ACLU of Kentucky

Gingerich, et al. v. Commonwealth

Commonwealth v. Menno Zook, et al.

Kentucky Court of Appeals / Graves Circuit Court

            These two cases contain the consolidated appeals of nine separate Amish men in Graves County, Kentucky.  They were convicted of the crime of failing to display a slow-moving emblem (a fluorescent yellow-orange triangle) on their horse-drawn buggies.  These particular defendants are members of the Swartzentruber Amish community, a very orthodox branch of the Old Order Amish.  They maintain that the requirement of displaying a SMV emblem violates their sincerely held religious beliefs because it represents a worldly symbol that encroaches upon their adherence to the Biblical teaching to “shun” those things that are “of the world.”  County officials refused to consider the Swartzentrubers’ proposed alternative safety measure - grey reflective tape outlining the rear perimeter of the buggies - despite evidence establishing that the reflective tape is equally effective, if not more so, at improving the buggies’ nighttime visibility. 

            Currently,both sets of cases are pending before the Kentucky Court of Appeals.  It is our position that §§ 1 and 5 of the Kentucky Constitution provide greater protection for Kentuckians to freely exercise their religion than does the First Amendment to the U.S. Constitution (a question not squarely addressed previously).  Specifically, we believe that where, as here, a state law substantially burdens one’s sincerely held religious belief, it must be one that advances a compelling governmental interest and also be the least restrictive means of achieving that interest.  Because the evidence established an equally effective alternative to the slow-moving vehicle emblem (one that is less burdensome to the Swartzentrubers’ religious beliefs), we believe that the law is not “the least restrictive means”necessary; thus, it violates the Kentucky Constitution.

            Briefing for both parties has now been completed in Gingerich,et al., and we have filed our opening brief in Zook, et al.  The Commonwealth’s response is due mid-March and we hope to conduct oral argument in both cases later this year. Working with us on both sets of cases is ACLU of Kentucky cooperating attorney Tricia LeMeur.

ACLU of Kentucky and Phillips v. Jackson Co., Kentucky

United States District Court

            In 2009, we learned about several serious (and flagrant) religious liberty violations within the Jackson County courthouse.  Specifically, we learned that there were several stand-alone framed copies of the Ten Commandments displayed outside the entrance to many ofthe public offices located within the courthouse.  We also learned about a larger (approximately 3 feet x 5 feet) stand-alone framed copy of the Ten Commandments that hung on the wall directly behind the judge’s bench in the courtroom.  And finally, we uncovered a District Court judge’s practice of opening court sessions in Jackson County with sectarian prayers from the bench.

            After compiling sufficient evidence to prove these constitutional violations, we filed suit against Jackson County over the courthouse displays, demanded that the Administrative Office of the Courts immediately remove the courtroom display and took action to discontinue the Judge’s use of his official position to engage in courtroom prayer activities. Within approximately thirty days of our filing suit, Jackson County agreed to resolve the litigation in our favor and consented to a permanent injunction barring the stand-along Decalogues.  We also received confirmation of the removal of the large stand-alone Ten Commandments display in the courtroom and the Judge’s agreement to end his practice of engaging in judicial prayers from the bench.  In this case, we were assisted by ACLU of Kentucky cooperating attorney Brenda Popplewell.

ACLU of Kentucky, Walker and Howe v. McCreary Co., Kentucky

ACLUof Kentucky, Lee and Durham v. Pulaski Co., Kentucky

United StatesDistrict Court / Sixth Circuit Court of Appeals

            On Aug. 4, 2008, United States District Court Judge Jennifer B. Coffman issued permanent injunctions prohibiting Pulaski and McCreary Counties from posting three separate Ten Commandments displays in their respective courthouses.  This ruling represented the culmination of almost ten years of litigation over the Counties’ religiously-motivated attempts to post their Decalogue displays.

            In her opinion, Judge Coffman recapped the litigation history and noted that the Counties’ first displays, erected in 1999, consisted solely of framed copies of the Ten Commandments and were accompanied by overtly religious ceremonies.  After the ACLU of Kentucky initiated litigation on behalf of several McCreary and Pulaski residents, the Counties supplemented their Decalogues with additional documents that “were largely religious in nature” in an attempt to avoid First Amendment liability.  Judge Coffman agreed with the ACLU’s arguments regarding the Counties’ religious motivations and issued preliminary injunctions prohibiting both the first and second displays.  In response, the Counties removed their second displays, appealed the preliminary injunction decision and then, after obtaining new counsel, dropped their appeals and erected the third displays - the Foundations of American Law and Government display.

            The Foundations of American Law and Government displays consisted of “historical documents” including American (and earlier Colonial and British) political and patriotic documents, and the Ten Commandments.  Judge Coffman again granted a preliminary injunction barring these displays because the displays’ history showed that the Counties’ purpose in erecting them was predominantly religious in nature and thus in violation of the Establishment Clause.  Although the Counties appealed the injunction barring the third displays, both the Sixth Circuit Court of Appeals and the United States Supreme Court upheld Judge Coffman’s decision.

            In 2008, Judge Coffman noted that each of the Counties’ three displays violated the Establishment Clause because: (1) the Counties acted with a predominantly religious purpose in erecting them; and (2) the Counties failed to take sufficient action since the Supreme Court’s 2005 decision to “purge” the unlawful taint from their earlier conduct to justify the third displays.

            The Counties appealed Judge Coffman’s decision to the Sixth Circuit Court of Appeals.  In 2009, the parties completed their briefing of the issues and conducted oral argument.  We anticipate a ruling from the Court later this year.

ACLU of Kentucky, Meredith and Harper v. Grayson Co., Kentucky

United States District Court / Sixth Circuit Court of Appeals

            This case represents one of those in the second set of challenges to courthouse Ten Commandments displays.  In this case, U.S. District Judge Joseph McKinley granted our request for a preliminary injunction in 2001 barring the display before the case was stayed (held in abeyance) pending the outcome of the Supreme Court decision in the McCreary and Pulaski cases.  After the McCreary/Pulaski decision, the parties conducted discovery (i.e. factualdevelopment through witness depositions, etc.) and submitted their briefs to the court.  In Mar., 2008, Judge McKinley agreed with us that the County erected its display for a predominantly religious reason and granted our request for a permanent injunction prohibiting the County from posting its display.

            The County appealed this decision, and the parties briefed (and argued) the case before the Sixth Circuit Court of Appeals in Apr., 2009.  In a ruling issued in Jan., 2010, the Sixth Circuit agreed with the County and found that the display did not have the effect of endorsing religion, nor was there sufficient evidence to prove that the County erected the display for a predominantly religious purpose.  We have asked the Court to reconsider that portion of its decision directing final judgment in the County’s favor, however, because the procedural posture of the case prevented the Court from hearing additional,disputed evidence that we believe is indicative of the County’s religiously motivated purpose in erecting the display.  The Sixth Circuit is currently considering our request.

University of the Cumberlands

Kentucky Supreme Court

            The Kentucky Supreme Court is reviewing this case in which several plaintiffs successfully sued Kentucky over its funding of a private, religious college for the construction of a pharmacy school building and the establishment of a scholarship fund.  The trial judge,Judge Roger Crittenden, initially ruled that the 10 million dollar appropriation to construct the pharmacy school building violated §§ 5 and 189 of the Kentucky Constitution because it represented a direct payment of public funds to a religious school for educational purposes (contrary to the Constitution’s clear prohibition). Judge Crittenden also found that the permanent scholarship fund violated § 51 because the General Assembly did not reenact or publish at length various Kentucky laws amended by the provision.

            In conjunction with Americans United for the Separation of Church and State and the national ACLU’s Program on Freedom of Religion and Belief, we co-authored an Amicus brief in Mar., 2009, supporting Judge Crittenden’s ruling.  In our brief, we focused on the historical underpinnings of §§ 5 and 189 of the Kentucky Constitution and the framers’ intent in adopting such provisions.  The parties conducted their oral arguments in Sept., 2009 and we expect a ruling later this year.