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.

Appeals Court Denies Amicus Curiae Oral Arguments

Senior Judge Anne O'Malley Shake

Senior Judge Anne O'Malley Shake, sitting as Special Judge by assignment of the Chief Justice

The Kentucky Court of Appeals has collectively denied the motions of a

Thomas Wine

Judge Thomas Wine, KY Court of Appeals

variety of Amicus Curiae (Friends of the Court) to present oral arguments in the appeal. 

The ACLU is the only Amicus Curiae supporting American Atheists. Amicus Curiae supporting the state include lawyers for 35 state senators, lawyers for 96 state representatives, and the Family Trust Foundation of Kentucky.  This ruling means that these parties will not be permitted to present oral arguments.

This ruling will prevent Ex-Judge Roy Moore from arguing for the senators. Roy Moore is best known for being removed from the Alabama Supreme Court
Judge Laurance VanMeter, KY Court of Appeals

Judge Laurance VanMeter, KY Court of Appeals

for ethics violations. Moore installed a 5280 pound granite monument to the 10 commandments in the Alabama Supreme Court rotunda.  He refused to follow the orders of federal judges to remove the monument. Moore also wrote the original draft of the Constitutional Restoration Act in 2004. This bill would have limited the power of the federal judiciary in religious liberty cases, and it would have required the impeachment and filing of criminal charges against federal judges who

ruled for separation of church and state.   Moore’s Foundation for Moral Law hosted the 2010 Alabama Secession Day commemoration, which included many speakers with ties to the League of the South and described as neo-Confederates by the Southern Poverty Law Center.