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State Supreme Court Makes Another Good Decision

Fracking In Karnes County by Sean Paul Kelley on Flickr The Commons

The fallout from the Ten Commandments monument controversy at the state Capitol dominated local news here last week, but another Oklahoma Supreme Court decision was just as important in a far more practical sense.

The court, which decided the monument was in violation of the state constitution and must be removed from the Capitol grounds, also decided people could sue energy-related companies for damages they believe are related to the fracking process.

According to media reports, some people in the oil and gas industry wanted the Oklahoma Corporation Commission to handle such cases, but the court correctly upheld the basic concept of tort law, which allows people the basic right to sue for damages in district courts.

Like the Ten Commandments monument case, which rested on the clear church-state separation language of Article 2, Section 5 in the constitution, this case was another no-brainer, although it didn’t create quite the same overreaction by conservatives. Maybe some of those same conservatives have had their homes consistently rattled on an almost daily basis for a few years now.

The case specifically allows Sandra Ladra to proceed with a lawsuit against two Oklahoma energy companies. Ladra’s house was damaged and she was injured in a Nov. 5, 2011 earthquake in Prague that registered at 5.6. Scientists have been arguing for months now that the dramatic surge in earthquakes here is related to wastewater disposal wells used in fracking.

In the frackng process, water laced with chemicals is injected by high pressure underground to create fissures in rock formations. These fissures release fossil fuels. The wastewater is then injected back into the ground. These injection wells and the wastewater process are what scientists say are causing the dramatic surge in earthquakes.

The decision, as I mentioned, is an important one. It’s highly unlikely oil and gas companies will want to take responsibility for the earthquakes, which could lead to damage claim payouts. But Ladra’s case and perhaps future class action lawsuits could put pressure on energy companies to do more to try to prevent earthquakes because it threatens their bottom line.

Oklahoma has seen a tremendous surge in felt earthquakes, from just a few a year to hundreds of 3.0-magnitude or above. It’s not unusual these days in central Oklahoma to feel several earthquakes in one day. Oklahoma now leads the contiguous United States, including California, in 3.0 or above earthquakes. The spike in earthquakes has paralleled the horizontal well and fracking boom here.

The earthquakes in central Oklahoma have concerned many homeowners who are worried the constant shaking of their homes could lead to damage to their foundations, cracks in brick walls, the destruction of fireplaces or other structural problems. Many people seem concerned as well that the area could experience a larger earthquake, say in the 6.0 or above range, centered near a heavily populated area that could lead to injuries or even deaths.

It’s quite possible that lawsuits are the best last resort at this point unless the oil and gas industry takes responsibility. The problem is, of course, documenting building damage and determining if it came from earthquakes or not. That can be difficult unless the damage comes from a larger quake rather than a series of smaller ones.

There remains, as well, the question of home values in central Oklahoma and the impact of the earthquake problem on them. I anxiously sat through four or five earthquakes in my house that came in a series a couple of weeks ago. One was a 4.0-magnitude. That’s become normal here, and it certainly can’t help increase home values.

A lot of the earthquakes strike near Edmond, an extremely conservative suburban city of some 87,000 people and one of the wealthiest in the state. This pits fiscal Republicans and social conservative Republicans against the GOP rhetoric of “drill, baby, drill” or “American energy independence.”

Unless there’s a major decrease in seismic activity before the 2016 general election, the earthquake issue here is sure to be one of the election’s most contentious issues. Will conservatives, worried about their homes, join with environmentalists to elect politicians who will stand up to the oil and gas industry? Wishful thinking? Perhaps. But a major earthquake could change all that in just a few seconds.

Planksy Offers Up Holiday Sparklers, Sharklers

planksysanimals

Arrrrr! Count ‘em, mates, that’s yer five “r” arr, and this is none other than Planksy, yer favorite pirate turkey sailin’ in on water galore in this lake, err, state called Oklahoma. Me rum barrel is ready rain or shine this beauty of a Fourth of July, lads and lasses. Me grog cup awaits a fillin’. Fiddles? Hornpipes? Check. Matey. Arrr. Yer know what happens next. No, no, matey, not an earthquake or a flash flood. Aye, it's time to give out this year’s sparklers and sharklers. If yer done good, yer get yer flashy sparklers aboard ship with a sip or seventeen out of me special Planksy Reserve rum barrel. If yer done bad, then yer a landlubbery bilge rat, awarded the sharklers right after yer take a short walk off me ship’s plank.

Sparklers: Me first sparklers go to the five honorary pirate turkeys on the U.S. Supreme Court for yer beaut of a decision to legalize same-sex marriage. Ahoy, Mr. Kennedy, methinks yer swung smartly I do. This bird supports equality for all as do me feathery mates aboard me ship, barnacle free and ready steady. Aye, it’s been a long sail but we’re full speed ahead now, lads and lasses.

Sharklers: Arrr. Me first sharklers go to Gov. Mary Fallin for dancing a jig for a landlubbery bill supposedly protecting religious liberty. This law says yer state ministers don’t HAVE to marry same-sex couples, but that’s already the case. Aye, think about it. No one has to marry anyone they don’t want to. Avast, she says it’s about religious liberty, but it’s really a pouty law, mates. Boo hoo.

Sparklers: Me second set of sparklers this holiday goes to THE RULE OF LAW, ahoy, together with seven members of the Oklahoma Supreme Court, rascally rapscallions unsheathed. Arrr! The Okie constitution is clear, me mates, Article 2, Section 5. Read it with a bird’s eye view like meself. Aye, the Ten Commandments monument at the Capitol, well, thou shalt be removed.

Sharklers: Arrr. Sharklers to Attorney General Scott Pruitt for his swarmy ruckus over the monument decision. The landlubber gets it wrong, not the seven Okie Supremes. Aye, the rule of law, Mister Pruitt, the rule of law, not religious ideology. Sharklers for yer this holiday. Yer couldn’t sail a toy boat in a bathtub full of Epsom salt.

Sparklers: Arrr. He arrives each holiday with his special gifts as his sweet gobbler sways in the prairie breeze. He sails in with his feathery mates bringin’ joy a barrel of rum, fiddles, hornpipes and jigs. Sparklers to none other than meself, Planksy, the pirate turkey. Hey, gotta catch this flash flood outa here. See you soon, mates. Arrr.

Oklahoma Theocrats Lose Another Case

Oklahoma Attorney General Scott Pruitt

No, “quite simply,” Oklahoma Attorney General Scott Pruitt got it legally wrong in his statement criticizing the Oklahoma Supreme Court’s decision Tuesday that the controversial Ten Commandments monument on state Capitol grounds must be removed.

The 7 to 2 court ruling seems obvious, and one doesn’t have to be an attorney to understand it. The monument is a religious symbol on state public property, which is an obvious violation of the Oklahoma Constitution. The American Civil Liberties Union of Oklahoma and its national affiliate brought the winning lawsuit to get the monument removed.

Here’s Pruitt’s statement:

Quite simply, the Oklahoma Supreme Court got it wrong. The court completely ignored the profound historical impact of the Ten Commandments on the foundation of Western law. Furthermore, the court’s incorrect interpretation of Article 2, Section 5 contradicts previous rulings of the court. In response, my office will file a petition with the court for a rehearing in light of the broader implications of this ruling on other areas of state law. In the interim, enforcement of the court’s order cannot occur. Finally, if Article 2, Section 5, is going to be construed in such a manner by the court, it will be necessary to repeal it.”

Here’s Article 2, Section 5 of the state constitution:

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 first question for Pruitt, pictured right, of course, is how else could you not consider the “or property” and “or used” and “or support" and a “system of religion” as ambiguous in any sense. The second question is how can you dismiss the Ten Commandments as merely historical when they appear in the Bible? They are organically religious. They only exist because of religion. The Ten Commandments begin, “I am the Lord and God/Thou shalt have no other Gods before me.” How can anyone argue that’s not religious?

I hope the court denies Pruitt’s request for a rehearing just on the grounds that the state constitution is so convincingly clear on the issue. Pruitt’s argument for repeal if the constitutional section is “going to be construed in such a manner” also has its own set of problems.

Here are two of those problems:

Oklahoma Constitution, Article One, Section One: The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land.

Oklahoma Constitution, Article One, Section Two: Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.

Leave aside the issue of polygamous or plural marriages in the second section. The first section makes it clear that the U.S. Constitution supersedes the Oklahoma Constitution, which may mean the issue will probably be decided on a U.S. Supreme Court interpretation of the Establishment Clause in the First Amendment. But the second section complicates it further. For example note the language, “. . . no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship . . . “ Couldn’t people outside the Judeo-Christian religious system argue the monument makes them feel like second-class citizens and thus “molests” them psychologically or denies them equal standing in state government?

So will Pruitt also lead the charge to rewrite other major sections of the state constitution that make Oklahoma “an inseparable” part of the United States and protect people, even Christians, against religious discrimination? My point is that Pruitt’s repeal argument is not as simple as it might seem. What if the issue does end up in the U.S. Supreme Court and the court upholds the decision? Then the call for repeal becomes a tangled thicket involving at least three sections of the state constitution. Conversely, what if the high court rejects that ruling and rules the monument can stay? Then Pruitt’s repeal argument becomes as meaningless as the states’ rights argument against same-sex marriage. It’s just political posturing.

Some legislators, in response to the ruling, want to impeach the judges who ruled in favored of removing the monument, but, again, the constitution is so obvious on this point that it’s difficult to see how much traction this idea could get among people in some type of recall or impeachment effort. Judges must follow the law even if they don’t agree with it on a personal level. I think people will empathize with that.

People in favor of the Oklahoma monument point to the U.S. Supreme Court decision in 2005 to allow such a monument on the state Capitol grounds in Texas, but they often fail to mention the court also ruled at the same time against allowing Ten Commandment displays at two courthouses and a school district in Kentucky. The seemingly opposite rulings hinged largely on the fact that the Texas monument had a 40-year-old history and had not been legally challenged during that time.

Who knows what the divided high court would rule on the Oklahoma case, but the monument, which was installed only in 2012, does not have a similar history as the Texas monument. The legislator, state Rep. Mike Ritze (R-Broken Arrow), who led the effort to place the monument on state grounds and whose family donated $10,000 to the project, lists himself as an “ordained Southern Baptist deacon” on his legislative profile.

Whatever the ultimate outcome in this case, this much is true: This spectacle is about religious conservatives here trying to push their worldviews on people who don’t share those narrow worldviews. It’s about political posturing and maneuvering. It’s about the political power of the Southern Baptist Church and other Christian fundamentalist churches in Oklahoma. It’s about the real threat of theocracy here and throughout the country.

It’s NOT about the foundation of the law or even constitutional interpretations.

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