Oklahoma Supreme Court Upholds Voucher Plan Over Blaine Amendment Objections

In Oliver v. Hofmeister, (OK Sup. Ct., Feb. 16, 2016), the Oklahoma Supreme Court upheld the constitutionality of the state's voucher program that permits children with disabilities to attend any private school of their choice to obtain special education services, whether the school is sectarian or non-sectarian.  The Court held that the program does not violate the "no aid" clause of Oklahoma's Constitution, Art. II, Sec. 5 (Oklahoma's Blaine Amendment), saying in part:

Because the parent receives and directs the funds to the private school, sectarian or non-sectarian, we are satisfied that the State is not actively involved in the adoption of sectarian principles or directing monetary support to a sectarian institution through this scholarship. When the scholarship payment is directed to a sectarian private school it is at the sole and independent choice and direction of the parent and not the State. The scholarship funded through the Act has no bearing on state control of churches. We are convinced that the scholarships funded by the Act have no adverse impact on the ability of churches to act independently of state control and to operate separately from the state.

Tulsa World, reporting on the decision, says that in 2014-15, 61% of the the $2.5 million total vouchers went to religious schools.

Replica of Removed Oklahoma 10 Commandments Given To Oklahoma Governor [Corrected]

AP reports that on Friday, 11 riders from a Texoma Cowboy Church in Wichita Falls, Texas delivered to Oklahoma governor Mary Fallin a replica of the Ten Commandments monument which a court ordered moved from the Oklahoma statehouse grounds. (See prior posting.)  Rev. John Riggs, leader of the church, told the governor:

We're riding for the law of God today. We fully believe that this country was founded upon the principles of God's word. It breaks our hearts to see where this country is headed and to see the removal of the law of God from our land, from our buildings.

Fallin said she will place the replica in her office. [Corrected--an earlier version of this posting incorrectly said the replica was delivered to the governor of Texas.]

Oklahoma Supreme Court Denies Rehearing In 10 Commandments Case, With Lengthy Opinions

In an Order dated July 27, 2015, the Oklahoma Supreme Court by a 7-2 vote denied a rehearing in Prescott v. Oklahoma Capitol Preservation Commission, in which the court in June held that a Ten Commandments monument must be removed from the statehouse grounds. (See prior posting.)  The Order denying a rehearing was accompanied by 4 separate concurring opinions and one dissenting opinion (full text), which are much lengthier than the original opinion.

10th Circuit: Oklahoma's License Plate Design Survives Compelled Speech Challenge

In Cressman v. Thompson, (10th Cir., Aug. 4, 2015), the U.S. 10th Circuit Court of Appeals rejected a compelled speech challenge to Oklahoma's standard vehicle license plates that depict a Native American shooting an arrow towards the sky. Plaintiff claims that the depiction is based on a sculpture derived from a Native American legend, and that, in violation of his Christian beliefs, it teaches there are multiple gods and the arrow is an intermediary for prayer.

Judge Holmes' majority opinion held that even though the U.S. Supreme Court's recent Walker decision held that license plates are government speech, that does not settle the question of whether plaintiff has been compelled to appear to endorse the government's message. He went on:

at bottom, Mr. Cressman’s claim fails because he cannot demonstrate that the Native American image is, in fact, speech to which he objects. At least in the context of its mass reproduction on Oklahoma’s standard vehicle license plate, the Native American image is not an exercise of self-expression entitled to pure-speech protection. The image may constitute symbolic speech, but the only conceivable message a reasonable observer would glean from the license plate is one to which Mr. Cressman emphatically does not object—namely, a message that communicates Oklahoma’s Native American culture and heritage.

Judge McHugh concurring objected to the majority's focus on whether the depiction involved pure speech or symbolic expression. She said in part:

[O]nce it is determined the license plate is speech, the restrictions on the Oklahoma government’s right to compel a private individual to carry its message apply equally, irrespective of whether the individual is compelled to speak through words, actions, symbols, or gestures....

As the majority has explained in detail, Mr. Cressman does not disagree with the message Oklahoma intended to convey with its standard license plate.... And he has directed us to no evidence supporting his assertion that third parties would interpret the graphic as a message promoting pantheism, the message with which he disagrees.

AP reports on the decision.

Oklahoma Governor Opposes 10 Commandments Holding

As previously reported, last week the Oklahoma Supreme Court held that a controversial Ten Commandments monument on the statehouse grounds violates the state constitution.  Yesterday, in response, Oklahoma Gov. Mary Fallin issued a statement (full text) resisting the holding. She said:

The Ten Commandments monument was built to recognize and honor the historical significance of the Commandments in our state’s and nation’s systems of laws. The monument was built and maintained with private dollars. 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.

Nevertheless, last week the Oklahoma Supreme Court ruled Oklahoma’s Ten Commandments monument was impermissible. Their decision was deeply disturbing to many in our Legislature, many in the general public, and to me.

Oklahoma is a state where we respect the rule of law, and we will not ignore the state courts or their decisions. However, we are also a state with three co-equal branches of government. At this time, Attorney General Scott Pruitt, with my support, has filed a petition requesting a rehearing of the Ten Commandments case. Additionally, our Legislature has signaled its support for pursuing changes to our state Constitution that will make it clear the Ten Commandments monument is legally permissible. If legislative efforts are successful, the people of Oklahoma will get to vote on the issue. 

During this process, which will involve both legal appeals and potential legislative and constitutional changes, the Ten Commandments monument will remain on the Capitol grounds.

Oklahoma Supreme Court Says 10 Commandments Monument Is Unconstitutional

In Prescott v. Oklahoma Capitol Preservation Commission, (OK Sup. Ct., June 30, 2015), the Oklahoma Supreme Court in a 7-2 decision held that a Ten Commandments Monument placed on the statehouse grounds must be removed. The Court held that even though no state funds were used to acquire the monument, it still operates for the use, benefit or support of a sect or system of religion in violation of Oklahoma Constitution Art. 2, Sec. 5. Rejecting the legislature's claim that the monument serves a non-religious historical purpose, the Court said: "the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths." (See prior related posting.)

Oklahoma Legislature Passes 2 Bills Protecting Clergy, Judges and Churches That Object To Same-Sex Marriage

The Oklahoma legislature this week gave final passage to HB 1007 (full text) protecting clergy and religious organizations that object to same-sex marriage.  The bill provides that clergy shall not be required to solemnize marriages that violate their conscience or religious beliefs.  Religious organizations shall not be required to provide religious-based services designed for engaged or married couples or couples where the services are directly related to solemnizing, celebrating, strengthening or promoting a marriage, such as religious counseling programs, courses, retreats and workshops, if doing so would violate the conscience or religious beliefs of an official of the organization.  Clergy and officials of religious organizations are immunized from civil liability for refusing to solemnize or furnish services for such marriages.

The legislature also gave final passage to SB 788 (full text) that (unless otherwise prohibited by law) protects judges who are authorized to perform marriages, as well as clergy, from being required to "perform or solemnize any marriage in violation of his or her right to the free exercise of religion guaranteed by the First Amendment to the United States Constitution." It also provides that no church or church-controlled organization shall be required to participate in a ceremony performing or solemnizing a marriage in violation of the church's or organization's religious beliefs.

Oklahoma AG Promotes Right of Schools To Have Neutral Policy Allowing Bible Distribution

As reported by Raw Story, on Friday attorneys for the Duncan, Oklahoma Public Schools responded (full text of letter) to an earlier letter from the Appignani Humanist Legal Center complaining that an elementary school teacher had offered Bibles to her students. The school system will advise teachers and administrators not to hand out Bibles or other religious material and not encourage students during class time to take religious materials from others.  It will stop any distributions of Bibles at elementary schools during school hours or immediately before or after, though reserves the right to permit distributions at high schools.

Meanwhile yesterday Oklahoma's Attorney General Scott Pruitt announced a new program "to defend religious freedom and provide support to Oklahoma schools facing intimidation. The assistance includes creating a statewide training program to equip superintendents, teachers, parents, school board members, and others to know their rights."  In a letter to school superintendents (full text) that focuses on complaints that had been made by the Freedom From Religion Foundation, Pruitt said in part:

Oklahomans do not need to live in fear that their government has become hostile to religion. Schools have a right to enact neutral policies that allow all viewpoints on religion to thrive. As the Attorney General of Oklahoma, I will not stand idly by while out-of-state organizations bully you or any other official in this State into restricting the religious freedom the Founders of this country held dear. 

Challenge To Oklahoma 10 Commandments Monument Dismissed On Standing Grounds

An Oklahoma federal district court yesterday dismissed an Establishment Clause challenge to the Ten Commandments Monument located on the grounds of the Oklahoma State Capitol.  In American Atheists, Inc. v. Thompson, (WD OK, March 10, 2015), the court held that the individual plaintiff in the case lacks standing because she saw the Monument only once before filing suit, and then only because she went looking for it -- apparently in order to create standing to sue. The standing of American Atheists, Inc. depends on the standing of the individual plaintiff who was a member. Reacting to the decision, Oklahoma state Attorney General Scott Pruitt said: "The historical relevance of the Ten Commandments and the role it played in the founding of our nation cannot be disputed. I commend Judge Cauthron’s decision to rule in the state’s favor." AP reports on the decision.

Proposed Oklahoma Bill Would Eliminate Marriage Licenses

Oklahoma State Representative Todd Russ has introduced a bill into the Oklahoma legislature that would create a unique response to federal decisions requiring the issuance of marriage licenses to same-sex couples.  As reported by KSWO News, his bill would do away with marriage licenses.  Instead, under HB 1125 couples may be married in a religious ceremony, after which the member of the clergy performing the ceremony would file a "certificate of marriage" with the clerk of court.  Individuals who do not want to be married in a religious ceremony could file an "affidavit of common law marriage" with the clerk of court. Under the bill, judges would no longer be able to perform marriage ceremonies. The bill retains current language limiting marriage to opposite-sex couples, even though the 10th Circuit has invalidated that limitation. (See prior posting.)  Rep. Russ sees the bill as restoring marriage "to what it was supposed to be and was originally a holy matrimony and a very solemn and spiritual vow."  Any progress of the bill through the legislature may be followed here.

Supreme Court Denies Cert. In Suit By Police Officer Who Refused To Attend Event At Mosque

The U.S. Supreme Court today denied certiorari in Fields v. Tulsa, Oklahoma, (Docket No. 14-323, cert. denied 12/1/2014). (Order List.)  In the case, the 10th Circuit rejected a free exercise claim brought by a Tulsa, Oklahoma police captain who was ordered to arrange for two officers and a supervisor to attend a police appreciation day held at the Islamic Society of Tulsa. (See prior posting.) News OK reports on the high court's action.

Oklahoma Legislator Will Replace Destroyed 10 Commandments Monument

As previously reported, last month a man, claiming to have been directed to do so by Satan, drove his car into the Ten Commandments monument on the Oklahoma State Capitol grounds.  KOCO today reports that Republican state legislator Mike Ritze who paid $10,000 for the monument says that he has ordered an identical new monument to replace the original that is beyond repair. Again the monument will be paid for by private funds. An Establishment Clause challenge to the original monument was rejected by an Oklahoma state trial court (see prior posting), and the case is now on appeal to the state Supreme Court.

Man Destroys Oklahoma Capitol Ten Commandments, Saying Satan Told Him To Do It

Yesterday the Oklahoma Highway Patrol took into custody a man who Thursday night ran his automobile into the Ten Commandments monument on the Oklahoma State Capitol grounds. The monument was broken into pieces. According to NewsOK, Michael Tate Reed, Jr. told authorities that Satan had directed him to urinate on the monument and destroy it. Reed was taken to a mental health facility for an emergency order of detention and an evaluation.  Last month, a state trial court dismissed an Establishment Clause challenge to the monument (see prior posting), and on Thursday the ACLU had filed an appeal to the state Supreme Court.  Commenting on Thursday's destruction of the monument, the Oklahoma ACLU executive director said: "Whether it is politicians using religion as a political tool or vandals desecrating religious symbols, neither are living up to the full promise of our founding documents." Oklahoma Governor Mary Fallin said she would help raise private funds to repair the monument. And a spokesman for a New York based Satanic Temple that had applied to add its own monument to the Oklahoma Capitol grounds (see prior posting) said: "If our monument stands at the state Capitol, we want it to complement and contrast the (Ten) Commandments, with both standing unmolested as a testament to American religious freedom and tolerance."

Oklahoma Trial Court Rejects Challenge To State Capitol Ten Commandments

AP reports that an Oklahoma state trial court has dismissed an Establishment Clause challenge to a Ten Commandments monument on Oklahoma State Capitol grounds. The court in Prescott v. Capitol Preservation Commission, (OK Cnty Dist. Ct., Sept. 19, 2014), held that the monument, which is on statehouse grounds that have 51 other monuments as well, held that "the Ten Commandments monument on the Oklahoma Capitol grounds is constitutional because of its historical value." According to AP:

The 6-foot-tall granite monument was authorized by the Legislature in 2009 and was erected in 2012 after Republican state Rep. Mike Ritze and his family paid nearly $10,000 for it. The monument's placement has led others to seek their own on the Capitol grounds, including a satanic group that earlier this year unveiled designs for a 7-foot-tall statue of Satan.

In a release reacting to the decision, the Oklahoma ACLU said:

We respectfully disagree with the decision of the court.... [I]t is offensive to [plaintiffs] that this sacred document has been hijacked by politicians. We will appeal this decision and ask the Oklahoma Supreme Court to find that the Oklahoma Constitution does not give the government the power to cheapen inherently religious texts.

(See prior related posting.) [Thanks to How Appealing for the lead.]

10th Circuit Wades Through Procedural Morass In Invalidating Part of Oklahoma's Same-Sex Marriage Provisions

The 10th Circuit last week, in a case generating 84 pages of opinions that focus extensively on procedural issues, struck down Oklahoma's ban on same-sex marriage, but dismissed for lack of standing the state's refusal to recognize same-sex marriages performed elsewhere.  The unusual posture of the case stemmed from the fact that the 10th Circuit had already struck down as violative of the 14th Amendment Utah's bans on same-sex sex marriage and Utah's ban on recognizing such marriages performed in other jurisdictions (see prior posting). So in Bishop v. Smith, (10th Cir., July 18, 2014), the question was whether anything distinguished the challenge to Oklahoma's laws from the already decided challenge to Utah's.

In a portion of the opinion that all 3 judges agreed to, the court held that the couple challenging Oklahoma's non-recognition provisions lacked standing because the only defendant in the case, the Clerk of Court for Tulsa County, has nothing to do with recognizing or not recognizing a marriage performed elsewhere. The majority, however, held that Oklahoma's ban on granting licences for same-sex marriages performed in the state is unconstitutional, as was Utah's similar ban. The majority's conclusion was not undermined by the fact that plaintiffs had challenged only Oklahoma's constitutional ban on same-sex marriage, and not the parallel statutory ban as well. The majority stayed their mandate pending disposition of any petition for certiorari that is filed with the Supreme Court.

Judge Holmes wrote a 27 page concurring opinion explaining why the district court had been correct in not relying on the "animus" theory in striking down Oklahoma's ban on marriage equality. Judge Kelley dissented in part, arguing that the couple challenging the ban on in-state same-sex marriages also lacked standing because they challenged only the state constitutional ban and not the parallel statutory prohibition.  Judge Kelley also disagreed on the merits, contending that "Same-gender marriage is a public policy choice for the states, and should not be
driven by a uniform, judge-made fundamental rights analysis." Scotus Blog reports on the decision.

Meanwhile, the U.S. Supreme Court last week issued an order (full text) in Herbert v. Evans, staying pending appeal to the 10th Circuit the district court's preliminary injunction requiring Utah to recognize same-sex marriages performed during the gap period before a district court's order was stayed. (See prior posting.) Here is the petition to Justice Sotomayor requesting the stay.

Challenge To Oklahoma 10 Commandments Monument Can Move Forward

In American Atheists, Inc. v. Thompson, (WD OK, May 22, 2014), an Oklahoma federal district court refused to dismiss an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Oklahoma state capitol. Even though the monument is identical physically to the one upheld in 2005 by the U.S. Supreme Court in Van Orden v. Perry, the court said that the physical setting and context in which it is displayed is different.  The court also refused to dismiss plaintiffs' claim that the monument and the state's moratorium on other monuments violates the Equal Protection clause.  The court however did dismiss one of the several plaintiffs for lack of standing. An American Atheists press release has more background.

10th Circuit OK's Discipline of Police Officer Who Refused Order On Attendance At Mosque's Police Appreciation Event

In Fields v. City of Tulsa, (10th Cir., May 22, 2014), the U.S. 10th Circuit Court of Appeals dismissed a civil rights complaint filed by Tulsa, Oklahoma police captain Paul Fields who refused to comply with an order requiring him to arrange for two officers and a supervisor from his shift to attend a law enforcement appreciation day held at the Islamic Society of Tulsa. Fields objected that the order required him to enter a Mosque.  The department suspended Fields for 10 days without pay and transferred him to a less attractive shift because of his refusal. Fields sued, claiming violations of the free exercise clause, establishment clause, his right to freedom of association and the equal protection clause.  The court rejected all of these claims. The court held there was no free exercise violation because Fields wan not personally required to attend under the order. The event was a thank you from the Islamic community to the police department and did not require anyone to participate in religious activities. Tours of the mosque and discussions of Islam at the event were purely voluntary.

The court also upheld the refusal to allow Fields to amend his complaint to allege retaliation for filing the lawsuit in violation of his free speech rights. It concluded that the police department had a compelling interest that outweighed any restriction on speech. The Tulsa World reports that Fields lawyer says he will seek en banc review of the decision.

Christian Student Challenges University's Speech Code

A lawsuit was filed last week in an Oklahoma federal district court challenging the Expressive Activity Policy and Equal Opportunity Policy of Cameron University, a public university in Lawton, Oklahoma.  The complaint (full text) in Harper v. McArthur, (WD OK, filed 5/14/2014), alleges that Daniel Harper, an evangelical Christian student at the University, was prevented from handing out a flyer criticizing the beliefs of a student organization, the World Mission Society. The university claims that Harper's flyer violates the university's prohibition on "offensive" and "discriminatory" speech.  It allows literature to be handed out on campus only if it is from a student organization and has been approved for distribution by the University. The suit claims that the University speech code violates the 1st and 14th Amendments as well as the Oklahoma Religious Freedom Act. Alliance Defending Freedom announced the filing of the lawsuit.

Oklahoma Must Pay $304,000 In Plaintiffs' Attorneys Fees In Anti-Sharia Law Case

An Oklahoma federal district court last week (May 14) ordered members of the Oklahoma State Election Board to pay $304,000 in attorneys' fees and costs to plaintiffs in Awad v. Ziriax. (Full text of order.) In the case, plaintiffs successfully prevented the Election Board from certifying voter approval of an anti-Sharia state constitutional amendment. (See prior posting.)  The Oklahoman reports on the order.

10th Circuit Hears Oral Arguments In Oklahoma Same-Sex Marriage Case

As reported by the Los Angeles Times, the U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in  Bishop v. Smith.  An audio recording of the full oral arguments is available from the court's website. In the case, an Oklahoma federal district court held that the provision in the Oklahoma constitution barring same-sex marriage in the state violates the equal protection clause of the 14th Amendment.  The same 10th Circuit panel heard arguments last week in a case challenging Utah's same-sex marriage ban. (See prior posting.)