10 Commandments Marker Has Got to Go

(CN) - The Oklahoma Supreme Court on Monday rejected the state's last-ditch effort to keep a Ten Commandments monument at the state Capitol.

The state supreme court rejected the state's request for a rehearing by 7-2 vote.

The court ruled on June 30 that the 6-foot-tall stone monument violates Article 2, Section 5 of the Oklahoma Constitution, 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, after state lawmakers authorized it in 2009.

In ordering the monument removed, the Oklahoma Supreme Court declined to apply recent U.S. Supreme Court precedent in which a Ten Commandments monument in neighboring Texas was found not to 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 states. "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."

In requesting a rehearing on July 14, Oklahoma Attorney General Scott Pruitt said the court's ruling ignored the "profound historical impact of the Ten Commandments" and "contradicted previous decisions."

Pruitt said it "appears entirely inconsistent" for the high court to rule that Article 2, Section 5 bans the use of public property "for any religious purpose" in this case, yet in a previous case allowed a large, lighted cross to be placed on public property "for an admittedly religious" purpose.

"Appellants argue that this Court's opinion is consistent with the Court's prior opinion in Meyer v. Oklahoma City," Pruitt wrote. "But there is no rational reading of Meyer that supports a 50-foot-tall, lighted cross as not serving 'any religious purpose.' In fact, this Court acknowledged the sectarian purposes of the persons who erected the cross."

In a concurring opinion, Chief Justice John Reif wrote Monday that he would have granted a rehearing for the limited purpose of addressing Meyer, because it "provides helpful guidance in deciding whether a particular use of public property is for the benefit" of a religion.

Reif said the current case fails Meyer's two-part test, of the monument being "in a distinctly secular environment in the midst of persons in pursuit of distinctly secular entertainment" and displaying "any ideas that are alleged to pertain to any of the sectarian institutions or systems named in Article 2."

In dissent, Justice Doug Combs wrote that he would grant a rehearing because the court's strict reading of Article 2 "ignores the context-based analysis" used in Meyer and fails to overrule that opinion.

"The appellee's need for clarification is apparent," Combs wrote. "I do not believe the intent or effect behind this Ten Commandments Monument was for the adoption of sectarian principles. My belief is based not only on our context-based analysis in Meyer but also on the standard the district court and the parties agreed was proper to use in this analysis; one based on federal jurisprudence in Establishment Clause cases."

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."

Fallin said she was "deeply disturbed" by the court's ruling. She could not be reached for comment Monday evening.

Follow @davejourno

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