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Friday, August 18th, 2017Last Update: Tuesday, August 1st, 2017 01:57:38 PM

Repeal of Blaine Amendment is a Band-Aid Approach

By: Steve Byas

Quote: “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.”

These are the words found in Article II, Section 5 of the state Constitution used by the Oklahoma Supreme Court in its judgment against the Ten Commandments monument found on the Capitol grounds. Many rightly argue that this provision did not require the removal of the Ten Commandments monument, and the Court got it wrong. It seems that the best solution is to get some judges that will correctly interpret the Constitution.

State Question 790 proposes to simply remove this language from the state Constitution instead.

This proposal is like placing a band-aid to stop the bleeding from an artery. The problem is not with this provision in the state Constitution, but rather with the justices of our Oklahoma Supreme Court who mistakenly believed a Ten Commandment monument on the Capitol grounds violated it. Since those who want to excise this portion of our state Constitution have thus mis-diagnosed the problem, it is my contention they have offered a solution that is wholly inadequate.

So what is the deeper problem?

Our present system of choosing appellate court judges in Oklahoma hands far too much power to the bar association, a notoriously liberal organization. This system was created in the aftermath of the judicial scandals of the 1960s, when multiple members of the Supreme Court were removed from office, or convicted of taking bribes, and the like. Bad deal, for sure.

The judges were elected at that time, so advocates of a new system argued that the solution was to remove their selection from the voters of the state. In its place was created a “Judicial Nominating Commission,” composed of various individuals, but the bottom line is that it is a system dominated by lawyers. This Commission takes applicants for open positions on the Supreme Court, the Court of Civil Appeals, and the Court of Criminal Appeals, and sends three names to the governor for an appointment to a six-year term, whenever one of those three courts has a vacancy.

At the end of the six years, the judge can file for another six-year term, and place himself before the voters in a simple retention ballot. No one “runs” against him. If more voters vote no to his retention, he is removed from office. But in the almost 50 years since this system was put into place, no judges have ever been removed in this manner. In other words, this provision is just a “scarecrow.”

And the result is that you get decisions in which these liberal judges strike down laws designed to restrict abortion, or decisions which say Article II, Section 5 of the state Constitution was intended to keep a Ten Commandments monument off the grounds of the Capitol. So the solution is simple. Give the power to appoint appellate court judges over to the governor, subject to approval of the state Senate. The Judicial Nominating Commission can be retained to review potential nominees, but it should be left to the governor to make the decision, not some unelected body choosing unelected judges.

Opponents of going to this system protest that we had corruption in the Supreme Court back in the 1960s, under the old system. So? Governor David Hall was indicted less than a week after leaving office in 1975, and sent to federal prison. We have had two other governors impeached and removed from office. They were all elected by the people. Should we have a Governor Nominating Convention made up of lawyers to select governors? And, we have had multiple legislators run afoul of the law. Should we take the right of the people to elect their legislators away, as well?

I am not asking for a system in which judges have to kiss babies and give speeches to get elected. But what is wrong with an elected official (the governor) nominating a judge subject to confirmation by the elected state Senate?

It amazes me when I hear folks who have figured out that we do not need a national constitutional convention to correct bad decisions by federal judges turn around and argue that we need to eliminate a provision of the state Constitution (with no replacement) because state judges have likewise misinterpreted it.

I would oppose the state of Oklahoma establishing an official state church. Maybe that is just the Baptist in me, for the Baptists have historically fought against such things, whether it was Catholic, Presbyterian, Congregational, or the Church of England. I certainly do not think a Ten Commandments monument on the grounds of the Capitol establishes a religion any more than erecting a statement by the Roman Senator Cicero establishes the government of the old Roman Republic.

One well-meaning senator said, “The Blaine amendment [the name given to Oklahoma’s Article II, Section 5, although it is actually a milder form of the actual Blaine Amendment] represented an effort to suppress Catholic education while allowing state funding of Protestant-oriented schools. Many Oklahomans felt the amendment never should have applied to the Ten Commandments Monument case, and have expressed dismay such a discriminatory provision was still in our Constitution.”

Really? If the amendment should have never applied to the Ten Commandments Monument case, then why remove it? And, it should also be noted that what he meant by state funding of Protestant-oriented schools was not actual Methodist, or Baptist, or Presbyterian schools, but public schools. In 1907, when Oklahoma became a state, it could be fairly stated that public schools were somewhat “Protestant-oriented.” But, I know of no person who would contend that our public schools today are “Protestant-oriented.”

So, Catholics, you have nothing to worry about!

But, everyone, Protestants and Catholics alike, have plenty to worry about until we abolish the Judicial Nominating Commission.

Unless we want to continue to delete portions of the state Constitution so as to continue to put a band-aid on the deeper problem.

About Steve Byas

Steve Byas is editor of the Oklahoma Constitution newspaper. He may be contacted at: byassteve@yahoo.com

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