THIS week I wrote about a battle over religious monuments in Oklahoma City (great town, by the way—vastly underrated). The short version: in 2009 Oklahoma's legislature passed a bill authorising the placement of a monumental version of the Ten Commandments on the grounds of the state capitol building. The bill specifically stated that the monument be modelled after one in Texas that the Supreme Court found constitutional in a 2005 case called Van Orden v Perry—a nice shot across the bow from the bill's sponsor, Mike Ritze, in advance of the inevitable constitutional challenge.
That challenge came last year, courtesy of the Oklahoma chapter of the ACLU. They did something very clever: instead of suing in federal court and claiming an Establishment Clause violation, they sued in state court, and asserted that a religious monument on public property violates a section of the Oklahoma constitution, which is far more strongly worded than the federal version. The state constitution says: "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." The case remains in pre-trial litigation; I believe discovery has not yet started. The two sides will likely file for summary judgment early next year (there is no factual dispute to hash out in court), and I don't want to hazard a guess on the outcome.

Yet in addition to the ACLU's challenge, earlier this month the Satanic Temple, a New York-based outfit, said they too would like to donate a monument to be placed on state grounds. The logic is sound: if Oklahoma wants to put privately-donated religious monuments on state grounds, it should not be allowed to prefer one faith to another. Here I will hazard a guess: Oklahoma will not allow a monument to Satan on its statehouse grounds, no matter how "public-friendly", regardless of the Temple's desire to make it "an object of play for young children."
For better or worse, Oklahoma has constitutional backing for both decisions. In Van Orden v Perry, the court ruled that "the Ten Commandments have an undeniable historical meaning", and that "simply having religious content or promoting a message consistent with religious doctrine does not run afoul of the Establishment Clause." It also held that the placement of the Ten Commandments matters: you can't put them in classrooms, but putting them on the capitol grounds "is a far more passive use", and therefore acceptable. That was a narrow 5-4 ruling, but Stephen Breyer sided with the majority, and Sandra Day O'Connor, one of the nays, has been replaced by Samuel Alito, who is likely to side with Oklahoma. In rejecting the Satanic Temple's offer, Oklahoma can cite Pleasant Grove v Summum. There the court unanimously ruled in 2008 that just because a municipality displays one religious monument—as it happens, the monument at issue was of the Ten Commandments—does not mean it must display monuments donated by other faiths, such as Summum, or indeed Satanism
Those two cases are about as on point as anyone could hope for. Unfortunately, taken together they render the Establishment Clause utterly hollow. As the much-missed John Paul Stevens notes in his Van Orden dissent, the purpose of Ten Commandments monuments is to proclaim that "[t]his State endorses the divine code of the 'Judeo-Christian' God." Among America's earliest European inhabitants were Christians fleeing religious persecution; thus, any Christian monument could be said to have "an undeniable historical meaning", and so by Van Orden's logic be acceptable. But monuments to Islam, Buddhism or Hinduism? Sorry; Pleasant Grove says we don't have to. This is an end-run around Jefferson's "wall of separation". It simply cannot be what the Founders envisioned or intended.