore, makes no difference here that the Plaintiffs bring theft claim under Article 2, Section 5 rather than under the First Amendment to the United States Constitution, because those two provisions are indistinguishable in the context of religious endorsement claims. See Meyer, 1972 OK 45, ¶ 3 (stating that violations of Article 2, Section 5 could also be violations of the First Amendment). In fact, in Williamson, the State Supreme Court upheld the building of a chapel based on both Article 2, Section 5 and the First Amendment. 1959 OK 207, ¶ 6, 7. Therefore, this Court can—and should—look to analogous federal precedent when considering this Article 2, Section 5 challenge. And analogous federal precedent shows that the Monument does not constitute an impermissible endorsement of religion.

In Van Orden, a case wholly indistinguishable from this one, the Supreme Court reviewed the constitutionality of the Texas Monument on which the Oklahoma Monument is based and found the Texas Monument constitutional. 545 U.S. at 692. Justice Breyer wrote that “the Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious” because such absolutism is inconsistent with the Nation’s traditions and would “tend to promote the kind of social conflict the Establishment Clause seeks to avoid.” 545 U.S. at 699 (Breyer, J., concurring).’7 Indeed, Justice Breyer wrote that courts “must distinguish between real threat and mere shadow.
Here, we have only the shadow.” Id. at 704 (internal quotation omitted).

Rather, courts reviewing an Establishment Clause challenge to a passive monument need only determine whether the display conveys a secular moral and historical message. Id. at 701 (Breyer, J., concurring). To do so, courts exercise their legal judgment, for which there

is “no test-related substitute,” and consider the physical setting of the monument, examining the overall context in which it resides. Id. at 700, 702. Indeed, Justice Breyer focused extensively on the physical setting of the Texas Monument—a large park with “17 monuments and 21 historical markers, all designed to illustrate the ‘ideals’ of those who settled in Texas and of those who have lived there since that time.” Id. at 702. And based on its physical setting, Justice Breyer concluded that “the State itself intended the
nonreligious aspects of the tablets’ message to predominate.” Id. at 701. Finally, Justice Breyer emphasized that the Texas Monument had been on the Texas Capitol Grounds for forty years without incident—the only fact upon which Van Orden can be distinguished from this case. Id. at 702.

Here, the Monument is identical to the Texas Monument. Indeed, it was based on rubbings made of that monument. It also sits in a large park spanning more than 100 acres, but has considerably more monuments and plaques—sixty-four monuments, thirty-four plaques, and many commemorative flags. (See Monuments, Ex. 1; Arts Council List, Ex. 4). Moreover, the monuments and plaques clearly illustrate Oklahoma ideals from territorial times to the present—depicting, as this artwork does, Native American themes, Oklahomans of notoriety, and important state events. See it!. Further, the State itself obviously intended the nonreligious aspects of the Monument’s message to predominate given the Act’s three purpose statements reflecting the historical message to be taken from the Monument. Finally, while this Monument is a contemporary installation, having been installed in 2012, that fact alone is not dispositive and cannot work to take this case outside of the Van Orden precedent, as a newly-minted Supreme Court opinion demonstrates.

On May 5, 2014, the Supreme Court released the Town of Greece opinion. Ex. 16, No. 12-696 (U.S. May 5, 2014). There, the Supreme Court clarified the analysis required for a challenge such as this one. It ruled that the town’s practice of opening town board meetings with prayer was well within the bounds of permissible government action under the First Amendment. Id. at 23-24. The Supreme Court’s analysis focused on the history of legislative prayer generally, even though the town’s practice was a contemporary practice, only having been instituted in 1999. Id. 1, 6-9. The Supreme Court stated that “it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.” Id. at 8.

Here, while the Ten Commandments Monument on the Capitol Grounds is likewise new, the constitutionality of the Monument should be analyzed according to the historical practice of having like Ten Commandments monuments on government property. This includes such monuments on state capitol grounds—the exact practice upheld in Van Orden. 545 U.S. at 677. Consistent with Town of Greece, the historical constitutionality of the passive Texas Monument—a monument of identical design—directly supports the constitutionality of the Monument here. As such, Plaintiffs cannot escape federal Establishment Clause precedent and its impact on this case. Instead, Plaintiffs must attempt to convince this Court that Article 2, Section 5 does much, much more than its federal analog. But State Supreme Court precedent does not support that conclusion either.

C. Oklahoma precedent clearly supports the constitutionality of the Monument.

Plaintiffs seemingly ask this Court to rewrite the governing standards and hold, for the first time, that Article 2, Section 5 goes far beyond the federal Establishment Clause, and works as a per se ban against any monument that conveys a religious message, even an historical one.

Article 2, Section 5 of the Oklahoma Constitution provides that “[nb 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 OKLA. CONST. art. 2, § 5. This provision works to avoid either (1) “the adoption of sectarian principles” or (2) “the monetary support for one or several or all sects.” Afeyer, 1972 OK 45, ¶ 6. But this constitutional provision “does not mean to compel or require separation from God,” because to do so “would be directly contrary to cardinal precepts of the founding and preservation of our government.” Williamson, 1959 OK 207, ¶ 13. That is, the State Supreme Court long ago recognized that there is nothing unconstitutional about acknowledging the role played by the Judeo-Christian faiths in the founding of our Nation and our State. In this case, the Ten Commandments Monument does not work to adopt sectarian principles and was placed on the Capitol Grounds at no expense to the State, confirming that the Monument’s mere acknowledgement of the historic role of the Ten Commandments does not violate Article 2, Section 5.

1. The Monument was placed on the Capitol Grounds for its historical significance to the State as clearly indicated in HB 1330, suggesting nothing of the religious.

In Williamson, the State Supreme Court reviewed the construction of a memorial chapel upon the grounds of a state-owned orphans home that was intended as a gift from a private trust to the home. 1959 OK 207, ¶T 4, 17. The State Supreme Court explained that “[t]his memorial chapel when completed was to be owned by the State, to be maintained or managed by the State Board of Public Affairs and the. . . Orphans Home.” Id. In addition to its other uses, this home was intended “to provide a place for the voluntary worship of God by children of the Orphans Home,... [where) religious services might be conducted. . ., but without requiring any child to attend any one of such services.” Id.
Consequently, even though the chapel might have been voluntarily used as a place of worship for some children, its use for assembly purposes where religious worship was not required demonstrated “that the construction or use of this proposed improvement [did] not violate” the Oklahoma Constitution. Id. at ¶ 18.

Similarly, in Meyer, the State Supreme Court reviewed a “50 foot high, Latin Cross” that was originally installed on the State Fair Grounds by the Oklahoma City Council of Churches, but that was maintained by Oklahoma City. 1972 OK 45, ¶11. The State Supreme Court easily held that the cross could not conceivably be said to operate for the use, benefit, or support of any particular institution. Id. at ¶T 11. And much like Justice Breyer’ s Van Orden opinion, the Meyer Court held: “[n]otwithstanding 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” Article 2, Section 5. Compare Meyer, 1972 OK 45, ¶ 11 with Van Orden, 545 U.S. at 704 (Breyer, J., Concurring) (stating that courts “must distinguish between real threat [to the Establishment Clause] and mere shadow” (internal quotation omitted)).

Here, RB 1330’s purpose statements clearly reflect the historical significance of the Ten Commandments to the State and the Nation (being as they were a foundation of the laws and legal system of both) and the many legal citations to the Ten Commandments in published decisions. Indeed, as articulated in the third purpose statement, “[a]cknowledgements of the role played by the Ten Commandments in our nation’s heritage are common throughout America.”18 Moreover, the Williamson Court took great pains to catalogue the faith-based heritage of the State and the Nation, finding those identified historical practices “unmistakably and impressively authoritative” support for the constitutionality of a chapel constructed on grounds owned and maintained by the State. 1959 OK 207, ¶ 14 (recounting locally and nationally the publicly-supported maintenance of military and legislative chaplains, chapels, and numerous references to God).
Moreover, unlike Town of Pryor and Williamson that were arguably closer calls, here there are no facts suggesting that the Commission or the Monument’s donor were religiously motivated. There is simply no evidence even remotely suggesting that the purposes for the Monument were other than those identified in the Act itself, and those purposes were clearly secular.

Given its historical and surrounding context, passive display of the Ten Commandments on this Monument is far removed from the active religious influence addressed by the Oklahoma Constitution. Indeed, “it is not the exposure to religious influence that is to be avoided.” Murrow Indian Childrens Home, 1946 OK i87, ¶ 7. This secular display of the Ten Commandments is far from the grand symbology of a fifty-foot lighted cross deemed fitting under the Oklahoma Constitution. Moreover, this Monument is indistinguishable from the many other monuments, plaques, and flags presently on the State Capitol Grounds, some of which convey both Judeo-Christian and Native American spiritual symbolism. Thus, in recognizing the historic relation between the Ten Commandments and the law, the Monument does not advance any particular faith. Like children using a chapel or fair-goers viewing a cross, Capitol visitors may subjectively attribute whatever personal significance they choose to the Monument, but the objective reasonable observer viewing the Monument, its purpose, and its context must conclude that it is not endorsing religion.

2. The Monument was placed on the Capitol Grounds at no expense to the State, negating the suggestion that the State is somehow supporting the JudeoChristian faiths to the exclusion of all others,

In Murrow indian Orphans Home, the State Supreme Court reviewed an annual, per
child payment for the maintenance and care of orphaned children residing at a Baptist-run children’s home. 1946 OK 187, IT 2. The State Supreme Court held the payment constitutional, despite the children’s exposure to attendance at church services, because “[tjhe State [was] fulfilling a duty to needy children.” Id. at IT 9. The State Supreme Court distinguished the case from Gurney v. Ferguson, 1941 OK 397, 122 P.2d 1002, where “public money was being spent to furnish a service to a parochial school for which no corresponding value was received” by the State. Murrow Indian Orphans Home, 1946 OK 187, ¶ 5. The State Supreme Court concluded that so long as such contracts “involve[d] the element of substantial return to the State and [did] not amount to a gift, donation, or appropriation [by the State] to the institution having no relevancy to the affairs of the State,
• . no constitutional provision [is] offended.” Id. at ¶ 9.

In Meyer, the State Supreme Court returned to this concept and examined it in context of Oklahoma City’s maintenance of a lighted, fifty-foot cross. 1972 OK 45, ¶ 1. There, the City had the lot “landscaped with flowers, shrubs and a lawn; [t]he [dross ha[d] six electrical outlets, [and] Oklahoma City [paid] the electricity for the use of the triangular lot.” Id. But the State Supreme Court determined forthrightly that the maintenance of the cross could not “conceivably be said to operate for the use, benefit or support of any of the institutions or systems named in” Article 2, Section
5. Id at ¶ 11. Suggesting that its location in a distinctly secular environment in the midst of persons in pursuit of secular entertainment negated the constitutional attack, the State Supreme Court gave short shrift to any suggestion that the City’s maintenance of the cross could be said to endorse a particular faith. Id.

Here, Plaintiffs present an even weaker case than the Meyer plaintiffs to suggest the State provided any monetary support for the placement or the maintenance of the Monument on public property. The Monument was constructed, sited, and placed at no cost to the State in a distinctly secular location in the midst of persons pursuing secular business—the State Capitol Grounds. Instead, the Monument was funded entirely by private donation. Even the labor was donated. Despite being the Capitol Architect, Mass’s presence on the Commission is voluntary, and he was not compensated for his efforts in designating the Monument’s location at all. Further, the Monument requires zero maintenance. That the Monument rests on property owned by the State is the only means by which Plaintiffs could suggest that the State provided monetary support to the benefit of a particular faith. But if a fifty-foot, lit cross resting on State property and maintained and lit by Oklahoma City does not violate Article 2, Section 5, then neither does the Ten Commandments Monument. The Ten Commandments Monument cannot be said to endorse a particular faith by virtue of its existence on the Capitol Grounds. Precedent in this State is clear: exposure to religious content within an historic understanding is not the evil that Article 2, Section 5 of the Oklahoma Constitution seeks to avoid. But in attempting to avoid the impact of Van Orden and this State’s well-settled law, mere exposure is exactly the standard that Plaintiffs would have this Court adopt. This Court should reject Plaintiffs’ attempt to rewrite Oklahoma’s Constitution in this manner.

Conclusion

For these reasons, the Commission requests this court grant Defendant’s Motion for Summary Judgment and conclude that the Commission is entitled to judgment as a matter of law.


PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

COME NOW, Bruce Prescott, James Huff, and Cheryl Franklin, Plaintiffs herein,’ by and through their attorneys of record, Brady R. Henderson and Ryan Kiesel of the American Civil Liberties Union of Oklahoma Foundation, and objects to the Motion for Summary Judgment filed by Defendant Oklahoma Capitol Preservation Commission on May 22, 2014. As argued in greater detail below, this case is neither ripe nor appropriate for summary judgment, presenting substantial controversies as to material facts that require presentation and cross-examination of evidence and adjudication of disputed facts by this Court. As such, summary judgment cannot be granted under Rule 13 of the Oklahoma District Court Rules.

Introduction and Background

Defendant’s Motion for Summary Judgment might appear convincing on its face—right up to the point where the reader gives its legal arguments the slightest scrutiny or subjects many of its alleged “facts” to the most cursory verification. With but a scratch of its surface, the Motion collapses under the weight of material misstatements, misdirection, half-truths, and no-truths, all of which serve to cover thinly the substantial factual controversies in this case. Finding the first examples of these requires this Court to look no further than the introductory material on the Motion’s first two pages.

The Introduction begins with two false statements back-to-back. First, Defendant states, “The United States Supreme Court (“Supreme Court”) has already held that a Ten Commandments monument identical to Oklahoma’s is not an impermissible endorsement of religion.”2 The Defendant cites Van Orden v. Perry for this assertion. While it is true that the decision in 1/an Orden found the retention of the Fraternal Order of Eagles’ Ten Commandments monument on the grounds of the Texas State Capitol to be consistent with the Establishment Clause, that monument is not identical to Oklahoma’s.

As repeatedly and explicitly noted in Van Orden, the Texas monument bears the inscription, “PRESENTED TO THE PEOPLE OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS 1961.” Oklahoma’s monument lacks such inscription because it was not erected as part of the Fraternal Order of Eagles (hereinafter “FOE”) program of the 1950s and 1960s, but rather as the result of Representative Mike Ritze’s donation in 2O12. At first glance, this might seem like a small distinction relative to the whole text and iconography of the two monuments, which are otherwise based on the same FOE design. However, its materiality is demonstrated prominently in Van Orden and in other cases analyzing Ten Commandments monuments placed or donated by the FOE, which cite the nature, activities, purpose, and/or local ties of the FOE itself as evidence of the secular purpose or context necessary to overcome an Establishment Clause challenge to these otherwise religious monuments.5

In Van Orden itself, the case on which Defendant’s Motion relies so heavily as to argue that “Plaintiffs’ claims are absolutely foreclosed” by it, the original finding that the US Supreme Court affirms is that the State of Texas, in erecting the Ten Commandments monument there, “had a valid secular purpose in recognizing and
commending the Eagles for their efforts to reduce juvenile delinquency.”6 As such, Van Orden’s holdings rely at least partially on an important feature and corresponding history of the Texas Ten Commandments monument that is absent in Oklahoma, a distinction wholly omitted from Defendant’s Motion and directly contravening their false assertion.
Second, the false statement concerning Oklahoma’s Ten Commandments Monument itself is followed immediately by a bogus assertion of legal precedent. It states, “And every other court that has analyzed a Ten Commandments monument
based on the Fraternal Order of Eagles design (as the monument in Van Orden and this one are) has reached the same conclusion.”7 This is not true. While several courts have mirrored Van Orden’s Establishment Clause holdings concerning these monuments, such as the four opinions cited by Defendant in its Motion, “several” does not equal “every.” Directly contravening Defendant’s false assertion of law, multiple federal courts have reached the opposite conclusion when analyzing these monuments, such as Books v. City of Elkhart, decided by 71h Circuit in 2000, or Chambers v. City of Frederick, et al., from Federal District Court in 2003. Moreover, two of the four opinions cited by Defendant are reversals of contrary district court conclusions, meaning that a simple reading of the very opinions cited by Defendant to support its proposition proves that same proposition to be false on its face.9

These two false assertions do not stand alone in Defendant’s Motion, where they share space with numerous spurious factual allegations. These include, but are not limited to, the purported allegations ascribed to Plaintiffs’ Petition in the bulleted paragraphs of Page 2 of Defendant’s Motion. Of the three, the first broadly misstates Plaintiffs’ allegations, taking significant liberty with interpreting the language of Plaintiffs’ Petition, the second misquotes and misconstrues Plaintiffs’ argument and responds to it with a factual assertion inconsistent with one made by Defendant in another recent court pleading, and the third appears to fabricate an outright lie.10

Rather than take away too much from the legal arguments that lay at the heart of this case by addressing all of these factual issues in full detail here, Plaintiff has created a separate Appendix attached to this Response. It lists the more significant false or disputed factual allegations made by Defendant along with a brief refutation of each.
Returning now to the legal arguments at the heart of Defendant’s Motion, even if Defendant’s opening false statements were true, they would only undergird a fundamentally fallacious premise. Defendant hinges much of its argument for summary judgment on the idea that the US Supreme Court’s decision in Van Orden v. Perry renders Plaintiffs’ claims “absolutely foreclosed.”11 This is not so: Plaintiffs’ claims present neither the same facts nor context as the case in Van Orden. Moreover, Van Orden’s holdings are limited in scope by another United States Supreme Court Ten Commandments display decision handed down immediately following Van Orden and reaching the opposite result, McCreary County v. ACLU of Kentucky, even a cursory acknowledgement or mention of which is curiously absent in Defendant’s 20-page Motion.12 Moreover, Plaintiffs’ claims are based on a provision of the Oklahoma Constitution differing significantly from the Establishment Clause of the United States Constitution,

I. Contrary to Defendant’s assertion3 the holdings of Van Orden v. Perry, do not create a viable case for summary judgment here.

Even if we were to pretend, as the Defendant does, that the Ten Commandments monuments in Oklahoma and Texas were identical, Van Orden v. Perry militates against summary judgment in the instant case, not for it. While Defendants cite the decision (in other words, the result) to argue that Plaintiffs’ claims must fail, they rather conveniently gloss over core holdings and rationales of the Van Orden decision. Van Orden features no majority opinion of the US Supreme Court. Rather, only four justices joined in a plurality opinion, with Justice Breyer rendering a separate concurrence in the decision based on different reasoning, and four justices dissenting.13

While in the instant case, Defendant predicates its arguments repeatedly on the “identical” FOE design of the monuments in Oklahoma and Texas, both Van Orden’s plurality opinion and Breyer’s concurrence stand devoid of anything suggesting that the aesthetic design or physical characteristics of the Texas Capitol monument is particularly relevant to their respective conclusions.14 Both opinions instead look significantly at the context in which the Ten Commandments themselves are erected and displayed as being dispositive. While each respective opinion differs on the relative degree of analysis and weight to give particular contextual evidence, both opinions share the common thread that significant weight is to be given to the monument’s context, and particularly its physical or aesthetic inclusion in a group of monuments.15

Breyer’s concurrence goes on to cite the source of the Texas monument (the FOE) and the FOE’s purpose and ties to the State of Texas as significant in showing a predominant secular theme to the monument rather than a religious one.16 As evidence that the monument was not generally understood to have a divisive religious message, Breyer’s opinion cites and discusses the 40 year period between the Texas monument’s erection and constitutional challenge, while the plurality points to the six year period between the plaintiffs’ first contact with the monument and his lawsuit for similar effect) Finally, Breyer also looks to the setting of the monument and whether it lends itself to a religious purpose such as meditation or otherwise suggests something of the sacred)8

The setting and context of Oklahoma’s Ten Commandments Monument is distinct from that of Texas as to each and every one of these attributes:

First, as to the physical context of inclusion, Oklahoma’s Monument was authorized and placed in a manner that effectively disconnects it from other monuments on the grounds of the Oklahoma State Capitol. While Defendant expends great quantities of paper and ink listing the overall number of monuments on the Capitol Complex grounds and even listing the paintings within the State Capitol, none of this gets to the heart of context in anything but the most coarse and shallow manner.19 This determination must look further than how many monuments, plaques, or flags happen to occupy the same one-hundred acre piece of real estate, but rather concerns their contextual connection and grouping. In this sense, while Defendant argues that the Ten Commandments Monument is part of a group, the evidence supposedly demonstrating this is woefully insufficient and in fact appears to contravene this assertion in some ways.2°

The record demonstrates that Defendant worked to avoid, not create a Van Orden-esque context choosing not to place Oklahoma’s Ten Commandments Monument on the monument-rich south side of the State Capitol because it “already had many monuments,” and instead opting for a location on the north side, described as “unique,” and “which supports the reflective purpose of the individual in relation to the object” while also providing “a more formal setting for the piece,” and avoiding the south side monument plaza’s “less reflective area for the individual attempting to seek solace using this monument.”21 Moreover, the minutes of the Capitol Preservation Commission meetings and supporting materials included with Defendant’s Motion fail to demonstrate any attempt to create a conversational relationship with other monuments other than a reference to the Ten Commandments being visible from the Flag Plaza on the Capitol’s north lawn, or vice versa.22

The Defendant’s decision not only set the Ten Commandments monument in a part of the State Capitol grounds where no other monuments directly interact with it or contextualize it, but also placed it on the raised platform immediately surrounding the Capitol building, in a place suggesting through its height, uniqueness, and aesthetic setting, the exact sacred and meditative setting described by Breyer as being absent in Van Orden.23

As to the source and historical context, these two attributes also differentiate Oklahoma’s monument from that in Van Orden. As stated previously, the Oklahoma monument does not and cannot have the same historical connection with the Fraternal Order of Eagles. Moreover, the divisive nature of Oklahoma’s contemporary placement of its monument has allowed no decades-long gap like that discussed in Van Orden. On the contrary, the controversy that Oklahoma now endures, including a state and federal lawsuit and threatening possibilities of litigation from entities such as the Satanic Temple, seems to illustrate what Breyer’s concurrence alludes to when it compares the “short (and stormy) history” of more contemporary unconstitutional efforts to erect state Ten Commandments monuments in Kentucky with the significant historical context of the Texas monument. Breyer states: “.. .in today’s world, in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more
contemporary state effort to focus attention on a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.”24

The contextual differences inherent in the Oklahoma and Texas Ten Commandments monuments are more than considerable enough as to make Defendant’s assertion that Van Orden is “a case wholly indistinguishable from this one” rather laughable. Moreover, as can be seen from the record presented in this case thus far and Plaintiffs’ analysis above, the parties in the instant case maintain significant factual controversy as to the contextual relationship of the Ten Commandments monument to other monuments. We cannot yet seem to agree whether the monument is on a raised platform, whether there are other monuments around it, or even how many monuments there actually are on the Capitol grounds.

II. Contrary to Defendant’s assertion, Establishment Clause jurisprudence both supports Plaintiffs’ claims and the need for further findings of fact.

Then Moses went up, also Aaron, Nadab, and Abihu, and seventy of the elders of Israel, and they saw the God of Israel. And there was under His feet as it were a paved work of sapphire stone, and it was like the very heavens in its clarity. . . Then the Lord said to Moses, “Come up to Me on the Mountain and be there; and I will give you tablets of stone, and the law and commandments which I have written, that you may teach them.25

The Ten Commandments, as now enshrined on granite at the Oklahoma State Capitol, differ fundamentally from that which surrounds them. The Commandments’ uniqueness is found not just in their respective topics, tone, or setting, but in their original authorship. As the Biblical accounts of Exodus and Deuteronomy relate, the Ten Commandments, unlike other codes of conduct, was not hammered out in a legislative committee, drafted by a PAC, or proposed by referendum. But rather, according to both Christian and Jewish tradition, each of the Ten Commandments was written directly by the hand of God.26

Such divine pedigree cannot be overlooked or overruled by the contrary pronouncements of an earthly legislature, as the United States Supreme Court noted in Stone v. Graham:

The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters. . .rather the first part of the Commandments concerns the religious duties of believers, worshiping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day.27

In the more recent and more factually similar case of Van Orden, the plurality opinion written by Chief Justice Rehnquist makes a similar observation, though in far more matter-of-fact terms, stating, “Of course, the Ten Commandments are religious — they were so viewed at their inception and so remain.”28 But as the plurality opinion continues, in addition to their religious foundation, “the Ten Commandments have an undeniable historical meaning.. .Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.”29

Despite this pronouncement in Van Orden, on the same day, the US Supreme Court found two displays of the Ten Commandments newly placed at Kentucky Courthouses to violate the Establishment Clause. Unlike Van Orden, this case, McCreary County v. ACLU of Kentucky, was decided by a majority opinion of the Court.3° Like Oklahoma’s Monument the Kentucky displays prominently recited the text of the Commandments and were placed contemporaneously and outside of any particular secular effort or program such as that undertaken by the Fraternal Order of Eagles in the 1950s and 1960s to combat juvenile delinquency.31

The holding and decision in McCreary gives us some key points of analysis for the instant case. First, despite Defendant’s implicit argument that Oklahoma’s Ten Commandments Monument can be viewed in the same lens as various flags and plaques at the State Capitol that depict or show some arguably religious theme or that
acknowledge the existence of a supreme being, this argument ignores a fundamental distinction. Oklahoma’s Ten Commandments Monument does not merely acknowledge the existence of God; its explicit text commands our citizens’ obedience to God’s will. In fact it commands our citizens’ obedience to one particular version of one particular statement of God’s will, to the implicit exclusion of others. As stated by the Court in
MeCreary:

[The Ten Commandments] proclaim the existence of a monotheistic god (no other gods). They regulate details of religious obligation (no graven images, no sabbath breaking, no vain oath swearing). And they unmistakably rest even the universally accepted prohibitions (as against murder, theft and the like) on the sanction of the divinity proclaimed at the beginning of the text. Displaying that text is thus different from a symbolic depiction, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith.”32

What McCreary demonstrates is also found in Oklahoma precedent—the notion that mere symbolic depiction of a religious symbol or artistic work is far different from explicit imperative text. The Ten Commandments are the latter, not the former. The converse situation is illustrated in the Oklahoma Supreme Court case of Meyer v. Oklahoma City, in which the retention of a pure symbol (specifically a large Latin Cross) was found not to violate Oklahoma’s prohibition on the use of public money or property for support of religious institutions or systems.33 The Court in Meyer reasoned that the cross “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 names in Art. 2 § 5 [of the Oklahoma Constitutionj.”M

The text of the Ten Commandments is a polar opposite of the strictly symbolic “silent form” analyzed in Meyer, containing explicit and direct text rather than mere evanescent or subconscious symbolism as might be found in a work of art or sculpture.35 As the Court in McCreary opines concerning the Ten Commandments, “Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote a religious point of view.”36 Justice Breyer’s concurrence in Van Orden makes a similar point:

On the one hand, the Commandments’ text undeniably has a religious message, invoking, indeed emphasizing, the Deity. On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used. And that inquiry requires us to consider the context of the display.”37

As these findings and holdings demonstrate, when the Ten Commandments itself is enshrined on government granite, the question is not “is it religious?” But rather, the question must be, “is it contextualized in a way that can override its predominant religiosity.” Such is further demonstrated by the US Supreme Court in MeCreary, reflecting on the precedent of Stone v. Graham:

Stone stressed the significance of integrating the Commandments into a secular scheme to forestall the broadcast of an otherwise clearly religious message.. .and for good reason, the Commandments being the central point of reference in the religious and moral history of Jews and Chrisfians.”38

Ten Commandments precedent mandates a higher standard of secular context for this explicitly religious text to be permissible in government speech than might be required of symbolic depiction of religion, like that in Meyers. As to whether Oklahoma’s Monument has sufficient secular context, answering such a question requires an inquiry into the physical and historical context of the Ten Commandments Monument, one the Defendant seeks to forestall by summary judgment. Plaintiffs’ contend to this court (and believe the evidence will show) that such context is limited, if not virtually non-existent or even counterproductive. Defendant contends otherwise. This Court is thus faced with doing what courts are often faced with doing—deciding what is true, and what is not.

Likewise, despite Defendant’s improper and unfounded assertion to the contrary, Plaintiffs’ have not and do not argue for any “categorical bar against any sort of monument depicting religious symbology on state property” or for a “per se ban against any monument that conveys a religious message, even a historical one.39 On the contrary, Plaintiffs opposes summary judgment at this juncture, rather than makes a counter-motion, precisely because no bright-line rule can be drawn that does not require case-specific facts to be found concerning the nature and context of a particular religious display. Plaintiffs’ Petition itself contains dozens of paragraphs of factual allegations concerning the context and setting of the Monument that would be mere surplusage if Plaintiffs actually sought the aforementioned bright-line rule. Many of these factual allegations remain in controversy. By seeking summary judgment before probative evidence may be taken and tested, the only party arguing for a categorical outcome to this case is the Defendant.

The Defendant also attempts to effect a categorical outcome by appealing to the new US Supreme Court decision in Town of Greece v. Galloway (a legislative prayer case) for the proposition that one may get around looking at the contemporary context of the Monument where history shows an acceptance of “the historical practice of having like Ten Commandments monuments on government property.”4° This argument is perhaps the most impressive work of smoke and mirrors found in Defendant’s Motion. Town of Greece, in its simplest relevant terms, holds that the US Supreme Court is willing to relax its traditional Establishment Clause analysis where there is significant evidence that the very people who created the First Amendment endorsed a particular practice, in this case legislative prayer, in the early American Congress.41

In the instant case, no evidence has been introduced or even alleged to exist regarding the acceptance of textual Ten Commandments monuments by the framers of either the United States or Oklahoma Constitutions. Defendants instead pretend that either Van Orden’s decision has even a modicum of similarity to the above, or that the general historical practice of acknowledging Cod suffices.42 As has been demonstrated above, neither of these arguments holds water.

III. The Standards of the Oklahoma Constitution, like those of the Establishment Clause, do not support summary judgment.

Despite the stronger focus on federal Establishment Clause jurisprudence in Defendant’s Motion, it does acknowledge accurately that Plaintiffs in the instant case make their claim under Article 2, Section 5 of the Oklahoma Constitution, which states:

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.43
This provision, included in Oklahoma’s Constitution upon its original enactment rather than by amendment, creates a broad mandate against government support of religion. Unlike the Establishment Clause, it is written to focus on the use of property rather than the creation of law. Its plain and unambiguous language militates for the broad scope with which Oklahoma’s Supreme Court has applied it, dealing with everything from mandatory YMCA fees for students at what is now Oklahoma State University, to public school buses being used to transport sectarian school pupils.

As stated in its most recent published Article 2, Section 5 case, Meyer v. City of Oklahoma, the Oklahoma Supreme Court notes:

Our prior decisions make it clear that whenever public money or property became operative in an effective way to be appropriate, 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.45

This language would appear to take in a greater scope than the First Amendment where state property or money is concerned, yet Defendant declares that Article 2, Section 5 is “indistinguishable” from the Establishment Clause in religious endorsement claims.46 There is no holding and little if any precedent that supports this.47 Since the Oklahoma Supreme Court has not yet taken up a Ten Commandments monument or display challenge case, it is unclear whether the Court would view the Oklahoma Constitution as mandating broader protection or not in this particular case.

That said, it is possible that a broader scope may not alter practically the legal fabric of the instant case anyway. From Meyer, which currently stands as the only Oklahoma Supreme Court Section 5 case dealing with a religious monument display, it would appear that the same two essential questions in similar Establishment Clause cases are largely dispositive under Article 2, Section 5 as well—namely religiosity of a monument and context.18 As detailed above, both of these strongly militate against granting of Defendant’s Motion for Summary Judgment in the instant case.

Conclusion

Defendant’s argument for summary judgment is fundamentally disjointed from the real facts and law at work in the instant case. For summary judgment to be granted to Defendant, this Court would have to indulge Defendant’s game of make-believe. Simply pretending that a false fact is true or that Plaintiffs make arguments that they do not make cannot substitute for probative inquiry and discourse. Such inquiry is necessary to resolve this case and ensure that the Court can apply the proper facts to the proper law.

AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANT BY PROFESSOR MARK E. DEFORREST

INTEREST OF AMICUS CURIAE

Professor Mark E. DeForrest is an associate professor of law at Gonzaga University
of Law and the author of An Overview and Evaluation of State Blame Amendments: Origins,
Scope, and First Amendment Concerns, 26 Han’. J.L. & Pub. Pol’y 551(2003), which this
Court cited in its Order Directing the Parties to File Supplemental Briefs and Continuing
Hearing. He has also written other articles addressing Blame Amendments and the First
Amendment’s religion clauses, including Locke v Davey: The Connection Between the
Federal Blame Amendment and Article I, 11 of the Washington State Constitution, 40 Tulsa
L. Rev. 295 (2004), and The Use and Scope of Extrinsic Evidence in Evaluating
Establishment Clause Cases in Light of the Lemon Test ‘s Secular Purpose Requirement, 20
Regent U. L. Rev. 201(2008). As a noted scholar of Blame Amendments and author of the
article cited by the Court in its order, Professor DeForrest has an interest in providing this
Court with an understanding of the “history and/or expressed purpose” of those amendments
(as the order states) and how, in light of that history and purpose, OkIa. Const. art. 2, § 5— Oklahoma’s Blame Amendment—should be construed and applied in this case.’

SUMMARY OF ARGUMENT

The failed federal Blame Amendment and the Blame Amendment-like constitutional provisions subsequently adopted by a number of States, including Oklahoma, were intended to address a discrete and iimited concern: the allocation of public funds to aid “sectarian”— contemporaneously understood to mean “Catholic”—mnstitutions, primarily educational institutions. Cases addressing and applying state Blame Amendments have reflected this
narrow focus, up to and including the present day. Neither the history nor the expressed purpose of state Blame Amendments, including Oklahoma’s Blame Amendment, suggests that they would have any applicability with respect to passive public displays or monuments like the Ten Commandments monument on thc Oklahoma State Capitol grounds at issue in this case. Therefore, OkIa. Const. art. 2, § 5 poses no barrier to the monument’s placement.

ARGUMENT

I. The History Of The Federal Blame Amendment And State Blame Amendments,
Including Okla. Const, Art. 2, § 5, Demonstrates That They Were Directed At
Prohibiting Government Aid To Sectarian Institutions, Not Passive
Governmental Displays.

A. The Federal Blame Amendment

In the second half of the nineteenth century, the allocation of public funds to sectarian institutions—principally Catholic educational institutions—became a hot-button national issue, triggered largely by the increased immigration of Catholics to the then- overwhelmingly Protestant United States. The public schools of the era were far from religion-free institutions. Most of them were heavily infused with a generic Protestantism designed to inculcate what were then seen as typical American values and to foster the assimilation of immigrants. See Mark Edward DeForrest, An Oven’iew and Evaluation of Stale Blame Amendments: Origins, Scope, and First Amendment Concerns, 26 I-law. J.L. & Pub. PoI’y 551, 558-59 (2003) (hereinafter State Blame Amendments). Thus free public schools frequently included overt Protestant religious expression, such as readings from the King James Bible. Id. at 559; Joseph P. Viteritti, Blame ‘s Wake: School Choice, the First Amendment, and State Constitutional Law, 21 Harv. J.L. & Pub. Pol’y 657, 668 (1998). Due to the perceived overlap between American ideals and generic Protestant religiosity, the Protestant content provided at the schools was seen not as a sectarian imposition but as an education in basic American democratic values. State Blame Amendments, at 5 59-60; see also Steven K. Green, The Blame Amendment Reconsidered, 36 Am. J. Legal list. 38, 45 (1992).
In light of the overwhclming—and overt—Protestant nature of public education, Catholics began to seek public funding on an equal basis for schools that would preserve Catholic values and traditions in the new country. State Blame Amendments, at 559-60. From the Catholics’ perspective, they were being forced to pay taxes to support the Protestant public schools, so it was only fair that Catholic schools be eligible for public funding or that Catholic parents receive tax rebates equal to the amount of their taxes that funded public schools. Id. at 560. Alternatively, Catholics sought to de-Protestantize the public schools. Id. While early efforts in the 1 840s and I 850s were generally unsuccessful, Catholics began to score successes at the municipal and, occasionally, state levels in the 1860s and 1870s as their numbers increased due to immigration. Id. at 561-62. These victories, however, led to a national backlash designed to prohibit public aid to Catholic schools and to bolster the generic Protestant nature of American public schools. Id. at 562- 63; see also Jill Goldenziel, Blame s Name in Vain? State Constitutions, School Choice, and Charitable Choice, 83 Deny. U. L. Rev. 57, 63 (2005).

The pinnacle of these efforts was the federal Blame Amendment. National Republican Party leaders had become involved in the movement to ban public aid to sectarian schools. President Ulysses S. Grant—eager to divert attention from scandals engulfing his administration, and to portray his Democratic opponents as allied with the Roman Catholic Church—threw his support behind a constitutional amendment prohibiting the practice. State Blame Amendments, at 564-65. Tn 1875, Representative and then-Speaker of the House James Blame of Maine, a presidential aspirant, took up the charge and proposed an amendment to the United States Constitution. Blame’s proposed amendment specifically targeted public aid to religious schools, stating in relevant part:

[No money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

Id. at 556; H.R.J. Res. 1,44th Cong., 1st Sess., 4 Cong. Rec. 205 (1875).

The House of Representatives passed a version of the Blame Amendment with
language that removed its legally binding language, reducing the Amendment to little more than a statement of principles. State Blame Amendments, at 567-68. The Senate, however, took up a more robust version of the amendment that, among other things, emphatically prohibited the use of “public property” and “public revenue” for “the support of any school, educational or other institution under the control of any religious or anti-religious sect, organization, or denomination, or wherein the particular creeds or tenets shall be taught.” 4 Cong. Rec. 5453 (1876). The Senate version also clearly stated, however, that nothing in the amendment should be read “to prohibit the reading of the Bible in any school or institution[.j” Id.

The floor debate over the Senate version of the Blame Amendment sheds significant light on its purpose of barring funding of Catholic institutions while preserving broader—i.e, generically Protestant—religious expression. The stated goal of the Amendment’s supporters was to curtail the ability of Catholic institutions to receive public funds for parochial education. State Blame Amendments, at 570-7 1. For example, one senator argued that Catholics were “opposed to any school that did not teach their religion,” 4 Cong. Rec. 5585 (1876) (statement of Sen. Morton). while another, Senator George Edmunds, proclaimed that it was a solemn imperative to resist the teachings of the Catholic Church “by every constitutional amendment and by every law in our power,” Ed. at 5588 (statement of Sen. Edwards). At the same time, Senator Edmunds insisted that the amendment would only prohibit the teaching of the “particular tenets or creed of some denominations,” not purge general religious principles from public schools or other public institutions. Id.; see also State Elaine Amendments, at 570-71.

In large part due to perceptions of anti-Catholicism, the Blame Amendment ultimately did not make it out of Congress. But both the text and legislative history of the amendment make clear that its purpose was not to strip out religion or religious references from public institutions, much less to bar passive public displays like the Ten Commandments monument at issue here. Indeed, the “strong” version of the Blame Amendment debated in the Senate expressly permitted the reading of the Bible in public schools, and its supporters maintained that it would not interfere with general religiosity in the public schools. Rather, the clear purpose of the Blame Amendment was to preserve the generic Protestantism of public schools and eliminate the possibility that distinctly Catholic teachings and traditions might seep into public schools or otherwise be funded by the government. See Meir Katz, The State of Elaine: A Closer Look at the Elaine Amendments and Their Modern Application, 12 Engage: J. Federalist Soc’y Prac. Groups 111, 112 (2011). In sum, the federal Blame Amendment was not intended to eliminate public acknowledgements of religion, and whatever else can be said of the proponents of the federal Blame Amendment, they would be shocked to find that the proposed amendment would be used to argue against general acknowledgments of the importance of religion in public life.

B. State Blame Amendments, Including Oklahoma’s Blame Amendment

After the failure of the federal Blame Amendment, the debate over constitutional prohibitions on aid to sectarian schools shifted to the States, where the movement picked up considerable steam. See State Blame Amendments, at 573. Only one year after the defeat of the federal Blame Amendment, fourteen States had enacted legislation to prohibit public aid to religious schools. Id. In the ensuing decades, approximately thirty states, including Oklahoma, would include Blame-style amendments in their State constitutions. Id.

The texi of OkIa. Const. art. 2, § 5 clearly marks it as a progeny of the federal Blame Amendment. That section, enacted in 1907, states:

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 parallels to the federal Blame Amendment are obvious. As first proposed by Rep. Blame, the Blame Amendment stated that “no money raised by taxation ... or derived from any public fund ... nor any public lands” intended for public schools shall “ever be under the control of any religious sect.” The version of the Blame Amendment taken up by the Senate is even more similar to Oklahoma’s provision: it barred the use of “public revenue” and “public property” for “the support of any school, educational or other institution under the control of any religious or anti-religious sect, organization, or denomination, or wherein the particular creeds or tenets shall be taught.” All three provisions, moreover, employ the key term “sect” or “sectarian.” As the Supreme Court has observed, during this period in American history, “it was an open secret that ‘sectarian’ was code for ‘Catholic.” Mitchell v. Helms, 530 U.S. 793, 828-29 (2000) (plurality). Indeed, the Court has expressly recognized the anti-Catholic nature of the Blame Amendment captured in the term “sectarian” as it was understood at the time. See ii at 828 (noting that “[o]pposition to aid to ‘sectarian’ schools acquired prominence in the 1870’s with Congress’ consideration (and near passage) of the Blame Amendment”).

The 1906 federal Enabling Act authorizing the creation of the State of Oklahoma further underscores the connection between art. 2, § 5 and the federal Blame Amendment. See Pub. L. No. 234, 34 Stat. 267 (1906). The Act established certain conditions for the entrance of Oklahoma into the Union, stating that the new Oklahoma state constitution “shall provide” for certain provisions. Id. § 3. Among them was a requirement that the State maintain public schools “which shall be ... free from sectarian control.” Id. § 3 ¶ 6. That requirement became Oklahoma Const. art. 1, § 5, which retains the same language verbatim. The Oklahoma Supreme Court has expressly recognized the connection between art. 1, § 5 and art. 2, § 5, concluding that the reference in art. 2, § 5 to “sectarian institution[s]” covers sectarian schools because to conclude otherwise would undercut the requirement in art. 1, § 5 that schools be “free from sectarian control.” See Gurney v. Ferguson, 1941 OK 397, ¶ 8, 122 P.2d 1002, 1003; see also Id. (stating that “there is no doubt that section 5, article 2, prohibits the use of public money or property for sectarian or parochial schools”).2
In sum, the text and history of the federal Blame Amendment and art. 2, § 5 of the Oklahoma Constitution leave little doubt that these provisions were intended to address a discrete, limited concern: the use of public funds or property to aid “sectarian”—then understood to mean “Catholic”—institutions, primarily educational institutions. Proponents of these provisions were perfectly fine with other public acknowledgements of religion, such as the reading of the Bible in public schools, indeed, the same Oklahoma constitutional convention delegates who enacted art. 2, § 5 opened that convention with a “supplication to the Divine Presence” led by a minister who praised the “Almighty and everliving God.” Journal of the Proceedings of the Constitutional Convention of the Proposed State of Oklahoma 5 (1906). Thus the proposition that these delegates would have believed art. 2, § 5 to prohibit a passive display containing the Ten Commandments strains credulity.

II. Cases Interpreting And Applying State Blame Amendments, Including OkIa. Const. Art. 2, § 5, Demonstrate That The Amendments Are Directed At Prohibiting Government Aid To Sectarian Institutions, Not Passive
Governmental Displays.

Consistent with this text and history, in the nearly 150 years since the failure of the federal Blame Amendment and the adoption of state Blame provisions, the overwhelming majority of cases requiring interpretation or application of state Blame provisions—in Oklahoma and around the nation—have involved the use of public funds to allegedly aid religious institutions, primarily educational institutions. None has prohibited passive displays like the Ten Commandments monument at issue here-—a telling indication that state Blame Amendments have never been understood to apply to the circumstances here and that Okla. Const. art. 2, § 5 does not in fact apply here.

The Oklahoma Supreme Court has only occasionally addressed art. 2, § 5, and the only cases in which it has invalidated statutes under that provision involved public aid to religious institutions, principally educational institutions. For instance, in Gurney, the Court struck do a statute that required school boards to provide transportation to students at parochial schools when those students’ schools were on or near the same route the buses were already taking. See 1941 OK 397 at ¶ 9, 122 P.2d at 1003-04. Even after the Supreme Court upheld a similar practice under the Establishment Clause in Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947), the Oklahoma Supreme Court subsequently reaffimied Gurney on § 5 grounds. See Bd. of Educ. for Indep. Sch. Dist No. 52 v. Antone, 1963 OK 165, ¶ 6, 384 P.2d 911, 913. Additionally, in the earliest case to rule on § 5 grounds, the Court struck down a public college’s charging of students, as a condition of admission, a fee that was used to support YMCA and YWCA facilities. Conneli v. Gray, 19120K 607,1110,127 P. 417,421.

No other published decision by the Oklahoma Supreme Court has found a violation of art. 2, § 5. And the only other cases in which the court has considered § 5 confirm that the provision is not intended to prohibit passive displays—even when the display might be characterized as governmental recognition of religion, and even when such passive recognition benefits religious educational institutions. Thus, when the City of Enid, Oklahoma, increased taxes to purchase the local religiously affiliated university, the Court found no § 5 violation because the economic return that the city obtained through the deal was more than enough to render passive any possible inference of the government expressing religion. Burkhardt v. City of Enid, 1989 OK 45, ¶ 15, 771 P.2d 608, 612; see also Sharp v. City of Guthrie, 1915 OK 768, 1130, 152 P. 403, 408 (holding thai sufficient return to city from purchase of religious school negates concerns about organization’s religiosity). Indeed, the return need not even be economically measurable; in Murrow Indian Orphans Home v. Childers, 1946 OK 187, ¶ 9, 171 P.2d 600, 603, the Oklahoma Supreme Court upheld against a § 5 challenge the contractual payment of funds to a religiously-oriented orphanage that allowed the State to “fuffill[] a duty to needy children.” Similarly, in Meyer v. Oklahoma City, 1972 OK 45, ¶ 11, 496 P.2d 789, 792, the court rejected a § 5 challenge to the placement and maintenance of a passive 50-foot cross on state fairgrounds property, and in State for Use and Benefit of Town of Pryor v. Williamson, 1959 OK 207, ¶ 4, 347 P.2d 204, 205, the court rejected a § 5 challenge to the State’s accepting a gift of a passive memorial chapel to be maintained on state grounds.

Oklahoma case law thus con-elates with the history of the Blame provisions, which as explained were intended not to prevent passive displays—or even less passive acknowledgements of the importance of religion—but to prevent financial aid to specific religious groups. In Childers, the Oklahoma Supreme Court explicitly recognized this purpose in construing § 5: “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.” 1946 OK 187 at ¶ 7, 171 P.2d at 602.

Cases from other States involving their Blame Amendments confirm that the provisions’ purposes have been understood to target public aid to sectarian organizations, especially religious schools, not passive government displays. That is the case whether state supreme courts have upheld or invalidated laws challenged under the respective state Blame Amendment. New York’s highest court, for example, addressed a challenge to funding books for children in both public and religious schools, holding that this did not violate the state’s Blame Amendment because “any benefit accruing lo [parochial] schools is a collateral effect of the statute,” which does not give aid either “directly or indirectly” to religiously affiliated schools. Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 20 N.Y.2d 109, 116(1967), aff’d, 392 U.S. 236 (1968). Similarly, Kentucky’s highest court addressed whether appropriation of funds to religiously affiliated hospitals violated that state’s Blame provision, holding that it did not. Ky Bldg. Comm’n v. Effron, 220 S.W.2d 836 (Ky. 1949) (finding no violation because hospitals had no educational mission and had secular function of serving all citizens). That court, however, has also held that a $10 million appropriation for the construction of a pharmacy school at a religious college violated the provision, because the purpose of the provision is “to prohibit all public funding of sectarian or religious colleges.” Univ. of Cumberlands v. Pennybacker, 308 S.W.3d 668, 676 (Ky. 2010).

The Arizona Supreme Court has held that tax breaks for donating to student tuition at religious schools do not run afoul of its Blame provision. Kotterman v. Killian, 972 P.2d 606, 616, 619-20 (Ariz. 1999) (noting further that the state’s role in providing tax breaks is “entirely passive”). But it has also held that school vouchers and tuition grants for private schools violate the provision because they constitute direct financial support of religious schools. Cain v. Home, 202 P.3d 1178, 11 83 (Ariz. 2009). Other state supreme courts have reached divergent outcomes regarding the legality of similar school voucher programs under state Blame Amendments. Compare, e.g, Sheldon Jackson Coil. v. Alaska, 599 P.2d 127, 132 (Alaska 1979) (program violates Blame Amendment), with Meredith v. Pence, 984 N.E.2d 1213, 1227 (md. 201 3) (program does not violate Blame Amendment), and Jackson v. Benson, 578 N.W.2d 602, 621 (Wis. 1998) (same).

Thus while state supreme courts have reached conflicting, even diametrically opposed, results in cases implicating their respective state Blame Amendments, the cases all share the common trait of involving public aid to religious institutions, primarily educational institutions. By contrast, Blame Amendments did not feature prominently in the cases that ultimately led the Supreme Court to uphold the constitutionality of Ten Commandments displays in Van Orden v. Perry, 545 U.S. 677 (2005). The focus on Blame Amendments in the aid cases, but not the passive display cases, underscores the history and discrete purpose of state Blame Amendments, as recounted above, and it confirms that the provisions— including Oklahoma’s version—have never been understood to apply to passive governmental displays like the monument as issue here.

CONCLUSION

The failed federal Blame Amendment and its state progeny, including Okla. Const. art. 2, § 5, were proposed and enacted to address a discrete and limited concern: public aid to sectarian institutions, which at the time these provisions were debated referred primarily to Catholic institutions. Proponents of these provisions had no quarrel with government acknowledgements of the importance of religion in public life, and indeed they contemporaneously endorsed actions, including the reading of the Bible in public schools, that the Supreme Court has subsequently invalidated. It is consequently unthinkable that they would have believed that provisions like art. 2, § 5 apply to passive government displays like the Ten Commandments monument at issue here, or that those provisions could be employed to invalidate public displays permissible under Supreme Court precedent. And the dearth of cases applying state Blame provisions to passive government displays—and corresponding deluge of cases in which those provisions have been invoked to challenge government aid to religious institutions—confirms that art. 2, § 5 does not prohibit the monument at issue here.

Outcome: PRINCE: DEFENDANT OKLAHOMA CAPITOL PRESERVATION 'S MOTION FOR SUMMARY JUDGMENT- SUSTAINED, J.E. TO BE SUBMITTED, COURT REPORTER APRIL BLOYE

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's Comment: The passage of the statute authorizing the placement of the monument was bad public policy and the sustaining the Defendant's motion was an unfortunate judicial act. I have been bombarded this unwelcome Christian religious philosophy all of my life and do not support any government actions supporting the establishment of any religion. I unfortunately anticipate that the Oklahoma Supreme Court will, more than likely, affirm the District Court's minute order sustaining the Oklahoma Capitol Preservation Commission's Motion for Summary Judgment.