Videos on the KY Homeland Security Lawsuit

Click here to view an early story on this lawsuit on The Colbert Report.

YouTbue video of the first hearing from someone not associated with any plaintiff:

Part 2 of the first hearing:

Rachel Maddow:

The Colbert Report:—the-unbearable-lightness-of-supreme-being


KY Requests Case Dismissal

June 1, 2006

Today was the first hearing in this case. There will probably be many hearings in the future. In today’s hearing, the Commonwealth of Kentucky (I will refer to them as KY) requested a dismissal of the case. The case was filed by Edwin Kagin in Franklin County for the purpose of moving up through the courts and avoiding the Federal 6th Circuit Court. Today’s hearing would only decide whether or not to dismiss the case.

The KY attorney Thomas went first. He claimed that there was no federal or state basis for the separation of church and state and that there was no “bright-line rule” regarding government speech regarding religion. He claimed that the 3rd prong of the Lemon Test ( only prevented “excessive entanglement” of government and religion and claimed that some entanglement of government and religion was fine.

The judge suddenly interrupted Thomas, “But doesn’t these laws require the use of tax dollars to publicize these findings?” Thomas started quoting a case from Ohio where he felt this was OK. That case involved displaying the Ohio Motto (With God All Things Are Possible) on and in government buildings.  The judge pressed forward, “But doesn’t this law require a continuing process?” The attorney stumbled and said he did not understand the question. The judge told him to move on. The judge twice interrupted Thomas with questions about the use of tax dollars to promote these statements.

Edwin Kagin gave an effective presentation that involved citing multiple Supreme Court cases and a discussion about the difference between statements of history and religious statements. He noted that the statement “Historically many Americans have relied upon Almighty God for their security” is a proper historical statement. But the statement “The  safety  and  security  of  the  Commonwealth  cannot  be  achieved  apart  from  reliance upon Almighty God “is a religious statement.  He pointed out that Almighty God, with a capital A and G, is a Christian way to refer to god and completely rules out multiple gods or no gods at all. He pointed out that this law is not just government speech, but it is also establishment in that it requires an agency to post a plaque and promote this “finding of fact” in its materials. He noted that there never was any “finding of fact” that occurred, even though the authors of the bill made that claim.  The judge never did interrupt Kagin but did make a statement agreeing with Kagin regarding the use of tax dollars. He quoted Jefferson on the separation of church and state and used other quotes by Kennedy to note that JFK was an avid supporter of separation of church and state. Kagin also rebutted Thomas’ claims on the Lemon test. Kagin also quoted Justice Black of the Supreme Court:

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.'”

Thomas replied with cases from the 6th Circuit Court that seemed to support his argument about the use of tax dollars for religious purposes. One of those cases involved Detroit spending money to update the exteriors of all buildings along one area of town, and this included some churches. This case was lost by the American Atheists.  Thomas also referred to the American Atheists and the ACLU as “eggshell plaintiffs,” implying that these organizations are not real people who desire to change law but are instead organizations waiting to sue over religious issues. His last statement was bizarre and got an odd look from the judge. Thomas claimed he was not a Christian and did not go to church. This seemed to come from left field.

Kagin responded by noting that ALL the cases he referred to were Supreme Court cases and noted that the 6th Circuit Court cases were not Supreme Court cases. He mentioned a February 2009 Supreme Court that differentiated between government speech and the establishment of religion. He noted the difference between the Detroit case and the KY case. He also noted that he filed in Franklin County to avoid the 6th Circuit Court.

Judge Wingate gave both sides a fair hearing and we await his decision on the case.

I will update this blog when there is a decision.

Background: KY Passes Unconstitutional Laws

This lawsuit had its beginnings a short while after the terrorist attacks on September 11, 2001 and only 4 months after Bush announced the establishment of the Office of Homeland Security, naming former then Pennsylvania Governor Tom Ridge as it’s head.  Ridge assumed his duties on Oct. 8, 2001. 

Soon after, government funds were being offered and all state governments wished their share of it – Kentucky included.

House Bill 258 – first introduced January 8, 2002 – became KRS 39A.285, effective on March 28, 2002.  It is KRS 39A.285, Section 3 that states:


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.’ “


HB 258 was sponsored by Rep. Tom Riner (D – Jefferson 41), and co-sponsored by Speaker Jody Richards (D) and Rep. Denham.

As the bill wound its way through the legislature, Rep. Riner presented the bill in the Senate Veterans and Military Affairs committee on February 25, 2002.  This committee was chaired by Senator Dan Seum (R).

In Riner’s presentation he stated that he had spent considerable time with the National Guard and the Emergency Operations Center finding out their needs.  Riner also stated that he had become aware of a missed opportunity for Kentucky to bring down $1.5 million from the Dept. of Justice and that this bill (House Bill 258) would achieve that goal.  Riner then acknowledged that the government itself could not provide total protection without the involvement of individual citizens who also kept the Commonwealth safe from terrorism.

During the proceedings, then Senator David Karem (D) asked Riner if the only difference in the Committee Sub and the language of what he was presenting that day was “this preamble” [referring to what would later become KRS 39A.285 Legislative Findings].

Riner responded “no”, and then went into other differences related to adding the words nuclear, radioactive, biological, chemical and agro-eco-electromagnetic pulse and cyberterrorism and the rationale behind that as well as discussion of what the public health role was in this.

Karem then persisted:  “What’s the purpose of the preamble?  I mean – I think we all believe in the reliance on Almighty God, but I don’t know that it’s my responsibility to tell somebody that they need to fast [Karem shakes head].  That’s their own personal religion.  I don’t think I should be going about telling people that they should pray and fast.  Isn’t that their own – I have great reliance on Almighty God, but I’m not sure it’s my job to tell people to go out and fast ” [Karen taps glasses on desk/paper before him and then gestures with them toward Sen. Seum].

Riner replied:  “Well, we’re not doing that.  We’re saying that the safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God.  It’s something that every President in every crises has recognized…and it’s something in particular that was pointed out in the two mentioned documents” [references to Lincoln’s proclamation and Kennedy’s undelivered speech].

Seum [redirecting]:  Any other questions?  Senator Karem?

Karem:  No thank you.

Other exchanges occur with other members.   Seum directs that if there are no more questions that “we need to adopt the Committee Sub”.

Senator Karem voted NO on the adoption and Sen. Herron said “reluctantly aye”.  The bill passed out of committee. 

It eventually became law on March 28, 2002.


Even given the religious and exclusionary language of “The safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God as set forth … etc. …” and reference to the partial quote of the King James translation of Psalm 127:1 “Except the Lord keep the city, the watchman waketh but in vain”, it might pass muster as ceremonial deism as it does not ESTABLISH religion.

It just makes a gratuitous nod to an “Almighty God” AS MENTIONED in meaningless and non-law proclamations and speeches of past presidents.

American Atheists and Plaintiffs noted:

~ Riner chose to quote speeches and proclamations of the two most well known assassinated presidents, who were not protected by calling upon this “Almighty God”. 

The quoting of President Kennedy’s prepared and undelivered speech of November 22, 1963, was also an awkward choice by Riner.  President Kennedy was assassinated before he could give that very speech at the Dallas Business and Trade Mart.

~ According to known history, the Almighty God of the Old Testament failed numerous times to protect the  Chosen People from being enslaved, conquered and exterminated over a period of centuries.

~ An omnipotent “Almighty God” wouldn’t need a Department of Homeland Security as he/she/it would be quite capable of smiting whomever he/she/it wanted without assistance.

~ The notes in the unchecked/recovered baggage of the 911 terrorists directed them to do the same things that Riner, in his bill, suggested that the citizens of the Commonwealth also do:

“You should pray, you should fast. You should ask God for guidance, you should ask God for help. . . .Continue to pray throughout this night. … ”God, I trust in you. God, I lay myself in your hands.”  

[*”In Hijacker’s Bags, a Call to Planning, Prayer and Death”, by Bob Woodward, Washington Post, Friday, September 28, 2001; Page A01]

In 2006 Senate Majority Floor Leader, Dan Kelly (R – Washington 14) sponsored Senate Bill 59, an ACT relating to reorganization, to establish KRS Chapter 39G and create new sections to establish the Kentucky Office of Homeland Security and its duties …

When it reached the House, Rep. Riner again inserted his religious beliefs into the statutes.  Riner submitted two identical House Floor Amendments to Senate Bill 59, HFA (3 and HFA (4 with the language:

“Add a provision to require the executive director of the Office of Homeland Security 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 statutory  provisions of KRS 39A.285(3) in its agency training a educational materials; require the executive director of the Office of Homeland Security to see that a plaque with the text of KRS 39A.285(3) be displayed at the entrance of the Emergency Operations Center; make conforming amendments.”


The House Floor Amendment to Senate Bill 59 was discussed on March 24, 2006 in the House.

However, the bill was challenged by then Representative (now Senator) Kathy Stein on the House floor:

Rep. Cherry:  Thank you Mr. Speaker.  I yield to the gentleman from Jefferson 4 for an amendment.

Speaker Richards:  I don’t believe there’s a Jeff…

Rep. Cherry:  Ah!  Jefferson…I’m…I’m sorry.  Jefferson 41.

Speaker Richards:  Gentleman from 41…Now, I believe you’re 4…Gentleman from Jefferson 41.

House members:   [Laughter.]

Rep. Tom Riner:  [Riner comes to the mike laughing]  If the clerk would please report Floor Amendment 4.

Speaker Richards:  Clerk, please report House Floor Amendment number 4.

Clerk:  Amend Senate Bill 59, House Floor Amendment 4.

Speaker Richards:  Gentleman from Jefferson 41.

Rep. Riner:  Floor Amendment 4 ensures the General Assembly’s Legislative Finding in the 2002 Anti-Terrorism Act  that became law be given greater exposure in the agency and its training materials.  If there be no question, I would  move adoption.

Speaker Richards:  Motion made and seconded for the adoption of House Floor Amendment 4.  There does seem  to be some discussion.

Lady from Fayette 75, you are recognized for discussion ma’am.

Rep. Kathy Stein:  [Right in front of Riner, but with her back to him]  Will the gentleman from Jefferson yield to a question? 

Speaker Richards:  Will you yield to a question gentleman?

Rep. Riner:  Yes. 

Speaker Richards:  Lady from Fayette 75. 

Rep. Stein:  Gentleman will you read to the body the language that you propose to have on the plaque that is suggested in this amendment?  [Stein, still with back to Riner, now crosses her arms in front of her – looking like a disgusted teacher who has  caught their student passing a note and who is now making the student read the note aloud to all his classmates]

Speaker Richards:  Gentleman from Jefferson.

Rep. Riner:  Uh, yes.  The Legislative Findings that we made in 2002, the Anti-Terrorism Act, that would be  included on a plaque that would be on the Emergency Operations Center says “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 the American Presidents including Abraham Lincoln’s historic March 30, 1863 presidential  proclamation urging Americans to pray and fast [Rep. Kathy Stein winks to someone in front of her] during one of the  most dangerous hours in American history and the text of John F. Kennedy’s November 22nd, 1963 National Security  Speech which concluded [Rep. Kathy Stein nods and smiles to someone in front of her and appears to mouth “I will –  just a minute”,  and then nods again] “for as was written long ago, except the Lord keep the city the watchman waketh but in  vain.”

Speaker Richards:  Lady from Fayette 75.

Rep. Stein:  One more question please.

Speaker Richards:  He will…he will yield to a question [Riner nods].  Lady from Fayette 75.

Rep. Stein:  How long does that require the members of this body to fast and pray? [Rep. Stein, still with back to Riner, winks again].

Speaker Richards:  Gentleman from Jefferson 41.

Rep. Riner:  [Smiling] Doesn’t require anybody to do any fasting or any praying, just uh, gives recognition to the fact that there are those in times past who have felt led to move this nation to pray and fast during hours of critical emergencies and wars.

Speaker  Richards:  Lady from Fayette.

Rep. Stein:  Thank you very much.

Speaker Richards:  Thank you.  Seeing no other members wishing to discuss the amendment, all members  favoring House Floor Amendment 4 signify by saying “aye”. 

House  members:  “Aye!”

Speaker Richards:  Those opposed “nay”.

House members: “NOooo!” [loudly]
Speaker Richards:  [Tongue between lips and shrugging] All members favoring House Floor Amendment 4 signify by saying “aye”

House  members:  “Ayyyyyyyyyyyye!”

Speaker Richards:  Those opposed “nay”.

House members:  “NOOOOOOOOOO!” [louder]

House members:  Roll call, roll call, roll call, roll call…….

Speaker Richards:  [Smirking]  I think two members have asked for a roll call [laughter from floor].

Gentleman  from Stinking Creek you want a roll call? [referring to Representative Jim Stewart from Knox County]

[Voice heard – “Say yes”]

Rep. Stewart:  What is the Speaker saying? [Camera pans to him as he laughs and laughter is heard in the background from other House members.]

Female voice heard:  What’s the railroad say?  [more laughter].

Speaker Richards:  All members in favor vote “aye”, those opposed “nay” and the roll call machine is open for your vote.  Does any members wish to change or explain his or her vote?  Have all members voted?  [Camera pans to vote tally board showing Yea: 77 and Nay 9].

I would declare those 9 people made a lot of noise!  [vote tally board changes to “Yea 79” and “Nay 10” amid loud laughter and guffaws from the House members].

Clerk will take the roll. 

[Nay:   Bruce,  Burch,  Jenkins,  Marzian,  Meeks,  Nunn,  Owens,  Wayne,  Weston Not  voting:   Barrows,  Belcher,  Butler-  D.,  Crenshaw,  Graham,  Moberly,  Napier,  Palumbo,  Rasche,  Westrom,  Yonts]

There being 79 members voting “aye” and 10 members voting “nay”, House Floor Amendment 4 is adopted. 

Speaker Richards:  Gentleman from Caldwell.

Rep. Cherry:  Thank you Mr. Speaker, ladies and gentlemen.  I call, oh, I move adoption or passage of Senate Bill  59 as amended by House Committee Substitute 1 and Floor Amendments 2 and 4.

Speaker Richards:  Motion made and seconded.  For the adoption of Senate Bill 59, as amended by House  Committee Substitute 1 and House Floor Amendment 2 and House Floor Amendment 4.  Is there discussion.  Seeing  none are you ready for the vote?  Clerk sound the chimes. Question now is on the adoption of Senate Bill 59 as  amended.  All members in favor vote “aye”, those opposed vote “nay” and the roll call machine is open for your vote. 

Does…thank you…does any members wish to change or explain his or her vote?  [Camera pans to vote tally board]    Have all members voted?

Clerk will take the roll.

[Voting  No:   Burch,  Jenkins,  Marzian,  Stein,  Wayne.   Not voting:   Butler, D., Crenshaw, Graham, Moberly.] 

There being 91 members voting “aye” and 5 members voting “nay”,  Senate Bill 59 is adopted.

Speaker Richards:  Gentleman from Caldwell.

Rep. Cherry:  Thank you Mr. Speaker.  Move for the clincher. 

Speaker Richards:  Without objection.


Senate Bill 59, with Riner’s floor amendment, then became “39G.010 – Kentucky  Office  of  Homeland  Security  executive  director  –  Duties  –  Delegation of duties — Notification of disaster or emergency”; becoming  effective July 12, 2006.

This is the language of KRS 39G.010(2)(a):

“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 permanent plaque at the entrance to the state’s Emergency Operations Center stating the text of KRS 39A.285(3);”

Pretty much the wording of Riner’s House Floor Amendment.

THIS is the ESTABLISHMENT – Assigning to a government official, the Director of the KY Office of Homeland Security, the duties of creating and displaying a permanent plaque with ONLY the religious language of Section 3 of the statute on it, and publishing the same language in the education and training manuals of the KOHS as well as in the distributed annual reports of the KOHS.

Government time, energy, personnel and funds were expended in doing all this.


– American Atheists has viewed DVDs from the legislative sessions (per Open Records Requests and as noted above) to give details of the process of enacting the laws that are now challenged in the lawsuit.

– American Atheists has seen and obtained photos of the permanent plaque, required by law.  This plaque consists of the language of only Section 3 of KRS 39A.285, un-centered on a piece of regular copy paper and in an 11 x 14, wooden frame (the same frame being available at Walmart for $7.00). 

This plaque is now located in the hallway of the Emergency Management Center.  The EMC itself being located on the premises of the Boone National Guard Center.  There are no indications of the purpose of this plaque on the frame itself or on the wall near the plaque.  (Refer to photos of the plaque.)

This plaque, in all appearance, appears to be an official, sanctioned statement by Government.

– American Atheists has obtained the 2003 KOHS Annual Report that does NOT show any language from KRS 39A.285 within the report. 

This language only appears after the passage of KRS 39G.010, particularly section (2)(a), in 2006.

– American Atheists is aware of and has obtained the pages from the educational and training manuals used by the KOHS [per Open Records Request], stating the KRS language in question.

– American Atheists has obtained the 2006 KOHS Annual Report from the Fletcher Administration.  This report was issued with accompanying letters from Gov. Ernie Fletcher and the then Executive Director of KOHS, (Ret) Maj. Alecia Webb-Edgington.

In the 2006 report, the entire language of KRS 39A.285 is on page 12, as a stand alone statement, without KRS headings, numerical designations or other explanation of what it is.  This gives the appearance of it being an official statement of fact by the Kentucky State Government.

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– American Atheists has obtained the 2008 KOHS Annual Report from the Beshear Administration.  This report was issued under the names of Gov. Beshear and KOHS Executive Director, Thomas L. Preston.

Despite newspaper reports to the contrary (Lexington Herald-Leader and Louisville Courier Journal), the 2008 report did include the language of KRS 39A.285, as a supplement of the report, on page 37.  The entire language of the statute appears with the appropriate KRS headings, and numerical designations.  However, this all appears under the heading “Protection Statement”.

The appearance is that this is THE statement by KOHS of how citizens of the Commonwealth receive protection.

Also at the end of the 2008 KOHS Annual report is this statement:

“This Document was prepared under a grant from the Kentucky Office of Homeland Security, Office of State and Local Government Coordination and Preparedness (SLGCP) and the United States Department of Homeland Security.”

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– Besides the costs of personnel in preparing the reports, training and educational manuals and the printing and distribution of these official reports, training and educational manual, BOTH the  2006 Fletcher and the 2008 Beshear reports were accessible from the Kentucky State Government webpage of the KY Office of Homeland Security: (2006 Report) (2008 Report)

We feel that this does entangle religion and government and thus constitutes ESTABLISHMENT.

Thanks to Jan Ewing for the research involved in this post.