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Civil Disobedience in the Statehouse?

September 2015

By: James C. Milton

Despite occasional challenges, our constitutional system has lasted longer than most. Our Constitution provides substantive rights and limitations upon governments and actions. But importantly, our Constitution provides a roadmap showing, procedurally, how to resolve disagreements over those rights and limitations.

We can disagree over what the Constitution says about our rights. We can challenge governmental action and assert our rights in court. But once those disagreements are fully resolved, we must act accordingly. If we decline to follow the rules in our constitutional system, we suffer the consequences. For example, a citizen may engage in civil disobedience, decline to follow a particular rule, suffer the consequences, and bring attention to the perceived injustice.

But what happens if a governmental official declines to follow a rule adopted pursuant to constitutional procedures? This cannot be viewed as civil disobedience. Our public officials must abide by their oaths to uphold the law. Public officials must follow the law or step aside. A governmental official's disobedience of a lawful and final order is viewed as abuse of office or abuse of power. The consequences may include contempt of court, as in the case of Rowan County, Kentucky clerk Kim Davis.

We could see the same type of public drama in Oklahoma. We could face a constitutional crisis if our state government refuses to abide by the Oklahoma Supreme Court's ruling on the Ten Commandments monument. But we aren't there yet.

The Oklahoma Capitol Preservation Authority may continue to litigate the issue in the trial court until the court issues a final ruling. The Supreme Court issued its mandate on August 27. The trial court ordered a "final status conference" for September 11, directing the parties to be prepared to discuss the entry of a final order. The Authority filed a motion to amend its answer on September 3, indicating that the Attorney General plans to continue the legal battle.

This continued legal battle is not contempt of court, nor is it a constitutional crisis. In fact, we can anticipate at least one more appeal to the Oklahoma Supreme Court before the Authority faces the type of finality that would result in contempt of court. The Authority might yet file an appeal with the U.S. Supreme Court. 

At some point, though, the Authority will exhaust all appellate remedies. At that point, we can anticipate that the Ten Commandments monument will be removed. While some of us may wish to see the monument remain, we can take comfort in the longstanding stability of our constitutional system.