In a case we have been following, Oklahoma’s Supreme Court has ruled that a Ten Commandments monument on the Oklahoma Capitol grounds is unconstitutional under state law.  We previously reported on the lower court’s decision that the six-foot monument, which was a gift from an Oklahoman, did not violate the state constitution because of its historical value.  Following the Supreme Court’s decision in Prescott v. Oklahoma Capital Preservation Commission, the monument will have to be removed.

In reversing the lower court’s decision, the Supremes rejected the Preservation Commission’s reliance on Van Orden v. Perry, 545 U.S. 677 (2005), a case involving the U.S. Constitution’s Establishment Clause.  The Oklahoma court noted that “the issue in the case at hand is whether the Oklahoma Ten Commandments monument violates the Oklahoma Constitution, not whether it violates the Establishment Clause.” (emphasis in original).

Van Orden involved a Texas Ten Commandments monument placed in a large park containing 17 monuments and 21 historical markers to demonstrate the ideals of those who settled in Texas.  The U.S. Supreme Court found that the monument had “dual significance, partaking of both religion and government.”  The Preservation Commission argued that the Oklahoma monument had some similar historic value.

But the Oklahoma Supreme Court noted that its “opinion rests solely on the Oklahoma Constitution with no regard for federal precedent.”  Article 2, Section 5 of the Oklahoma Constitution 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.

Oklahoma’s Supreme Court focused on the use of the word “indirectly” in the state constitution to find the broad and expansive prohibition against using public property to promote religion.

As shown in Prescott, the distinction between state and federal constitutions, although not always obvious, may be substantial.  In light of Prescott, local governments throughout the country may wish to carefully review state constitutions – in addition to federal law – before permitting state or municipal religious displays on public property.