Concurring and Dissenting:
I concur with the portion of the majority opinion which affirms that portion of the Franklin Circuit Court’s judgment which found that American Atheists lacked standing based on its claim for damages by its members. However, I dissent from the remainder of the opinion.
I adopt the sound reasoning of the trial court. The trial court analyzed KRS 39G.010 under the Lemon test and the statute was found to have the impermissible effect of endorsing religion because it was enacted for a predominantly religious purpose and conveyed a message of mandatory religious belief. See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). KRS 39A.285 was analyzed by the standard articulated in Van Orden. See Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005). The trial court concluded that unlike an ephemeral, general reference to Almighty God nestled in the middle of a statute, KRS 39A.285 “places an affirmative duty to rely on Almighty God for the protection of the Commonwealth.” The court opined that the Kentucky General Assembly had effectively “created an official government position on God” beyond a general acknowledgement that people have historically looked to God for protection.
Respectfully, I disagree with the majority that this case is analogous to the Sixth Circuit case of ACLU of Ohio v. Capitol Square Review & Advisory Bd., 243 F.3d 289 (6th Cir.2001) (en banc). The Ohio state motto, which indicates that all things are possible -with God, is strikingly dissimilar to a statute which mandates reliance upon God to achieve statewide safety. The prior is a passive aphorism which places a duty upon no one. The latter is a legislative finding, avowed as factual, that the Commonwealth is not safe absent reliance on Almighty God. Furthermore, KRS 39G.010(2)(a) places a duty upon the executive director to publicize that assertion while stressing to the public that dependence upon Almighty God is vital, or necessary, in assuring the safety of the Commonwealth. This declaration is then given great publicity and emphasized by placement on a plaque prominently displayed at the state’s Emergency Operations Center; in the 2010 KOHS Annual Report under the heading “Protection Statement;” within KOHS training materials; and within a KOHS pamphlet that is distributed to the public.10 In addition, the Capitol Square case was decided on federal constitutional principles and this case must as well be analyzed based on Section 5 of the Kentucky Constitution, as discussed below.
I agree with the majority opinion that historical recognition of the role of religion in American life has been permitted by the U.S. Supreme Court. However, KRS 39A.285 and KRS 39G.010 go beyond merely acknowledging the historical role of religion and instead require dependence upon Almighty God to secure the Commonwealth’s safety. More troublesome though, is that the statutes are located within a chapter of the Kentucky Revised Statutes which further states “any person violating any provision of this chapter or any administrative regulation or order promulgated pursuant to this chapter for which another penalty is not specified shall be guilty of a Class A misdemeanor.” *762KRS 39A.990 (emphasis added). Therefore, failure to abide by the challenged statutes is a crime punishable by up to twelve months in the county jail.11 The Court in Lemon noted that, although a law “might not establish a state religion,” it could “nevertheless be one ‘respecting’ that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment.” Lemon v. Kurtzman, 403 U.S. at 612, 91 S.Ct. at 2111.
The Court also expressed that:
Manifesting a purpose to favor one faith over another, or adherence to religion generally, clashes with the understanding, reached ... after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens.... By showing a purpose to favor religion, the government sends the ... message to ... nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members
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McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 860, 125 S.Ct. 2722, 2733, 162 L.Ed.2d 729 (2005) (citations omitted) (emphasis added). Indeed, religious freedom means not only the freedom to practice one’s religion of choice, but also the freedom to actively remove oneself from the practice of any religion whatsoever. A legislative mandate squarely placing our Commonwealth’s security with an Almighty God, and legally requiring such a message to be publicized, is a direct affront to that freedom.
Although the majority opines that the statutes at issue do not “attempt! ] to compel belief or participation in any form of religious exercise, nor do[ ] [they] seek to prefer one belief over another,” they nonetheless unequivocally state a clear preference for “adherence to religion generally.” See McCreary County, 545 U.S. at 860, 125 S.Ct. at 2733. The statutes are a sweeping declaration that the Commonwealth will not survive absent reliance on Almighty God, that the citizens of the Commonwealth are to be so informed, and that failure to comply with the mandatory provisions may result in prosecution. This is a clear case of religious endorsement and “sponsorship.” See Lemon, 403 U.S. at 612, 91 S.Ct. at 2111.
Moreover, application of the “reasonable observer” test, as outlined in a more recent opinion of the United States Supreme Court, has been argued as appropriate. Salazar v. Buono,—U.S.-, 130 S.Ct. 1803, 176 L.Ed.2d 634 (2010) (challenge of a cross placed upon federal land by private persons [members of the Veterans of Foreign Wars] and the statute attempting to transfer that land to the private persons). “That test requires the hypothetical construct of an objective observer who knows all the pertinent facts and circumstances surrounding the symbol and its placement.” Id: at 1819-20. According to Amicus Curiae Ninety-six Kentucky State Representatives, under the reasonable observer test, a well-informed reasonable observer would be aware that the purpose of the challenged statutes before us would be “to acknowledge the admitted fact that our *763Republic has always, in times of crisis, sought the protection of a Higher Power.” However, by their very words, defenders of the statute acknowledge a purpose of the challenged statutes that is in no way secular. Accordingly, the challenged statutes fail to pass constitutional muster even under the reasonable observer test.
The United States Supreme Court has previously held that a Kentucky statute which required the posting of the Ten Commandments in public schools had a preeminent religious purpose in violation of the Establishment Clause. Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980). The Court found this to be true, even though a provision in the statute required that a footnote be included on the plaque which stated: “[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” Stone, 449 U.S. at 41, 101 S.Ct. at 193. The statutes before us offer no such footnote indicating an adoption of “Almighty God” as a historically recognized protector of our nation. If a footnote denoting secular application cannot make it so, then certainly these statutes, completely lacking of such a secular legislative purpose, cannot survive.
Lastly, and perhaps most significantly, Section 5 of the Kentucky Constitution mandates that “[n]o preference shall ever be given by law to any religious sect, society or denomination.” Ky. Const. § 5. “No preference” indicates a stricter adherence to the Establishment Clause and would preclude even legislative “aeknowl-edge[ment] [of] religion in a general way,” as the majority opinion identifies the statutes in question. The Court in Neal v. Fiscal Court, 986 S.W.2d 907, reiterated the opinion of Fannin v. Williams, 655 S.W.2d 480 (Ky.1983), which held that state provisions regarding religious establishment mandate a much stricter interpretation than the Federal counterpart. Although the facts of Neal are not an exact duplication of those before us, the sentiment remains. Religious establishment can take many forms. In Neal and Fannin, it took the form of educational funding; in this case it has taken the form of a state statute. The Constitutional mandate of “no preference” should be applied to all religious inclinations, regardless of the container in which they are delivered. The Kentucky Constitution further mandates that “[n]o human authority shall, in any case whatever, control or interfere with the rights of conscience.” Ky. Const. § 5. To declare that the safety of the Commonwealth can only be achieved by its citizens’ “reliance upon Almighty God,” the legislature has not only interfered with the rights of conscience, it has disregarded them altogether.
For the foregoing reasons, I would affirm the August 26, 2009, order of the Franklin Circuit Court in its entirety.
. See http://homelandsecurity.ky.gov/nr/ rdonlyres/064a0665-affa-4ada-8d65-91200e25 cc7b/0/eaeonkybrochure.pdf.
. Amicus Curiae Ninety-six Kentucky State Representatives argues that the statutes are merely resolutions which are not open to constitutional interpretation by this Court. Such an argument is weakened by the legislative requirement to make those "resolutions” pub-lie and emphasize their essential nature. Moreover, the very fact that a crime is committed should one not abide by the challenged statutes removes any merit from such an argument.