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A JOINT RESOLUTION to return for permanent display on the New State 1
Capitol grounds the granite Ten Commandments monument given to the 2
Commonwealth of Kentucky in 1971 by the Fraternal Order of Eagles. 3
WHEREAS, in 1971, the Kentucky State Aerie of the Fraternal Order of 4
Eagles donated to the Commonwealth of Kentucky a granite monument inscribed 5
with the Ten Commandments; and 6
WHEREAS, it remained on permanent display on the New State Capitol 7
grounds until the 1980s, when it was moved to storage due to a construction 8
project; and 9
WHEREAS, the monument remained in storage until 2000, when a joint 10
legislative resolution was signed into law that required it be returned to the New 11
State Capitol grounds for permanent display near the floral clock; and 12
WHEREAS, in 2002, applying the test established by the United States 13
Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), and its progeny, the 14
United States Court of Appeals for the Sixth Circuit in Adland v. Russ, 307 F.3d 15
471 (6th Cir. 2002), affirmed a District Court order prohibiting the enforcement of 16
the 2000 joint legislative resolution; and 17
WHEREAS, the monument was thereafter returned to the Fraternal Order of 18
Eagles and given to the care of the organization’s Hopkinsville, Kentucky, 19
chapter, which has kept it to the present time; and 20
WHEREAS, in 2005, the United States Supreme Court in Van Orden v. Perry, 21
545 U.S. 677 (2005), upheld the exhibition of an essentially identical Fraternal 22
Order of Eagles’ Ten Commandments monument on permanent display on the 23
state Capitol grounds in Austin, Texas. The Court held that Lemon was "not useful 24
in dealing with the sort of passive monument that Texas has erected on its Capitol 25
grounds," and instead focused on the "nature of the monument" and "our Nation’s 26
history." Id. at 686; and 27 UNOFFICIAL COPY 25 RS BR 408
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WHEREAS, in 2014, the United States Supreme Court in Town of Greece v. 1
Galloway, 572 U.S. 565, 575 (2014), upheld a town council’s practice of 2
beginning its public meetings with an invocation. The Court's majority opinion did 3
not even mention Lemon and instead held "the Establishment Clause must be 4
interpreted by reference to historical practices and understandings." Id. at 576; and 5
WHEREAS, in 2019, the United States Supreme Court in The American 6
Legion v. American Humanist Association, 588 U.S. 29 (2019), upheld the display 7
of a 32-foot tall Latin cross on state property erected as a World War I memorial. 8
The Court expressly rejected Lemon and established a "presumption of 9
constitutionality for longstanding monuments, symbols, and practices" that "use, 10
for ceremonial, celebratory, or commemorative purposes, … words or symbols 11
with religious associations." Id. at 51, 52, and 57; and 12
WHEREAS, in 2022, the United States Supreme Court in Kennedy v. 13
Bremerton School District, 597 U.S. 507 (2022), upheld the right of a high school 14
football coach to pray privately on the playing field after games. Citing American 15
Legion and Town of Greece, the Court held that the "shortcomings" of Lemon had 16
become "so apparent that this Court long ago abandoned Lemon and its 17
endorsement test offshoot." Id. at 534. Formally replacing Lemon, the Court held 18
"the Establishment Clause must be interpreted by reference to historical practices 19
and understandings," and that the "line that courts and governments must draw 20
between the permissible and the impermissible has to accord with history and 21
faithfully reflect the understanding of the Founding Fathers." Id. at 535-36; and 22
WHEREAS, the legal precedent under which the 2000 joint legislative 23
resolution’s mandate to return the monument to the New State Capitol grounds 24
near the floral clock has been abandoned by the United States Supreme Court and 25
is no longer good law; and 26
WHEREAS, the Ten Commandments monument is "one of over a hundred 27 UNOFFICIAL COPY 25 RS BR 408
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largely identical monoliths . . . distributed [by the Fraternal Order of Eagles] to 1
state and local governments throughout the Nation over the course of several 2
decades," Van Orden, 545 U.S. at 713; and 3
WHEREAS, "[s]uch acknowledgments of the role played by the Ten 4
Commandments in our Nation's heritage are common throughout America" and 5
"throughout . . . our Nation’s Capital," Van Orden, 545 U.S. at 688-89; and 6
WHEREAS, the United States Supreme Court’s "opinions, like [its] building, 7
have recognized the role the Decalogue plays in America's heritage," Van Orden, 8
545 U.S. at 689; and 9
WHEREAS, "Executive and Legislative Branches have also acknowledged 10
the historical role of the Ten Commandments," which "have an undeniable 11
historical meaning," Van Orden, 545 U.S. at 690; and 12
WHEREAS, "the Ten Commandments have had a significant impact on the 13
development of the fundamental legal principles of Western Civilization," House 14
Concurrent Resolution 31, 105th Congress (1997); and 15
WHEREAS, the Ten Commandments "have historical significance as one of 16
the foundations of our legal system," American Legion, 588 U.S. at 53; and 17
WHEREAS, "for largely that reason, they are depicted in the marble frieze in 18
[the United States Supreme Court’s] courtroom and in other prominent public 19
buildings in our Nation's capital," American Legion, 588 U.S. at 53; and 20
WHEREAS, the Ten Commandments have undeniable historical significance 21
in the history and heritage of the Commonwealth of Kentucky and the nation; and 22
WHEREAS, it is the historical practice and understanding of the 23
Commonwealth and the nation to acknowledge our history and heritage with 24
permanent depictions and displays on government buildings and grounds, 25
including the state Capitol and its grounds, and including displays of the Ten 26
Commandments; and 27 UNOFFICIAL COPY 25 RS BR 408
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WHEREAS, the Fraternal Order of Eagles has expressed its willingness to 1
return the monument to the Commonwealth for permanent display on the New 2
State Capitol grounds; 3
NOW, THEREFORE, 4
Be it resolved by the General Assembly of the Commonwealth of Kentucky: 5
Section 1. The Historic Properties Advisory Commission shall: 6
(1) Retrieve from the Fraternal Order of Eagles, Aerie 3423, Hopkinsville, 7
Kentucky, the Ten Commandments monument given to the Commonwealth of 8
Kentucky in 1971 by the Kentucky State Aerie of the Fraternal Order of Eagles; 9
(2) Return the monument to the New State Capitol grounds and place it in 10
the part of the New State Capitol grounds identified as Monument Park by the 11
Finance and Administration Cabinet, Division of Historic Properties, within 180 12
days of the effective date of this Resolution; and 13
(3) Maintain the monument as a permanent display in Monument Park. 14
Section 2. If for any reason the Commonwealth is no longer able or 15
permitted to exhibit the monument as a permanent display on the New State 16
Capitol grounds after it has been placed in Monument Park under Section 1 of this 17
Resolution, the Historic Properties Advisory Commission shall return the 18
monument to the Fraternal Order of Eagles, Aerie 3423, Hopkinsville, Kentucky. 19
Section 3. The Fraternal Order of Eagles shall bear no costs for the 20
monument’s return to and display on the New State Capitol grounds or its 21
subsequent return to and placement with the Fraternal Order of Eagles under 22
Sections 1 and 2 of this Resolution. 23