Stone v. Graham
| Decision Date | 22 April 1980 |
| Citation | 599 S.W.2d 157 |
| Parties | Sydell STONE et al., Appellants, v. James B. GRAHAM, Superintendent of Public Instruction, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
William C. Stone, Kentucky Civil Liberties Union, Louisville, for appellants.
Edward L. Fossett, Dept. of Ed., Frankfort, for appellee.
Stuart A. Handmaker, Louisville, for Synagogue Council of America and the National Jewish Community Relations Advisory Council, amicus curiae; Leo Pfeffer and Phil Baum, New York City, of counsel.
Theodore H. Amshoff, Louisville, for Kentucky Heritage Foundation, amicus curiae.
The members of the court participating in the consideration of this appeal being equally divided, the judgment of the trial court must stand as affirmed without an official opinion of this court. SCR 1.020(1)(a). Justice Stephens declared himself disqualified by reason of his having participated in the controversy in his former capacity as Attorney-General. Justices Lukowsky and Sternberg and Chief Justice Palmore being of the opinion that the statute in question is invalid, would reverse. Their viewpoints are expressed in an opinion by Justice Lukowsky which is attached to this opinion. Justices Aker, Clayton, and Stephenson are of the opinion that the statute is valid, and they would affirm. Separate opinions by Justices Clayton and Stephenson expressing their respective viewpoints also are attached to this opinion.
The judgment stands affirmed, subject to the provisions of CR 76.32.
I agree with the trial judge of the Franklin Circuit Court when, in upholding the constitutionality of KRS § 158.178, he wrote:
(T)he fact that the Ten Commandments spring from a religious well does not in itself forever divorce their use for a secular purpose. We can think of no good reason why all or any part of the Bible may not be used for other than religious purposes, for secular purposes, for historical and literary purposes.
Basically, the Ten Commandments is a code of conduct which just happens to be rooted in Judeo-Christian history. For the state to use these particular "rules", if you will, to promote moral and legal behavior among its youth seems perfectly acceptable to me. I fail to see how this law advances religion beyond the fact that it may bring to one's attention the basic tenets of a particular scheme of Western philosophical thought. Nor do I see how this statute fosters excessive government entanglement with religion, with emphasis on excessive.
Justice Clark, speaking for the United States Supreme Court in Abington School District v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 1573, 10 L.Ed.2d 844, 860 (1963), stated:
(I)t might well be said that one's education is not complete without a study of comparative religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as a part of a secular program of education, may not be effected consistently with the First Amendment.
This statement has particular relevance to this case since the Commandments are presented objectively and as part of a secular program of education.
The knowledge, understanding and dissemination of philosophical and ethical ideas, and the exposure of students to the various political, moral and religious doctrines that are part of our heritage as human beings are certainly necessary and desirable goals in order to educate the young and help them become mature and informed adults. The Ten Commandments statute is not an invasion of a right; it is a cornerstone of knowledge upon which school boards, teachers, and parents may begin to build the intellectual foundations of Kentucky's youth.
It is my view that the constitutional wall separating church and state is in no danger from the effect of KRS 158.178. Tax money is not involved. Neither the school child nor the faculty member is required to do anything, and the Ten Commandments does have historical as well as religious significance. In my opinion these factors would withstand any First Amendment challenge.
I am perplexed by the major premise of the opinion of Justice Lukowsky. The major premise bases the result of that opinion solely on Section 5 of the Kentucky Constitution, particularly the "no preference" clause. I find no mention of a "particular creed" in the statute. We do not know, for the record does not reveal, the version of the Ten Commandments displayed in the schoolrooms. This is not in the record for the probable reason that none of the parties viewed Section 5 of the Bill of Rights of the Kentucky Constitution as a problem.
If I understand the posture of that opinion on "creed" as to stand for the proposition that the statute on display of the Ten Commandments offends Section 5 for the reason that Buddhists, Confuscianists, Hindus, Taoists, Shintoists, Sikhs, Jains and Zoroastrainists are creeds whose beliefs do not subscribe to the fundamentals of the Ten Commandments, then I can only say that a statute which required that the Preamble and the Bill of Rights of the Kentucky Constitution to be displayed in the classroom would be equally offensive to those "creeds" since the Preamble reads:
"We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution." (Emphasis added.)
Section 1 of the Bill of Rights reads:
Unless I am badly mistaken, the reference to "Almighty God" in both does not comport with the beliefs of the Buddhists etc. and in that respect would present the problem of Section 1 of the Bill of Rights of the Kentucky Constitution being in violation of Section 5.
I just do not believe that Section 5 should be a factor here at all. The statute withstands First Amendment challenge.
The sole issue before this court is whether the Commonwealth or its agents may require the Ten Commandments to be posted on a wall in each public elementary and secondary school classroom. I would hold that the Kentucky Bill of Rights does not permit such a mandatory display.
The 1978 General Assembly enacted KRS 158.178 1 which impels this controversy. Simply put, the statute places the duty upon the Superintendent of Public Instruction to post a copy of the Ten Commandments in every public school classroom. The statute makes this duty conditional upon the receipt of voluntary contributions made for such purpose to the state treasury. The drafters of the statute recognized the potential conflict between the interests of church and state, and attempted to finesse any religious motivation by a declaration to be placed on all copies that "(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."
The passage of this statute was perceived to be a challenge to freedom of conscience, and this litigation soon followed. The plaintiffs below, and appellants here, describe themselves as a Quaker, a Unitarian, a non-believer, a mother of school age children and public school teacher, two children of compulsory school age attending public schools, a Jewish Rabbi, and as taxpayers. They sought temporary and permanent injunctive relief to prohibit the Commonwealth from enforcing KRS 158.178 on the basis that it is unconstitutional. The Franklin Circuit Court restrained and later temporarily enjoined the Commonwealth from implementing KRS 158.178. After hearing the merits, the trial court adjudged KRS 158.178 to be constitutional and dissolved the injunction against the government. This appeal followed. We concurred with the sua sponte recommendation of the Court of Appeals for transfer to this court.
This recitation of the facts would be incomplete, however, without a description of a collateral effort to enforce KRS 158.178 de facto. The Commonwealth sought an opinion from the Attorney General concerning this statute. The Attorney General summarily stated the statute was constitutional. OAG 78-605. Further, the opinion approved private donations of copies of the Ten Commandments directly to the local school boards as being in compliance with the "spirit" of the statute. Following this opinion, an organization called the Kentucky Heritage Foundation actively began to solicit private funds to have copies of the Ten Commandments printed and posted in public school classrooms throughout the state. The Kentucky Heritage Foundation has endeavored to present the issue as a fait accompli, announcing in its amicus curiae brief that it has raised over $150,000.00, financed 15,000 framed copies which have been placed in all classrooms in 55 counties and in some classrooms in 48 other counties, and that it is working on the remainder.
The combative nature of this case underscores the inherent problems encountered whenever the state delves into religious matters or religion attempts to use the force of the state to further its evangelical aims. Freedom of conscience and of worship is the cornerstone of the foundation of our nation. There is no "official" church in this country; indeed, it is indisputable that many of our forebears came to America to escape the established church and religious oppression. It is likewise true that once having achieved religious freedom for themselves, certain religious groups became remarkably intolerant of those who held dissimilar religious views, and they sought to employ the...
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