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


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.”


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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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.