Jesus is just alright with Oklahoma

By Tom Wolfe | Phillips Murrah P.C. | The Journal Record

[ MAY 21, 2009 – OKLAHOMA CITY, OK ] - As Moses descended Mt. Sinai, two stone tablets in tow, he was heard to sing with no lack of enthusiasm, "Jesus is just alright with me," thus prophesizing not only the First coming but also the rock fame of The Doobie Brothers. What he likely did not foresee was that those stone tablets containing the Ten Commandments would lead to yet another controversy, years later, in Oklahoma.

Passed on Monday by our state's Legislature and signed into law by the governor is a measure to erect a monument containing the Ten Commandments on the grounds of the state Capitol. So, what's the problem? Well, the problem is the First Amendment to the U.S. Constitution, found in the Bill of Rights, which promises, "Congress hall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…"

Much like music lyrics, the First Amendment proscription against "the establishment of religion" has been interpreted in various ways. However, in 1994, the U.S. Supreme Court opined that "government should not prefer one religion to another, or religion to irreligion." In other words, secularity is required of our government by commandments of the Constitution in much the same way that killing is prohibited by the Ten Commandments.

So, does placement of a monument enumerating the Ten Commandments on the grounds of the Oklahoma Capitol show preference for Christianity over other religions, or no religion at all?

Proponents of the new law claim the Ten Commandments are of historical significance – as opposed to exclusively religious – because they provide the historical foundation of the system of laws set forth by our founding founders. Opponents say that no matter how you cut it, placement of the proposed monument is a clear endorsement of Christianity over other religions, or no religion at all.

Not surprisingly, this issue has been considered numerous times over the years by the U.S. Supreme Court. In a well-publicized Texas case, the nation's highest court allowed a Ten Commandments monument to stand at the Texas state Capitol; however, it is important to note that the monument stood not alone but among many other historical markers. On the other hand, that same court – on that same day – found the display of the Ten Commandments inside certain Kentucky courthouses to be unconstitutional, in violation of the First Amendment. The Justices drew a distinction between exhibits who main purpose was to draw attention to legal, as opposed to religious, history and issues.

You might recall a throw-down a few years ago, when the chief justice of the Alabama Supreme Court refused to comply with an order from a federal court to remove a 5,000-pound granite monument of the Ten Commandments from Alabama's Supreme Court. For his defiance, the chief judge was removed from office, and the Ten Commandments monument was removed from the courthouse.

Oklahoma's current legislative session comes to an end Friday. Much significant work has been done, including, apparently a comprehensive civil justice bill. When placement of a Ten Commandments monument at the state Capitol falls on the list of issues that require legislative and gubernatorial attention is in the eye of the beholder. But, like a fence dispute between neighbors, sometimes legal wrangling arouses great passion and brings out the worst in people. Moses should have seen it coming.

Tom Wolfe is a civil litigator who serves as president and managing partner of Phillips Murrah P.C. in Oklahoma City.