Louisville Courier-Journal on the Petition to the U.S. Supreme Court

An article on the Kentucky Homeland Security case now appears in the Louisville Courier-Journal.


Media Coverage of Ky Supreme Court Refuing to Hear Case

Lexington Herald Leader: Court Upholds Kentucky Law Requiring Reliance on God for Security

Louisville Courier-Journal: Kentucky can continue crediting god for homeland security

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.”

(Page 2 of 2)


“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.

Read more: http://www.kentucky.com/2011/02/24/1647006/ky-appeals-court-set-to-hear-god.html#more#ixzz1EuvF75sT

ReligiousTolerance.Org Sides with American Atheists

The First Amendment

The First Amendment

The website ReligiousTolerance.Org has a history of the American Atheist suit against the KY Homeland Security law. The site provides background information, links to media sources, and some analysis, including the following quote:

These laws are obviously in conflict with the First Amendment of the U.S. Constitution, and thus are unconstitutional. It has the state teaching not only that God exists, but that it is Yahweh mentioned in the Bible. During their oath of office, each of the legislators promised to follow the state and federal Constitutions. However, there were apparently sufficient legislators willing to violate their oath of office and pass the bill.

The website quotes Edwin Kagin, the National Legal Director for American Atheists, Ed Buckner, former American Atheists President, and State Rep. Tom Riner (D-Louisville), who is also a Baptist minister.

Courier-Journal Blog: History and the Homeland case

Charles Haynes of the First Amendment Center

Charles Haynes, Senior Fellow of the First Amendment Center

Peter Smith, religious writer for the Louisville Courier-Journal, recently had an interesting entry in his online faith blog. Since this blog grows every day, his entry relating to the Kentucky Homeland Security case will soon disappear. I have copied and pasted the entire blog below. It includes a favorable analysis of our position by Charles Haynes, senior scholar at the  First Amendment Center.

History and the Homeland case

By Peter Smith

Both sides are citing the same founders of the American republic in the ongoing appeal of state laws requiring the Kentucky Office of Homeland Security to acknowledge “reliance on Almighty God” for the state’s protection.

See today’s story on the appeal of a Franklin Circuit Court ruling in 2009 that struck down the laws. It’s now before the Kentucky Court of Appeals, and it’s drawn in scores of state legislators as well as interest groups that have filed briefs in the case.

Supporters of the laws cite references to the divine in the Declaration of Independence and in the words and actions of founders such as George Washington and James Madison.

Opponents cite warnings by Madison, Thomas Jefferson and others against the entanglement of government and religion.

Attorney Edwin Kagin’s brief against the laws cited a 1797 treaty with the Muslim ruler of Tripoli — whose ships were raiding Americans’ ships — stating that the United States is not a Christian nation. (This clause seems to be based on an argument that sounds familiar today: that America wasn’t fighting Islam but rather piracy against U.S. ships.)

The text reads:

“As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen,—and as the said States never entered into any war or act of hostility against any Mahometan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”

That treaty, Kagin said, was initiated under President George Washington and signed by his successor, John Adams, and approved by the Senate — making it national law. Then he argued that Thomas Jefferson’s support for a “wall of separation” between church and state and James Madison’s opposition to a mutually corrupting “alliance” between religion and government. Add them up, Kagin asserted, and the nation’s first four presidents opposed state religion.

On the other side, lawyers arguing for the law cite the Declaration of Independence’s invocations of “Nature’s God” and “divine Providence,” numerous prayers and invocations by Washington and other early presidents, and the long history of such things the “In God We Trust” motto and the use of legislative chaplains.

The brief filed on behalf of 96 Kentucky representatives quotes at length from an 1892 Supreme Court decision, “Church of the Holy Trinity v. United States.” The decision says in part:

“If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find every where a clear recognition of the same truth. Among other matters, note the following: the form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, ‘In the name of God, amen;’ the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing every where under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.”

Here are some comments from Charles Haynes, senior scholar at the First Amendment Center and a commentator on church-state law:

“The Supreme Court has often indicated that acknowledgement of God by government may in some instances be constitutional as examples of our history and tradition, a kind of ‘ceremonial deism’ that doesn’t rise to the level of establishment of religion. But the Court has also drawn the line at government endorsement of religion that go beyond historical acknowledgement. The law in question would appear to me, at least, to be an endorsement of religion that violates the Establishment clause of the First Amendment.

…Of course, religious ideas helped shape the founding of the United States. And, of course, most Americans were then and are today Christian. But the Framers were careful to found a secular state that protects religious liberty for people of all faiths and none. The Constitution nowhere mentions God or Christ, but it does mandate ‘no religious test’ for office in Article VI, thus ensuring that a ‘Christian nation’ could never be established. Did most of the Founders envision a society based on Christian ideals? Yes. But they also understood the radical implications of ‘no religious test’ — and were widely attacked for this provision. The ‘no establishment’ clause of the First Amendment further protects from any religion being established (on the federal level at first and then on all levels once the Supreme Court applied the FA to the states through the 14th Amendment)….

The Holy Trinity case involved the legality of a contract to hire a minister from England under an act of Congress limiting immigration. The statement about a ‘Christian nation’ is dicta; it is a gratuitous statement that is not essential to the Court’s holding. The Court had already decided the issue before remarking on the religious character of the country. Of course, the U.S. has some religious roots. And, of course, we have had a Protestant-dominated culture for much of our history (especially in the 19th century). But none of this supports the government privileging Christianity. Both sides can appeal to early historical documents for support, but well-established case law will guide how the courts decide this case. If the appeals court sees this requirement as going beyond mere acknowledgement of our historical roots and traditions, the court will uphold the lower court. If, on the other hand, the appeals court sees this a nothing more than a mention of deity by the state, then the court would reverse. Either way, the court will rely on Supreme Court precendents, not bogus attempts to re-write our history or the Constitution.”

Most of the briefs and related documents from all sides in the Homeland Security case can be found here at a blog managed by one of the plaintiffs.

Southern Poverty Law Center Claims KY Senators’ Lawyer’s Foundation Hosted Racist Speakers

Roy Moore's 5280 pound monument to the 10 Commandments.

Roy Moore's 5280 pound monument to the 10 Commandments.


Roy Moore, ex-justice of the Alabama Supreme Court

Roy Moore, ex-justice of the Alabama Supreme Court


The Foundation for Moral Law in Montgomery, Ala., hosted the 2010 Alabama Secession Day Commemoration.  According to the Southern Poverty Law Center, the event featured speakers tied to the League of the South, a neo-Confederate hate group that considers slavery “God-ordained” and advocates for “the cultural dominance of the Anglo-Celtic people and their institutions.” The Foundation for Moral Law’s president is defrocked Alabama Chief Supreme Court Justice Judge Roy Moore, who is more commonly known as the “Ten Commandments judge.” In the dead of night on July 31, 2001, Moore placed a 2½-ton stone monument with the Decalogue carved on it in the rotunda of the Alabama Supreme Court building, where he then presided. Moore was thrown out of office in 2003 by Alabama’s Court of the Judiciary after refusing to remove the monument, as he was ordered to do as the result of a federal lawsuit brought by the Southern Poverty Law Center. 

Moore is one of the attorneys representing 35 Kentucky State Senators in the Kentucky Homeland Security lawsuit. For further information, you may link to the Southern Poverty Law Center, the Southern Party of Georgia,  a blog with video from the event, and dailypaul.com. The event was held at Moore’s Foundation for Moral Law. The event claims that it was not sponsored by Moore’s foundation, but the foundation received all proceeds from the event. As noted on dailypaul.com

All Proceeds go to Foundation for Moral Law – NOT Judge Moore’s Gubernatorial Campaign 

This event is a GRASSROOTS event & is NOT sponsored by the Foundation for Moral Law