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coMMoNwEALTH OF KENTUCI{,Y FRANKLIN CIRCUIT COURT ii
DIVISION II CASE NUMBER 08-CI-1950 -.' ! '' '' ', *t:-;
AMERICAN ATHEISTS. INC.. ET AL.
PLAINTIFFS
v.
DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
COMMONWEALTH OF KENTUCKY. ET AL.
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DEFENDANTS
Come the Defendants, the Commonwealth of Kentucky, the Kentucky Office of Homeland Security,and ThomasL. Preston,in his official capacityas ExecutiveDirector of the Kentucky Office of Homeland Security (hereinafter referred to collectively as
'oCommonwealth"), counsel,and in supportof their Motion to Dismiss pursuantto CR 12'02 by for failure to statea claim upon which relief may be grantedor in the alternativefor Summary Judgmentpursuantto CR 56, and statethe following: BACKGROUND For more than 200 years all three branches of the United States government have acknowledgedthe role of religion in the American way of life. From GeorgeWashingtonto God or in has acknowledged Barack Obama,every American presidentin his inauguraladdress some fashion has called upon "Almighty God" for His protection and blessing of our nation.l in There are countlessreferences American history to electedofficials and other national leaders
Of 44 American Presidents,only 4 - PresidentsJohn Tyler, Millard Filmore, Andrew Johnson,and ChesterA. a the Arthur - were not inaugurated. eachof thesecases, incomingpresidentwas succeeding presidentwho died In in office, and was not electedas presidentin the next election.
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proclaiming their belief that the defense this nation, ffom enemies of both foreign and domestic, not only includesvigilance,strengthand temerity,but also the favor of an almighty being. Even President Franklin Piercestatedin his inauguraladdress, "There is no nationalsecuritybut in the nation's humble, acknowledged dependence upon God andhis ovemtling providence." September 11,2001 was a dark day in Americanhistory. The inability of the nation's securitynetwork to preventthe attackson New York and Washington,D.C. leadto the deathsof some 3500 citizens. As a result,the federalgovernment, every srategovernmentand many local govemmentsbegantaking stepsto ensurethe safetyand welfare of their citizens. The Kentucky General Assembly participatedin theseefforts by enacting statutesestablishingthe Kentucky Office of HomelandSecurity. KRS 39G et. seq. The Plaintiffs have filed this actionchallengingthe constitutionality KRS 39G.010and of KRS 39A.285. Specifically,Plaintiffs contendthat the aforementioned statutes in violation of are Section 5 of the Kentucky Constitutionand of the Establishment Clauseembedded the First in Amendmentto the United StatesConstitution. KRS 39G.010 outlines the duties of the executive director of the Kentucky Office of HomelandSecurityand,in relevantpart, states that the directorshall: Publicize the findings of the General Assembly stressing the dependence Almighty God as being vital to the securityof the on commonwealth by including the provisions of in its agenoy training and educationalmaterials. The executive director shall also be responsible prominentlydisplayinga permanent for plaque at the entranceto the state'sEmergencyOperations Center stating the text of KRS 394.285(3)... The challenged text of I(RS 39A.295states: The GeneralAssemblyherebyfinds that: (1) No govemmentby itself can guarantee perfect security from actsof war or terrorism.
not (2) Thesecurity well-being thepublicdepend just on of and
upon individual citizens of government,but rest in large measure preparation the Commonwealthand their level of understanding, and vigilance. (3) The safety and security of the Commonwealth cannot be achievedapart 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 hours in American history and the text of President most dangerous John F. Kennedy'sNovember 22, 7963, national security speech which concluded:"For as was written long ago: 'Except the Lord keep the city, the watchmanwaketh but in vain."' religion by endorsingbelief in God establish statutes Plaintiffs allegethat the challenged over non belief and by attempting to "indoctrinate Kentucky citizens and state employees in theistic religious beliefs." (Complaint,fl 16, p. 7). Furthernore, Plaintiffs have allegedthat the mere existence of the challengedstatuteshave causedthem to suffer both physically and emotionally from the belief that "their very safetyas Kentucky residentsmay be in the handsof fanatics, traitorsor fools." (Complaint, 17,p. 8). tl Defendantssubmit the challengedstatutescomply with both the Kentucky and United of States'Constitutionsand strenuously deny any allegationthat the very existence thesestatutes has causedany harm to the Plaintiffs, emotionalor otherwise. Since the issue of damagesis irrelevant to this Court's determinationof the constitutionalityof the questionedstatutes,the Defendants submit this Motion to Dismiss or in the alternativefor Summary Judgment. A which would be in keeping of finding by this Court upholding the constitutionality the statutes, with the clear weight of authoritysubmittedhere,would resolvethis litigation in its entirety'
ARGUMENT 1. Defendants are entitled to dismissal or summarv iudgment as there are no senuine issuesof material fact and the Plaintiffs' claims fail as a matter of law. A Motion to Dismiss should be grantedwhere it appearsthe pleading puty would be unable to prevail under any set of facts. Pari-Mutuel Clerks' Union of Kentucl