Court of Appeals Opinion

The following link should take you to the Appeals Court decision.

Court of Appeals Opinion for Homeland Security Case


Herald Leader: Court upholds Kentucky law requiring reliance on ‘Almighty God’ for security

By John Cheeves –

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The Kentucky Office of Homeland Security has the right to publicly declare “dependence on Almighty God as being vital to the security of the Commonwealth,” the state Court of Appeals ruled Friday.

State law requires the Office of Homeland Security to publicize God’s benevolent protective powers in its official reports and on a plaque posted outside the entrance to the state Emergency Operations Center in Frankfort. State Rep. Tom Riner, D-Louisville, a Southern Baptist minister, placed the “Almighty God” language into a 2006 homeland security bill without much notice at the time.

A group of atheists sued after the Lexington Herald-Leader wrote about the law in 2008. They argued that the U.S. and Kentucky constitutions prohibit the government from endorsing religion or conveying messages of mandatory religious belief. In 2009, Franklin Circuit Judge Thomas Wingate sided with them and struck down the law.

But in a split decision, a three-judge appellate panel ruled Friday that the state law is constitutionally harmless.

The appellate judges compared Kentucky’s law to Ohio making “With God, All Things Are Possible” its official state motto, which the U.S. 6th Circuit Court of Appeals upheld as constitutional in 2001, they wrote.

“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,” wrote Judge Laurance VanMeter of Lexington in the majority opinion. VanMeter was joined by Judge Thomas Wine of Louisville.

In a dissenting opinion, Special Judge Ann O’Malley Shake of Louisville said Kentucky’s law crossed a constitutional line. Among other things, she noted the law has criminal penalties, including up to 12 months in jail, for anyone who fails to comply.

Unlike the Ohio state motto, which is “passive,” Shake wrote, Kentucky’s law “is a legislative finding, avowed as factual, that the commonwealth is not safe absent reliance on Almighty God. Further, (the law) places a duty upon the executive director to publicize the assertion while stressing to the public that dependence upon Almighty God is vital, or necessary, in assuring the safety of the commonwealth.”

One of the plaintiffs, American Atheists, plans to appeal Friday’s decision to the Kentucky Supreme Court, said its president, David Silverman. American Atheists is a national non-profit advocacy group.

The fact that two Kentucky judges have said the law is constitutional and two other judges have disagreed “just shows the very deep division over religion in our society,” said Edwin Kagin of Union, an attorney for American Atheists.

“What if the law required that Kentucky acknowledge our reliance on the benevolent protection of Allah? Would everyone still be in favor of it then?” Kagin said. “Of course not.”

Courier-Journal: Appeals Court Rules KY Can Be Dependent On “Almight God”

Court of Appeals: Kentucky can credit ‘Almighty God’ for homeland security

From the Louisville Courier-Journal

Kentucky can continue giving official credit for its homeland security to Almighty God, the Kentucky Court of Appeals ruled Friday in a decision overturning a lower-court ruling.

A three-judge panel on the court, in a split decision, rejected the 2009 ruling of Franklin Circuit Judge Thomas Wingate, who declared legislation requiring credit to the Almighty to have “created an official government position on God,” in violation of the Kentucky and U.S constitutions’ bans on state-sponsored religion.

A group of 10 Kentucky residents filed suit to challenge the legislation in 2008.

“We have found no Kentucky case that … prohibits a statutory reference to God of the sort embodied in the statutes in question,” said the court ruling, written by Judge Laurance B. VanMeter and joined by Judge Thomas Wine.

“That rationale would place this section at odds with the (Kentucky) Constitution’s Preamble,” which itself thanks “Almighty God” for the welfare of the commonwealth.

At issue are two related laws passed in the wake of the Sept. 11, 2001, terrorist attacks.

A 2002 “legislative finding” says the “safety and security of the commonwealth cannot be achieved apart from reliance upon Almighty God.”

And a 2006 act creating the state’s Office of Homeland Security requires its executive director to publicize this “dependence on Almighty God” in agency training and educational materials and through a plaque at the entrance to its emergency operations center.

In a 2009 ruling, Franklin Circuit Judge Thomas Wingate declared the law to have “created an official government position on God,” in violation of the Kentucky and U.S constitutions.

Senior Judge Ann O’Malley Shake dissented from her Court of Appeals panel colleagues, saying that Wingate was correct in seeing the legislation as having an “impermissible effect of endorsing religion because it was enacted for a predominantly religious purpose and conveyed a message of mandatory religious belief.”