Ky Attorney General Conway Responds

Jack Conway's finally replied after SCOTUS ordered him to do so.

Jack Conway’s finally replied after SCOTUS requested him to do so.

Kentucky Attorney General Jack Conway filed a response to the AA petition to the Supreme Court of the United States (SCOTUS). Originally, Conway elected not to reply. He was requested to reply by SCOTUS and finally did so.

I have attached the response here: Ky Attorney General Response.

I experienced several face palm moments when reading the document, but I will just discuss three of his claims.

1) the statutes are a part of the legislature’s valid secular purpose… of protecting the Commonwealth from all major hazards

This is an ASSERTION not backed up by any evidence. Exactly HOW do these religious proclamations and requirements protect us?

2) 39G.010 does not require anyone to recite, affirm, or swear to the text of 39A.235.

39A does make it a misdemeanor to violate that statute, the EOC IS REQUIRED to publish the findings in educational materials and annual reports, and the Governor is also required to publish the findings in annual reports.

3) While a movement to mix religion and government may exist, again it is completely irrelevant to the legal analysis of the statutes

This is an ADMISSION that there is a movement to mix religion and government. It is NOT irrelevant to these statues. These religious requirements can result in a misdemeanor, fine, and jail sentence. I would ask the court what this ADMITTED movement to mix religion and government might do NEXT if this law is upheld. What future religious offenses could be required, and what future jail sentences could be ordered? Today the atheists, tomorrow the Muslims and Jews.


Supreme Court Requests KY Attorney General Repsond

KY Attorney General Jack Conway filed a waiver of right to file a response with SCOTUS.

KY Attorney General Jack Conway filed a waiver of right to file a response with SCOTUS.

The Supreme Court requested KY Attorney General Respond

The Supreme Court requested KY Attorney General Respond

WASHINGTON D.C. – On December 14, 2012, Kentucky Attorney General Jack Conway filed a waiver of right to file a response with Supreme Court of the United States (SCOTUS) in response to the Petition for a Writ of Certiorari in the Kentucky Homeland Security case.The waiver of the right to answer by the defendants could be seen in at least two different ways: 1) They think our argument and case is so weak that no reply is necessary, or 2) They want SCOTUS to take the case.

On January 11, 2013, SCOTUS sent Conway a letter requesting that Kentucky file a response. SCOTUS told Conway

Although your office has waived the right to file a response to the petition for a writ of certiorari in the above case, the Court nevertheless has directed this office to request that a response be filed.

Forty printed copies of your response, together with proof of service thereof, should be filed on or before February 6, 2013.

Your attention is directed to the provisions of Rule 33 of the rules of this Court. Please note that the color or the cover of your brief should be orange.

This request by SCOTUS increases the probability that SCOTUS will review this case. Only one out of every thousand cases petitioned to SCOTUS are actually heard. The fact that SCOTUS is demanding Conway produce 40 orange covered copies of a response by February 6 indicates that at least someone has read something in the petition that concerns them.

You may read the letter from SCOTUS to Conway here:  SCOTUS To KY Attorney General.

American Atheists Petitions the US Supreme Court

On November 13, 2012, American Atheists (AA) National Legal Advisor Edwin Kagin submitted a petition for a writ of certiorari to the Supreme Court of the United States (SCOTUS). This means that he is asking SCOTUS to review the Kentucky Homeland Security lawsuit. AA won at the Circuit Court level, but had the decision reversed by the Ky Court of Appeals. The Ky Supreme Court decided not to review the Court of Appeals’ decision.

Filing the petition does not guarantee SCOTUS will here the case. Only one in one thousand cases are heard. Four justices must agree to hear the case before it will be heard.

You may review the petition here:Petition to the Supreme Court

KY Supreme Court Denies Discretionary Review

The Kentucky Supreme Court sent a very short letter to Edwin Kagin, notifying him that they have denied a discretionary review. This means that the Kentucky Homeland Security Law stands at this time. One judge dissented and said there should have been a discretionary review. I believe that there had to be three judges request a discretionary review before a review would have occurred.

This does not mean that the Supreme Court has validated the Appeals Court decision, rather, it simply means that they will conduct a review. This does have the effect of leaving the law in place.

We plaintiffs have three courses of action: 1) Refile in federal court; 2) Request a review by the U.S. Supreme Court; 3) do nothing. I will keep you posted of any decisions regarding this case made by the American Atheists attorneys.

Plaintiffs File Motion for Discretionary Review

Edwin Kagin defends the constitution.

Edwin Kagin defends the constitution.

American Atheists and the individual plaintiffs have filed a Motion for Discretionary Review by the Kentucky Supreme Court. The text of the motion may be read here: KOHS Motion for Discretionary Review

Louisville C-J: Appeals court considers law crediting God for Kentucky’s security

Edwin Kagin defends the constitution.

Edwin Kagin defends the constitution.

Written by Peter Smith  

FRANKFORT, Ky. — According to the lawyers on opposing sides, the decision should be as easy as either affirming what everybody learns in grade school or dismissing a profession of faith in the “Flying Spaghetti Monster.”

But it won’t be easy for the ones who actually have to decide the issue, according to the head of a three-judge panel of the Kentucky Court of Appeals.

The panel heard oral arguments Thursday over whether Kentucky law can mandate that the state declare its reliance upon “Almighty God” for its safety and security.

“The court is struggling with a difficult decision,” Senior Judge Ann O’Malley Shake said Thursday morning after lawyers quoted numerous court precedents that either allow or restrict the expressions of religion in the government sphere.

“The distinctions have been drawn with difficulty over the years, and will be in this case, I’m sure, as well,” Shake said.

At issue are laws passed in 2002 and 2006 — after the terrorist attacks of Sept. 11, 2001.

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

Ten Kentucky residents — one of whom has since died — filed suit in 2008 to challenge the law after it received publicity for the first time.

The appeals panel was hearing an appeal of Franklin Circuit Court Judge Thomas Wingate’s ruling in 2009 that declared the law to have “created an official government position on God,” in violation of the Kentucky and U.S constitutions.

But Special Assistant Attorney General Tad Thomas said there are more than 200 years’ worth of court decisions saying that governments have the right to make references to God in their documents. He cited the national motto, “In God We Trust,” and the Declaration of Independence’s opening words that people “are endowed by their Creator with certain unalienable rights.”

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“We have all heard these words since grade school,” Thomas said. He added that it would be “irrational” to interpret the Kentucky constitution’s section on religious freedom as barring references to God when the current version of the constitution itself contains such a reference.

Shake pointed out that the state’s emergency-management laws, which include the statutes in question, carry a misdemeanor charge for anyone who violates them. She questioned what would happen if an atheist became executive director of the Office of Homeland Security and balked at requirements to post the plaque and annual reports crediting Almighty God.

But Thomas said the law doesn’t require anyone to profess trust in Almighty God — it only reflects the statement of the legislators who passed the Homeland Security laws.

“It does not require the executive director to hold those beliefs,” he said.

He said the Homeland Security director serves at the governor’s pleasure and that it would be up to the governor to deal with a director who refused to credit Almighty God.

But Edwin Kagin, the national legal director for the group American Atheists, said the law’s intent was clear.

“Not religious?” he asked. “They have to be kidding. Of course it’s religious. It is part of a years-long attempt by the religious right in this commonwealth to violate the Constitution of the United States (and of Kentucky). … If it is simply harmless as they say, why are they making such a fuss out of it? Why not take (the plaque) down?”

He said if the law professed reliance on the Flying Spaghetti Monster — a fictional deity recently invented by a group of religious skeptics — “it would be obvious to everyone that this was improper and nonsensical.”

Kagin cited the Supreme Court’s 2005 decision barring displays that include the Ten Commandments in McCreary County, Ky., as allowing courts to consider whether lawmakers’ had religious intentions in passing a law. He said that motivation was clear in a friend-of-the-court brief filed by 96 of the state’s 100 states representatives in support of the belief that the United States is a “Christian nation.” Thirty-five of the 38 state senators signed on to a similar brief.

Thomas cited another Ten Commandments case — in which the 6th Circuit Court of Appeals upheld a display in Mercer County, Ky., — as affirming “200 years of U.S. Supreme Court jurisprudence that says government has every right to acknowledge the existence of an Almighty.”

Judge Thomas Wine questioned why the law declared faith in one God rather than including various deities. Thomas cited the long history of government documents referring to a single God.

Also serving on the panel was Judge Laurance VanMeter.

Shake said the panel would decide the matter as quickly but as carefully as it could.

Reporter Peter Smith can be reached at (502) 582-4469.

Lexington Herald-Leader: Ky. appeals court weighing God reference case

KY Homeland Security Plaque

By BRETT BARROUQUERE — Associated P ress

FRANKFORT, Ky. — A three-judge panel is weighing questions of God, public safety and whether putting the two in the same law amounts to a state’s establishment of religion.

In arguments before the Kentucky Court of Appeals on Thursday, attorneys for an atheist and a related national group and lawyers for Kentucky debated the case. Specifically, they talked about what prior references to God in the Declaration of Independence and Kentucky’s four constitutions meant for a law that created the Kentucky Office of Homeland Security, referencing a dependence on “Almighty God.”

Judge Ann O’Malley Shake told attorneys the court would carefully consider the case and expedite a decision.

At issue is Franklin Circuit Judge Thomas Wingate’s 2009 ruling that the phrase violates the U.S. and Kentucky constitutions of state-established religion. The law requires the Homeland Security director to post a plaque with the “Almighty God” reference in the department’s headquarters. Language in the 2006 legislation was inserted by state Rep. Tom Riner, D-Louisville, a pastor of Christ is King Baptist Church in Louisville.

Attorney Tad Thomas, representing the state, said the reference doesn’t necessarily make it a religious document.

“The secular purpose is asking for assistance in defense of the Commonwealth,” Thomas said.

Thomas said courts have consistently upheld that some references to God by government are permissible.

“So, how does this court distinguish between what is permissible and what is impermissible?” Shake asked.

Thomas also noted speeches made by presidents over 200 years.

“Since George Washington, every president in their inaugural speech referenced a deity to help assist and protect the nation,” Thomas said.

Attorney Edwin Kagin, who represented Michael Christerson and American Atheists Inc., said the language clearly calls for a reliance on God, making it an impermissible reference to religion.

“What if it said, ‘apart from reliance on the Flying Spaghetti Monster?'” Kagin said. “Then we would realize it is improper.”

Kagin also took exception to a brief filed by 35 state senators and 96 representatives urging the court to uphold the law, passed in response to the Sept. 11 attacks.

On rebuttal, Thomas said the founding fathers weren’t trying to ban all religious involvement in government, but rather the establishment of a single, state-sponsored church.

“This comes nowhere near it,” Thomas said.

Shake posed a question not addressed by the law.

“What if you had an executive director (of Homeland Security) who is an atheist?” Shake asked.

Thomas said that would raise “a whole set of issues,” but noted that the Homeland Security director is appointed by the governor, who would likely have to tackle the problem.

“I guess it would be up to the governor to take action,” Thomas said.

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