Back in 2006, a Southern Baptist preacher who happens to sit in the Kentucky legislature introduced a law that would require the Kentucky Department of Homeland Security to declare in its training materials that security is unattainable without reliance on “Almighty God.”
American Atheists filed a lawsuit, claiming that the law violated both the U.S. and Kentucky Constitutions. The Franklin Circuit Court in Kentucky (the trial court) agreed with them and ruled that the law was unconstitutional.
Then, the law went to an appeals court. A three-judge panel there reversed the ruling by a vote of 2-1, declaring that the law was just fine by the First Amendment. (The dissenting justice, Chief Judge Shake wrote an opinion that supported the separation of church and state and cited U.S. Supreme Court precedent to that effect.)
That takes us to last month, when American Atheists filed an appeal to the Kentucky Supreme Court seeking a rehearing of their challenge to the Kentucky law.
We’re waiting to hear if that appeal will go through.
So what is this really all about?
The relevant case law, Lemon v. Kurtzman, created a test to determine whether the law violates the First Amendment prohibition on establishment of religion. If the government action doesn’t have a secular purpose, it’s unconstitutional. If it has the primary effect of either advancing or inhibiting religion, it’s unconstitutional. If it results in “excessive government entanglement” with religion, it’s unconstitutional.
With that in mind, it seems pretty obvious to me that the Kentucky law violates the federal Constitution under the current jurisprudence. As far as I can tell, the law loses on all but one point.
The purpose of the law is, according to the lawmakers, to remind everybody that Kentucky is not safe without relying on “Almighty God.” That doesn’t sound even remotely secular to me. Requiring Homeland Security to put references to their god and how powerful he is in the training materials certainly sounds like advancement of religion to me. Moreso, it sounds like indoctrination.
Even though only one of these prongs need be violated in order to render the law unconstitutional, I think we have two in the bag now. The third one is usually a higher bar, and I’m not sure it’s met here.
That’s because excessive entanglement is usually invoked when the government is providing some sort of financial assistance to a religious entity. There was no funding here. But it doesn’t matter. The Lemon test doesn’t care which prong was violated.
Plenty of people who don’t think that we should care about separation of church and state have asked me why we should care about this sort of thing. This case seems more egregious to me than some others, because it actively forces government employees to ingest religious material.
It strikes me as authoritarian. What do you think?
