The Oklahoma Ten Commandments Decision Highlights a Bizarre, Anti-Religious Anomaly in the Law

by David French

Yesterday the Oklahoma Supreme Court ordered the state to remove a privately-funded Ten Commandments monument from the state’s capitol grounds. Although the monument was similar to a display the U.S. Supreme Court approved in Van Orden v. Perry, the Oklahoma court ordered it removed under a provision of the Oklahoma state constitution that declares:

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.

Since the case was decided on state constitutional grounds, it has little substantive relevance outside Oklahoma. It does, however, raise once again a question I’ve asked in multiple cases of this type. Why do cases like this even get to court? How does any plaintiff have standing to challenge a visual display? While Oklahoma law may have its own permutations, in virtually every jurisdiction and in virtually every substantive area of law, to file a lawsuit a plaintiff can’t simply allege that the government acted illegally (otherwise citizens could choke the court system with claims that any given statute, regulation, or government act was unlawful). They also have to allege that they’ve suffered a “concrete” and “particularized” injury as a result of the allegedly lawless act. 

Yet what is the injury here? Are citizens offended by the sight of the monument? Typically, citizens aren’t deemed “injured” by government action simply because they’re offended by what they see. In such a case, their recourse is to the political process or to the court of public opinion — to pressure the government to reverse course. Yet for years the U.S. Supreme Court (and other courts) have allowed litigants to file suit to remove monuments like the Ten Commandments, memorial crosses, or nativity scenes merely because they were so-called “offended observers.” The mere sight of a religiously-significant symbol is apparently deemed so grotesque that it creates special rights to sue for its removal. In other words, if you’re a citizen offended by a government message, suck it up and move on. If, however, you’re offended by a government message of religious significance, then welcome to the courthouse.

Simply put, it’s a doctrine concocted for the purpose of driving religious symbols from public places. When one looks at the legal history of the last fifty years, the extent of anti-religious legal distortions can be breathtaking. Not only is the Establishment Clause interpreted in a manner unrecognizable to the Founders (though, again, not at issue in the Oklahoma case), but the most basic procedural rules of court are often twisted to enable the assault.