Court of Appeals Upholds Statute Requiring Reliance on God to Prevent Terrorism. Dissent by Judge Ann Shake vigorously attacks the majority’s decision….Challenged statute imposes a criminal penalty for anyone violating this recognition of God.
On Friday Oct. 28, 2011, the Ct. of Appeals overruled Franklin Circuit Judge Thomas Wingate, and upheld a statute requiring the public to rely on God…and required the posting of a a plaque prominently displayed at the state’s Emergency Operations Center which would publicize the required reliance on God.
Judge Shake noted in her dissent:
” More troublesome though, is that the statutes are located within a chapter of the Kentucky Revised Statutes which further states “any person violating any provision of this chapter or any administrative regulation or order promulgated pursuant to this chapter for which another penalty is not specified shall be guilty of a Class A misdemeanor.” KRS 39A.990″
RENDERED: OCTOBER 28, 2011; 10:00 A.M. By the Ky. Ct. of Appeals-
TO BE PUBLISHED
KENTUCKY OFFICE OF HOMELAND SECURITY;
AND THOMAS PRESTON, IN HIS OFFICIAL CAPACITY
AS THE DIRECTOR OF THE KENTUCKY OFFICE
OF HOMELAND SECURITY APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 08-CI-01950
MICHAEL G. CHRISTERSON; JAMES F. COFFMAN;
LUCINDA HEDDEN COFFMAN; JAN EWING;
EMMETT F. FIELDS; ALEX GRIGG; EDWIN HENSLEY;
HELEN KAGIN; GARY MARYMAN; DAVID RYAN;
AND JAMES K. WILLMOT APPELLEES
BEFORE: VANMETER AND WINE, JUDGES; SHAKE,1 SENIOR JUDGE.
VANMETER, JUDGE: The Kentucky Office of Homeland Security (“KOHS”)
and Thomas Preston, as the director of the KOHS (hereinafter collectively referred to as “KOHS”), appeal from the order of the Franklin Circuit Court that granted summary judgment in favor of Appellees2 and American Atheists, Inc. (“American Atheists”) on the basis that KRS3 39A.285 and KRS 39G.010 violate the First and Fourteenth Amendments to the United States Constitution and Section 5 of the Kentucky Constitution.
… The text of KRS 39A.285, styled Legislative Findings, provides:
The General Assembly hereby finds that:
(1) No government by itself can guarantee perfect
security from acts of war or terrorism.
(2) The security and well-being of the public
depend not just on government, but rest in large
measure upon individual citizens of the
Commonwealth and their level of understanding,
preparation, and vigilance.
(3) The safety and security of the Commonwealth
cannot be achieved apart from reliance upon
Almighty God as set forth in the public speeches
and proclamations of American Presidents,
including Abraham Lincoln’s historic March 30,
1863, Presidential Proclamation urging Americans
to pray and fast during one of the most dangerous
hours in American history, and the text of
President John F. Kennedy’s November 22, 1963,
national security speech which concluded: “For as
was written long ago: ‘Except the Lord keep the
city, the watchman waketh but in vain.’”
KRS 39G.010(2)(a) requires the executive director of the KOHS to:
Publicize the findings of the General Assembly stressing the dependence on Almighty God as being vital to the security of the Commonwealth by including the provisions of KRS 39A.285(3) in its agency training and educational materials. The executive director shall also be responsible for prominently displaying a permanentplaque at the entrance to the state’s Emergency Operations Center stating the text of KRS 39A.285(3)[.]
.. The United States Supreme Court has a long history of applying the
Establishment Clause to state legislation, drawing a line with reference to three activities the Establishment Clause seeks to prohibit: “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Lemon v. Kurtzman, 403 U.S. 602, 612,
… the Lemon test, establishes the following criteria to determine
whether a law establishes a religion or religious faith: (1) whether the challenged law has a secular purpose; (2) whether the principal or primary effect of the law is to advance or inhibit religion; and (3) whether it creates an excessive entanglement of government with religion. 403 U.S. at 612-13, 91 S. Ct. at 2111. The second method, recognized in Van Orden v. Perry, 545 U.S. 677, 686, 125 S. Ct. 2854, 2861, 162 L. Ed. 2d 607 (2005), looks to the relevant religious and historical significance, as well as the nature of the entity affected by the legislation. In Van Orden, the Court noted that “[s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the
Establishment Clause.” Id. at 690.
In the case at bar, the trial court opined that KRS 39G.010 was enacted for a predominantly religious purpose and conveyed a message of mandatory religious belief, thereby violating the Establishment Clause under the Lemon test. Further, the trial court concluded that KRS 39A.285 “places an affirmative duty to rely on Almighty God for the protection of the Commonwealth[,]” and thus “created an official government position on God[,]” which is incompatible with any historical significance possibly found in the legislation.
… history includes countless political leaders who thanked God and “prayed that the nation might continue to enjoy His favor.” Id. at 299. The Court held the motto to be “merely a broadly worded expression of a religious/philosophical sentiment[,]” stating it “involves no coercion. It does not purport to compel belief or acquiescence. It does not
command participation in any form of religious exercise. It does not assert a preference for one religious denomination[.]” Id. Ultimately, the Court found the motto simply paid “lip service to the puissance (power) of God,” rather than seeking to or \
having the effect of advancing religion within the state. Id. at 308
… the Kentucky legislature made legislative findings in
KRS 39A.285(3), which references the Commonwealth being protected by
an “Almighty God” and requires such findings to be publicized in KOHS
training materials and posted at the State Emergency Center. While KRS
39G.010(2)(a) requires the executive director of the Kentucky Office of
Homeland Security to publicize these findings, no requirement exists that
the director agree with or believe in them or that citizens read the posting.
… The Kentucky legislature has not attempted to compel belief or participation in any form of religious exercise, nor does it seek to prefer one belief over another. A simple reference to a generic “God” acknowledges religion in a general way. Elk Grove Unified School District v. Newdow, 542 U.S. 1, 42, 124 S. Ct. 2301, 2326, 159 L. Ed. 2d 98 (2004).
… Such broad declarations have been viewed as “simply a tolerable
acknowledgment of beliefs widely held among the people of this country.” Marsh
v. Chambers, 463 U.S. 783, 792, 1
We disagree with the trial court’s assertion that the legislation seeks to place an affirmative duty upon the Commonwealth’s citizenry to rely on “Almighty God” for protection of the Commonwealth. The legislation merely pays lip service to a commonly held belief in the puissance of God.
… we have found, no Kentucky case that has adopted the reasoning that this section prohibits a statutory reference to God of the sort embodied in the statutes in question.
… When viewed against this historical background, the statutory references to God, like the other constitutional references to God, do not violate the prohibition of Section 5, or impinge on the freedom of the Appellees to believe or disbelieve as they deem fit
… WINE, JUDGE, CONCURS.
SHAKE, SENIOR JUDGE, CONCURS IN PART AND DISSENTS IN
PART AND FILES SEPARATE OPINION.
adopt the sound reasoning of the trial court. The trial court analyzed KRS 39G.010 under the Lemon test and the statute was found to have the
impermissible effect of endorsing religion because it was enacted for a predominantly religious purpose and conveyed a message of mandatory religious belief. See Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971).
The trial court concluded that unlike an ephemeral, general reference to Almighty God nestled in the middle of a statute, KRS 39A.285 “places an affirmative duty to rely on Almighty God for the protection of the Commonwealth.” The court opined that the Kentucky General Assembly had effectively “created an official government position on God” beyond a general acknowledgement that people have historically looked to God for protection.
Respectfully, I disagree with the majority that this case is analogous to the Sixth Circuit case of ACLU of Ohio v. Capitol Square Review & Advisory Bd., 243 F.3d 289 (6th Cir. 2001) (en banc).
Furthermore, KRS 39G.010(2)(a) places a duty upon the executive director to publicize that assertion while stressing to the public that dependence upon Almighty God is vital, or necessary, in assuring the safety of the Commonwealth.
This declaration is then given great publicity and emphasized by placement on a plaque prominently displayed at the state’s Emergency Operations Center
… More troublesome though, is that the statutes are located within a chapter of the Kentucky Revised Statutes which further states “any person violating any provision of this chapter or any administrative regulation or order promulgated pursuant to this chapter for which another penalty is not specified shall be guilty of a Class A misdemeanor.” KRS 39A.990 (emphasis added). Therefore, failure to abide by the challenged statutes is a crime punishable by up to twelve months in the county jail.11
… A legislative mandate squarely placing our Commonwealth’s security with an Almighty God, and legally requiring such a message to be publicized, is a direct affront to that freedom.
… the challenged statutes fail to pass constitutional muster even under the reasonable observer test.
… Religious establishment can take many forms. In Neal and Fannin, it took the form of educational funding; in this case it has taken the form of a state statute.
The Constitutional mandate of “no preference” should be applied to all religious inclinations, regardless of the container in which they are delivered
For the foregoing reasons, I would affirm the August 26, 2009, order
of the Franklin Circuit Court in its entirety.
BRIEFS/ORAL ARGUMENT FOR
Attorney General of Kentucky
Assistant Deputy Attorney General
AMICUS CURIAE BRIEF FOR
THIRTY-FIVE KENTUCKY STATE
Ronald D. Ray
AMICUS CURIAE BRIEF FOR
NINETY-SIX KENTUCKY STATE
Jack L. Richardson
BRIEF/ORAL ARGUMENT FOR
Edwin F. Kagin
AMICUS CURIAE BRIEF FOR THE
AMERICAN CIVIL LIBERTIES
William E. Sharp