Is this more than “In God We Trust”?

The Courier-Journal in Kentucky reports on an establishment clause appeal denied by the Kentucky Supreme Court.[1]   Americans for Atheists are taking their chances and appealing the High Court, and this case may have legs.

The justices, back in 2004, elided the constitutionality of the pledge in a case out of the Court of Appeals for the Ninth Circuit (Elk Grove Unified School District et al. v. Newdow, et al. 542 US 1) opting instead to rule that Newdow did not have standing to bring suit.  In 2010, the Ninth Circuit joined many of its brethren in supporting the pledge of allegiance as a patriotic ritual, not a forced prayer.  On the same day, the Ninth Circuit also denied that printing “In God We Trust” on US currency violates the establishment clause.  “Not every mention of God or religion by our government or at the government’s direction is a violation of the Establishment Clause,” wrote Judge Bea.[2]

From these cases, it seems that general and long-standing references to God are allowable even if required by the state.  The case in Kentucky takes this precedent farther.  In the establishing legislation for Kentucky’s Office of Homeland Security (KRS 39G.101(2)(a)), “requires the executive director of the KOSH to:

Publicize the findings of the General Assembly stressing the dependence on Almighty God as being vital to the security of the Commonwealth.”

The section further instructs that the “training and educational materials” include the legislative findings that state:

The General Assembly hereby finds that:

  1. No government by itself can guarantee perfect security from acts of war or terrorism.
  2. The security and well-being of the public depend not just on government, but rest in large measure upon individual citizens of the Commonwealth and their level of understanding, preparation, and vigilance.
  3. The safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God as set forth in the public speeches and proclamations of American Presidents, including Abraham Lincoln’s historic March 30, 1863, Presidential Proclamation urging Americans to pray and fast during one of the most dangerous hours in American history, and the text of President John F. Kennedy’s November 22, 1963, national security speech which concluded: “For as was written long ago: ‘Except the Lord keep the city, the watchman waketh but in vain.’”[3]

Additionally, a plaque “prominently displaying” these legislative findings would appear on the entrance of the Emergency Operations Center in Kentucky.

In reversing the lower court, the Court of Appeals of Kentucky likened the legislative findings to a case from the Court of Appeals for the 6th Circuit involving the Ohio state motto (“With God, All Things Are Possible).[4]  Quoting the 6th Circuit that said this motto was merely “lip service to the puissance of God”; there was no coercion.

But is this case truly the same as a motto on a dollar bill or at a state capital?  Is it similar to the pledge?  Or, does this insertion of language into the training and educational materials for a state agency cross the often blurry line between acknowledging the role the Christian God has played in our governmental history and purposely imposing that God on state employees?  Does this go further than the display of the Ten Commandments in Van Orden v. Perry (545 US 677 2005)[5]?  Perhaps the General Assembly’s findings are simply the legislative equivalent of dicta.  And perhaps the plaque itself memorializing those findings for all who enter the government building does not more than “pay lip service” without coercing.  Or, as the Kentucky Court of Appeals argued, it merely “makes reference to historic instances where American leaders have prayed for Divine protection in trying times.”[6]

Perhaps not.  The legislation does more than memorialize or pay tribute to historic references to Divine power.  It requires that all educational and training materials make use of these references.  For state employees, this is tantamount to indoctrination.  To work here, the success of your work is directly linked with a belief in God.  The capitalization of God versus noting the assistance of the divine strongly suggests that a Hindu employee should not invoke Shiva, Vishnu, or Brahma for grace.  The Lemon test is problematic and the Court has been deferential to state displays in various forms, but requiring the inclusion of fealty to God (or any god for that matter) pushes the limits of the establishment clause too far.

[3] Kentucky Office of Homeland Security; and Thomas Preston, in his official capacity as the Director of the Kentucky Office of Homeland Security v. Michael G. Christenson, et al.  No. 2009-CA-001650-MR 2012 page 3

[4] 243 F.3d 289 (2001)

[5] Page 186 CLCA-Rights, Liberties, and Justice 8th edition.

[6] Supra n. 3 page 9

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