Judicial Reform

Ten Commandments case highlights Oklahoma’s judicial incoherence

Jonathan Small | April 29, 2024

Some Oklahomans prefer that an unelected and unaccountable Judicial Nominating Commission (JNC) choose, in secret, all major Oklahoma judicial nominees. They claim the commission has worked. They object to reform efforts. 

Yet if you look at the product produced by the JNC—the opinions handed down by judges selected by the JNC—there is much evidence to the contrary. And that’s not a recent development.

Consider a 2015 ruling issued by the Oklahoma Supreme Court, which held that a display of the Ten Commandments at the Oklahoma Capitol violated a state constitutional prohibition on using public money for the benefit of any religion.

That alone was not surprising. What was unexpected was that the court did not explain how its decision aligned with a similar 1972 opinion issued by the Oklahoma Supreme Court, which held that a 50-foot Latin Cross displayed at the Oklahoma City fairgrounds did not violate that same constitutional prohibition.

Justices simply ignored the court’s own prior ruling.

It was not until officials filed for a rehearing that justices provided any explanation. One justice claimed that the Ten Commandments monument “does explicitly ‘display’ and ‘articulate’ ideas that directly pertain to the Judeo-Christian system of religion,” but that a 50-foot Latin Cross did not. (No doubt that was news to many churches that proudly display the cross.)

Two justices said the court’s ruling on the Latin Cross was an “anomaly in our jurisprudence,” and that they “would explicitly overrule it.” One of those two justices, writing separately, argued the Ten Commandments decision “implicitly overruled” the Latin Cross ruling, although the commandments opinion said nothing about the 1972 case.

And still another justice supported rehearing the case, writing that he believed the Ten Commandments decision “does not overrule” the court’s Latin Cross ruling and said the “need for clarification is apparent.”

The problems of self-contradicting rulings—and the court’s failure to address how their latest ruling aligns with prior similar cases—has long created legal confusion that undermines citizens’ rights.

In one case, the court will declare a multi-issue bill to be unconstitutional “logrolling” or a “special law,” but not a substantially similar case only a few years later. And the courts rarely provide an explanation for the discrepancy.

The only notable pattern is one of apparent politicization. The Oklahoma Supreme Court has proven eager to claim a multi-section bill that restricts lawsuits is “logrolling,” but shrugged at similar multi-subject bills on other topics. One gets the sense that on certain topics, judges are ruling based on their preferred political outcome and then try to make the law fit around it, rather than letting the law determine the ruling.

Such incoherence is not a sign of a high-quality judicial system that justifies citizen pride.

Jonathan Small President

Jonathan Small


Jonathan Small, C.P.A., serves as President and joined the staff in December of 2010. Previously, Jonathan served as a budget analyst for the Oklahoma Office of State Finance, as a fiscal policy analyst and research analyst for the Oklahoma House of Representatives, and as director of government affairs for the Oklahoma Insurance Department. Small’s work includes co-authoring “Economics 101” with Dr. Arthur Laffer and Dr. Wayne Winegarden, and his policy expertise has been referenced by The Oklahoman, the Tulsa World, National Review, the L.A. Times, The Hill, the Wall Street Journal and the Huffington Post. His weekly column “Free Market Friday” is published by the Journal Record and syndicated in 27 markets. A recipient of the American Legislative Exchange Council’s prestigious Private Sector Member of the Year award, Small is nationally recognized for his work to promote free markets, limited government and innovative public policy reforms. Jonathan holds a B.A. in Accounting from the University of Central Oklahoma and is a Certified Public Accountant.

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