PRESCOTT v. OKLAHOMA CAPITOL PRESERVATION COMMISSION

COMBS, V.C.J.,

dissenting to denial of rehearing.

T1 I dissent to the denial of rehearing in the above styled matter.1 The Appellee requested a rehearing to clarify2 the Per Cu-riam opinion in light of our previous decisions wherein we upheld the constitutionality of various acts under an Okla. Const. art. 2, § 5 *1054challenge. The Per Curiam opinion's strict reading of Okla. Const. art. 2, § 5 ignores the context-based analysis we used in Meyer v. Oklahoma City, 1972 OK 45, 496 P.2d 789, and does not overrule that opinion. The Appellee's need for clarification is apparent.

{ 2 The framers of the Oklahoma Constitution, although having strong views behind the creation of Okla. Const. art. 2, § 5 did not believe its provisions prohibited government acknowledgement of religion. Indeed, the first words of the Preamble to the Oklahoma Constitution state "invoking the guidance of Almighty God, in order to secure and perpetuate the blessing of liberty." This Court has previously determined, "[it is not the exposure to religious influence that is to be avoided; it is the adoption of sectarian principles or the monetary support of one or several or all sects that the state must not do." Murrow Indian Orphans Home v. Childers, 1946 OK 187, ¶ 7, 171 P.2d 600. I do not believe the intent or effect behind this Ten Commandments Monument ("Monument") was for the adoption of sectarian principles, My belief is based not only on our context-based analysis in Meyer3 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.

13 In its petition for rehearing, the Ap-pellee asserts federal Establishment Clause precedent is relevant to this case.4 I agree. The long and evolved federal jurisprudence concerning alleged unconstitutional monuments and displays is informative and persuasive in determining the meaning of "support" a "system of religion" in our own constitution. 5

14 At the hearing on summary judgment the district court used an "objective standard" in finding the Monument did not violate Okla. Const. art, 2, § 5.6 The attorney for the Appellant believed at the hearing that this was the proper standard; however, he appears to have interpreted the standard differently than the court.7 This objective standard evaluates whether or not a reasonable observer, aware of the history and context of the community in which the conduct occurs, would view the government action as having a principle or primary effect of advancing or endorsing religion, or as here, government support of a system(s) of religion. See Bauchman for Bauchman v. West High School, 132 F.3d 542, 551-52, 555 (10th Cir.1997). This reasonable observer is an informed reasonable observer whose knowledge of the context surrounding the alleged offending display goes outside just observing the display itself.8 It is a legal standard akin to the reasonable person standard in tort law 9 and does not require a court to review endless testimony of opinion from actual observers.10

15 In religious symbols cases, context is the touchstone. Glassroth v. Moore, 335 *1055F.3d 1282, 1284 (11th Cir.2003). This is the case not only in federal Establishment Clause jurisprudence but also in our own jurisprudence. In Meyer v. Oklahoma City, 1972 OK 45, ¶ 11, 496 P.2d 789, a 50-foot Latin Cross which was placed on city property and whose lighting was provided by the city was challenged for violating Okla. Const. art. 2, § 5. This Court determined the cross did not violate Okla. Const. art. 2, § 5 because the commercial setting and atmosphere of the Fair Grounds obscured any suggestions that might emanate from the cross gllent form and further "stultify its symbolism and vitiate any use, benefit or support for any sect, church, denomination, system of religion or sectarian institution...." Our holding in Meyer can best be interpreted as holding in Okla. Const. art. 2, § 5 cases the predominant context surrounding the challenged government action is dispositive. This is similar to the approach used in 2005 by Justice Breyer in determining the predominant context surrounding the Ten Commandments monument in Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005).

1 6 In Van Orden, the constitutionality of a Ten Commandments monument on the Texas Capitol grounds was challenged as violating the Establishment Clause of the United States Constitution. Justice Breyer wrote the controlling opinion for the Court.11 Justice Breyer believed that even though the Ten Commandments had an undeniable religious message, focusing on its text alone could not conclusively resolve the case. Id. at 701, 125 S.Ct. 2854. He determined in order to resolve what the text of the message conveyed, the proper inquiry required the Court to "examine how the text is used" by considering the context of the display. Id. He found the text of the Ten Commandments can also be used in a secular way to convey a general moral message about proper social conduct or in a historical way to show a relation between its standards and the law. The latter he believed is why so many courthouses throughout the Nation, including the Supreme Court, displayed the tablets in some form. He determined the circumstances surrounding the monument's placement at the Texas Capitol and its physical setting suggested the State intended its seeu-lar message to predominate. Id.

17 Title 74 O.S.2011, § 4110 (HB 1330) proclaimed the Monument was not meant to be construed to favor any particular religion or denomination over others and it was essentially just another monument on the Capitol grounds.12 In federal jurisprudence, the courts have deferred to the professed government purpose unless the secular purpose is a sham or secondary to a religious purpose.13 Where a "plausible secular purpose" has been demonstrated, the courts will give deference to the government's motives." *1056The record is also silent as to any contravening sectarian purpose behind the Monument's placement. 14

T8 The Appellants expressly stated they were not challenging the constitutionality of HB 1330. The Appellants are challenging the actions of the Appellee, Under federal jurisprudence, "whether the government has endorsed a particular religious display depends in large part on the display's particular physical setting." O'Connor v. Washburn University, 416 F.3d 1216, 1228 (10th Cir.2005) (citing Lynch v. Donnelly, 465 U.S. 668, 671, 681-82, 685, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)), The Appellants assert, ed the Appellee's placement and positioning of the Monument puts it in a prominent position leading one to conclude it represents State support of a system(s) of religion, The question being, regardless of purpose or intent, was the placement and positioning of the Monument done in such a way that an informed reasonable observer would conclude it represents State support of a system(s) of religion? It appears from the record that the Monument was placed in possibly the most inconvenient and low-trafficked part of the Capitol grounds imaginable, Its placement on the northeast side of the Capitol Building makes it impossible to view from the main parking lot or any entrance to the building. The main parking lot and main entrance are on the south side of the Capitol Building with the other two working entrances being on the east and west sides,. Because of this placement, a person inside the Capitol Building should only be able to see the Monument through some of the windows on the east side of the north wing and the north side of the east wing. Next to the Monument is a short stairway that leads to the north entrance of the Capitol and is the only entrance on that side of the building. However, this nearby north entrance has, been closed for many years, 'The Monument sits at the top and to the east of the stairway. The closest route from the Capitol Building to the Monument requires one to leave the east or west side doors and walk a quarter of the way around the large building. Nor does its placement provide accommodation for meditation or other religious activity. I do not believe an informed reasonable observer seeing the Monument would find that its placement or positioning rises to the level of being sacred or is in any way more unique than the placement of any of the many other monuments on the Capitol grounds including the few that reside on the north side,

T9 Nor do I believe that the Monument's content leads an informed reasonable observer to conclude it supports a system(s) of religion as asserted by the Appellants. The message on the Monument's face is not the full story. What a reasonable observer is aware of "is not limited to the 'information gleaned simply from viewing the challenged display" " O'Connor v. Washburn University, 416 F.3d 1216, 1228 (citing Wells v. City & County of Denver, 257 F.3d 1132, 1142-43 (10th Cir.2001)). I agree with the reasoning of Justice Breyer in Van Orden, who found that the text of the Ten Commandments was religious "invoking, indeed emphasizing, the Deity," yet he determined that fact alone was not dispositive. Van Orden v. Perry, 545 U.S. 677, 700-701, 125 S.Ct. 2854, 162 L.Ed.2d 607 (Breyer, J., concurring). One must review the surrounding context. Here, the surrounding context also takes into account the plausible secular historical/legal purpose of the Legislature. In addition, the Monument includes an inscription showing it was privately donated. Such message further distances the State from the Monument in the mind of a reasonable observer. See Card v. City of Everett, 520 F.3d 1009, 1020 (9th Cir.2008).

10 The Appellants also asserted the fact that the Monument was not made part of a larger display or coordinated series of monuments only adds to the effect that the State was adopting sectarian principles, I disagree. I do not find the spacing or density of monuments is indicative here of an adoption of sectarian principles. The monuments spread throughout the Oklahoma Capitol Complex appear not to be part of any particular spacing scheme or planned density. As the court in Card v. City of Everett, 520 F.3d 1009, 1020 (9th Cir.2008) determined in its context analysis, there is no "quota system for monuments or a requirement for a particular density of monuments in a given area." It should be noted that in Meyer there was *1057only one monument and it was found to be constitutional by this Court.

4 11 Although initially raised on appeal in the Appellee's answer brief, on rehearing the parties did not brief the issue of whether Okla. Const. art. 2, § 5 is a state Blaine Amendment; however, other Justices of this Court have addressed this issue, The Blaine Amendment was a failed 1870's proposed amendment to the United States Constitution to bar aid to sectarian institutions. Mitchell v. Helms, 530 U.S. 793, 828, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000). The proposed amendment "arose at a time of pervasive hostility to the Catholic Church. and it was an open secret that 'sectarian' was code for 'Catholic ". Mitchell, 530 U.S. at 828, 120 S.Ct. 2530. This amendment would have applied almost exelusively to Catholic parochial schools. Id. at 829. The Appellee had previously cited a 2008 law review article written by Mark E. DeForrest, for the purpose of demonstrating, after the Blaine Amendment's failure, states adopted similar provisions in their own constitutions.15

¶ 12 The parties have not cited any deci-gion of this Court where we have referred to Okla, Const. art. 2, § 5 as an Oklahoma version of the Blaine Amendment or construed it so narrowly to only apply to sectarian institutions, or in other words, parochial schools. On this issue I would agree with the other Justices of this Court that Okla. Const. art. 2, § 5 is not Oklahoma's version of a Blaine Amendment. The breadth and seope of Okla. Const. art. 2, § 5 differ significantly from the failed Blaine Amendment.

18 In conclusion, I disagree with the Per Curiam opinion's overly narrow interpretation of the language in Okla. Const. art. 2, § 5. Since statehood this Court has interpreted our Constitution I do not adopt the strict approach taken by other members of this Court in determining the meaning behind "support" of a "system of religion". Additionally, I would limit findings to the record before the court on issues presented by the parties. I find the appropriate analysis of Okla, Const. art. 2 § 5 is a context-based analysis like that used by this Court in Meyer and found in federal jurisprudence. We should not lightly attribute unconstitutional motives to the government where we can discern a plausible secular purpose. I am of the opinion the facts of this case have more similarities to Van Orden than not. However, as Justice Breyer believed in Van Orden, I believe this case is a borderline case. -A slight change in its facts could have tipped my view concerning the effect the Monument conveyed upon a reasonable observer, Today our State is composed of many different religious beliefs and many persons of no religion. Wisdom, prudence and caution should be at the forefront when considering the placement of displays on government property. However, for the foregoing reasons, I dissent to the denial of the petition for rehearing.

. I would also restyle the case and set out Donald Chabot as a plaintiff only and not as an appellant. According to the Brief of Plaintiffs/Appellants, filed March 16, 2015, Mr. Chabot died prior to the district court's ruling and is not an appellant in this case,

. Tomahawk Resources, Inc. v. Craven, 2005 OK 82, supp. op. ¶ 1, 130 P.3d 222.

Generally, rehearing is granted: (1) to correct an error or omission, see Sooner Federal Savings and Loan Ass'n v. Mobley, 1981 OK 124, supp. op. ¶¶ 1-11, 645 P.2d 1000, 1003-04; Davis v. Fieker, 1997 OK 156, supp. op. ¶ 1, 952 P.2d 505, 516-17; Sharp v. Tulsa, 1994 OK 104 supp. op. ¶ 3, 890 P.2d 836, 846; I.C. Gas Amcana, Inc. v. Hood, 1992 OK 119, supp. op. ¶ 2, 855 P.2d 597, 601; (2) to address an unresolved jurisdictional issue, see Sholer v. State ex rel. Dept. of Pub. Safety, 1995 OK 150, supp. op. ¶ 3, 945 P.2d 469, 478; or (3) to clarify the opinion, see City of Oklahoma City v. State ex rel. Okla. Dept. of Labor, 1995 OK 107, supp. op. ¶ 1, 918 P.2d 26, 31. Rehearing is not for rearguing a question which has been previously presented and fully considered by this Court. See Draper v. State, 1980 OK 117, supp. op. ¶¶ 1-2, 621 P.2d 1142, 1147. Likewise, it is not for presenting points which the losing party overlooked, misapprehended, or failed to fully address.

. In Meyer v. Oklahoma City, 1972 OK 45, 496 P.2d 789, this Court upheld the constitutionality of a 50-foot cross on city property which was lit by electricity funded by the city and whose facts are arguably more offensive to the provisions of Okla. Const. art. 2, § 5, than the facts presented in this case.

. The Establishment Clause of the United States Constitution (U.S. Const. amend. 1), provides in pertinent part: "[clongress shall make no law respecting an establishment of religion."

. The Plaintiffs/Appellants allege the Monument supports a system of religion in violation of Okla. Const. art. 2, § 5. This section provides:

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,

. ROA, Doc. 15, p. 7-8 (Transcript of Proceedings held on September 19, 2014). The transcript provides that when the district judge asked plaintiffs' attorney, Mr. Henderson, whether the plaintiff s' position is the court should use an objective standard, Mr. Henderson replied, "I believe so, Your Honor, but I think it's also an objective standard that's informed by the observations of those people directly observing the monument."

. Id.

. What a reasonable observer is aware of ""is not limited to the 'information gleaned simply from viewing the challenged display." O'Connor v. Washburn University, 416 F.3d 1216, 1228 (10th Cir.2005) (quoting Wells v. City & County of Denver, 257 F.3d 1132, 1142-43 (10th Cir.2001)).

. Gaylor v. U.S., 74 F.3d 214, 217 (10th Cir.1996).

. - In Gaylor, the Court found the application of the reasonable observer standard explained why *1055it was rejecting the appellants' insistence on further fact-finding at the trial court level. It determined:

We need not engage in such empirical investigation because 'we do not ask whether there is any person who could find an endorsement of religion, whether some people may be offended by the display, or whether some reasonable person might think [the State] endorses religion. - [The endorsement inquiry is not about the perceptions of particular individuals or saving isolated non-adherents from the discomfort of viewing symbols of faith to which they do not subscribe.' It is instead an objective inquiry that this court is fully equipped to conduct with the facts at hand.

Gaylor, 74 F.3d at 217. (Internal citations omitted).

. In Green v. Haskell County Board of Comm'rs, 568 F.3d 784, 807 n. 17 (10th Cir.2009), the Court noted:

Given that Van Orden was decided by a plurality, the separate opinion of Justice Breyer, who supplied the "decisive fifth vote," Heideman v. S. Salt Lake City, 348 F.3d 1182, 1198 (10th Cir.2003), is controlling under the rule of Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) ("When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.").

. Subsection D of Section 2 of House Bill 1330 provided:

The placement of this monument shall not be construed to mean the State of Oklahoma favors any particular religion or denomination thereof over others, but rather will be placed on the Capitol grounds where there are numerous other monuments.
2009 Okla. Sess. Laws ch. 204, § 2.

. Weinbaum v. City of Las Cruces, N.M., 541 F.3d 1017, 1031 (10th Cir.2008).

. Id. (citing Bauchman for Bauchman v. West High School, 132 F.3d 542, 554 (10th Cir.1997).

, Mark E. DeForrest, An Overview and Evaluation of State Blaine Amendments Origins, Scope, And First Amendment Concerns, 26 Harv. J.L. & Pub. Pol'y 551 (2003). Mr, DeForrest also presented an Amicus Curiae Brief to both this Court and the district court in the present case discussing the Blaine Amendment and the Alleged state ~- adoption of such provisions.