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 (http://en.wikipedia.org/wiki/Lemon_test#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.

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4 Responses to KY Requests Case Dismissal

  1. Pingback: Kentucky Case Update « No God Blog

  2. chris murphy says:

    Thomas also used a movie quote about Eisenhower to “help” substantiate his point.
    I fond myself angry that there seems to be an “anything goes” approach, and that he would treat everyone as if they were ignorant. Using history to say that the future should abide by it is absolutely contrary to why our system of government is set up the way it is. We are given the chance to learn from mistakes in history, and correct them through elections. His argument was tantamount to saying that because slavery is a prominent part of our history, then it should still be allowed.

  3. edhensley says:

    The judge’s last statement as he was walking off the bench was “I asked [another judge] if I could trade this case with him for the Billy G. case!”

    For those of you outside Kentucky, this was a reference to Billy Gillespie, the former coach of the University of Kentucky basketball team who was fired this year. This is a multi-million dollar disagreement over his buyout package.

  4. Maureen Taylor says:

    Sorry I missed the hearing (had to work), but I’d like to clarify what “eggshell plaintiffs” means. It doesn’t mean they aren’t real organizations; it just means they are particularly fragile–offended by things that “normal people” wouldn’t be offended or injured by.

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