Oklahoma Fights Its|Top Court Over Religion

OKLAHOMA CITY (CN) - Oklahoma is making a final effort to save the Ten Commandments monument at the state Capitol, with a new religious freedom defense.

Attorney General Scott Pruitt claims that the Oklahoma Supreme Court showed impermissible hostility to religion by ordering the cross removed from state property.

The state supreme court ruled on June 30 that the 6-foot-tall stone monument violates Article 2, Section 5 of the Oklahoma Constitution, which states that "no public money or property" should be applied or donated for the use of any church, denomination, religious leader or sectarian institution.

Bruce Prescott sued the state in 2013, a year after the privately funded monument was installed. State lawmakers authorized it in 2009.

The state supreme court declined to apply a recent U.S. Supreme Court ruling that a Ten Commandments monument in neighboring Texas did not violate the federal Establishment Clause.

"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," the per curiam opinion stated. "Our opinion rests solely on the Oklahoma Constitution with no regard for federal jurisprudence. As concerns the 'historic purpose' justification, the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths."

The state supreme court denied Pruitt's request for a rehearing on July 27. Pruitt claimed the court's ruling ignored the "profound historical impact of the Ten Commandments" and "contradicted previous decisions."

On Thursday, Pruitt said, he filed a brief with Oklahoma County Judge Thomas Prince, asking to amend the state's original answer in the case. Pruitt asked the trial judge to consider if the state supreme court ruling "creates hostility toward religion that violates the U.S. Constitution."

"In defending the Ten Commandments display, my office argued the monument was lawfully permitted on Capitol grounds because of the historical significance of the text on the development of Western legal code," Pruitt said in a statement. "In its decision to remove the monument, the Oklahoma Supreme Court held that no matter how historically significant or beneficial to the state, state law prohibits any item on state property or to be funded by the state if it is at all 'religious in nature.'"

Pruitt said the ruling bans "manifestations of faith from the public square in such a way" to create hostility against religion.

"We are asking the district court to allow the state to amend its original answer so we may fully address this new concern," Pruitt said.

The original plaintiff Prescott is represented by the American Civil Liberties Union of Oklahoma. The ACLU said it has received "dozens and dozens" of questions about the fate of the monument since the ruling and is awaiting a mandate from the Oklahoma Supreme Court.

"Once the Oklahoma Supreme Court issues its mandate, which could be any day now, then it's up to Judge Prince to act," ACLU of Oklahoma Executive Director Ryan Kiesel said on Aug. 21. "After that, the removal process will start. ... We understand that the state needs a reasonable amount of time to move and store the monument. But we consider reasonable time in weeks and not months."

Gov. Mary Fallin said on July 7 that the monument would not be removed until legal appeals and "potential legislative and constitutional changes are considered."

"The monument was built and maintained with private dollars," Fallin said at the time. "It is virtually identical to a monument on the grounds of the Texas State Capitol which the United States Supreme Court ruled to be permissible. It is a privately funded tribute to historical events, not a taxpayer funded endorsement of any religion, as some have alleged."

Follow @davejourno

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