Request By:
Mr. William S. O'Daniel
Commissioner
Department for Local Government
909 Leawood Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You seek our opinion in connection with an application for an Economic Aid Fund capital project filed with the Department for Local Government pursuant to KRS 42.330. Specifically your question is whether or not Kentucky Mountain Theater is prohibited from receiving public funds because of its "religious purposes"? It is not connected with any sectarian church organization nor are its presentations limited to dramas with religious themes.
The beneficiary agency is the Kentucky Mountain Theater, Inc., a non-profit organization, created pursuant to KRS Chapter 273. One of its purposes is "To produce, promote and sponsor out-door religious dramas and other forms of wholesome and educational entertainment for members of the general public in order to improve the general welfare and promote the religious and educational well-being of the citizenry of Bell County, Kentucky, and the surrounding areas." (Emphasis added).
The First Amendment to the Constitution of the United States provides in part:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . ."
The principle is also expressed in § 5 of the Kentucky Constitution: "No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; . . ."
Of course, the First Amendment is operative against the states by virtue of the Fourteenth Amendment. Engel v. Vitale, 370 U.S. 421, 8 L. Ed. 2d 601, 82 S. Ct. 1261 (1962). In Abington School District v. Schempp, 374 U.S. 203, 10 L. Ed. 2d, 844, 83 S. Ct. 1560 (1963), the court wrote: "The fundamental concept of liberty embodied in that [Fourteenth] amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. . ."
Justice Brennan, in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), emphasized that a governmental subsidy of "religious activities" would offend the religion clauses of the First Amendment. Chief Justice Burger, for the court, wrote this in Lemon [29 L. Ed. 2d 755]:
"In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: 'sponsorship, financial support, and active involvement of the sovereign in religious activity.' Walz v Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 (1970)
"Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v Allen, 392 US 236, 243 20 L Ed 2d 1060, 1065, 88 S Ct 1923 (1968);
finally, the statute must not foster 'an excessive government entanglement with religion. ' Walz, supra, at 674, 25 L Ed 2d at 704."
The central purpose of the Establishment Clause is to ensure governmental neutrality in matters of religion. Gillette v. United States, 401 US 437, 28 L. Ed. 2d 168, 91 S. Ct. 828 (1971). In Gillette, Justice Marshall for the court wrote: "The Establishment Clause stands at least for the proposition that when government activities touch on the religious sphere, they must be secular in purpose, evenhanded in operation, and neutral in primary impact." (Emphasis added).
Justice Black, for the court, in Engel v. Vitale, above, wrote, as to the purposes of the First Amendment [8 L. Ed. 2d 608], that:
"Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. "
Elsewhere in Engel, Justice Black said:
"Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religion and religious persecutions go hand in hand."
At this point, it can be seen that violations of the Establishment Clause arise when governmental activity has a non-secular purpose. Allen v. Morton, (U.S.C.A. - D.C., 1973) 495 F.2d 65, 77. A dictionary [Webster's 7th New Collegiate, p. 780] definition of "secular" is: "relating to the worldly or temporal - not overtly or specifically religious. "
In County of Los Angeles v. Hollinger, 34 Cal. Rptr. 387 (1963), the Bethlehem Star Parade Association had as its main corporate purpose the restoration of the original significance of Christmas to the Holiday Season. This was to be accomplished through the presentation of a non-commercial religious parade made up of floats based on biblical scenes from both the Old and New Testament. In December of each year the association put on an annual parade or pageant known as the Bethlehem Star Parade, the parade consisting of floats depicting the life and times of Jesus Christ and of bands and other musical organizations playing various hymns, songs and other musical compositions constituting a part of the Christian heritage. Realizing that the parade annually attracts many people to Los Angeles County and results in considerable free newspaper publicity about the county, the county entered into a contract with the association whereby the association agreed to produce a colored film of the parade and distribute copies of the film to various civic and service groups and to other organizations outside of California. This was all calculated to increase the trade and commerce in Los Angeles County.
The court, in County of Los Angeles, held the contract violated the principle of separation of church and state, as reflected in the federal and California Constitutions. The court said that in the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state. The court wrote that public money devoted to payment of religious costs, educational or other, brings the quest for more; and that it brings the struggle of sect against sect for the larger share or for any. The court said this was the very thing Jefferson and Madison experienced and sought to guard against, whether in its blunt or in its more screened forms. "The end of such strife cannot be other than to destroy the cherished liberty."
The case of Lowe v. City of Eugene, Or., 463 P.2d 360 (1969), involved the placing of a cross on city-park property. The court, in holding that this offended the First Amendment, wrote this at p. 363:
"While government can foster education in the history and cultural contributions of religions generally, and can act to protect the individual's right to his own personal expressions of religious opinion, the government has no business placing its power, prestige, or property at the disposal of private persons or groups either to aid or oppose any religion. "
From the Articles of the Kentucky Mountain Theater, it is apparent that its corporate purpose, in the producing of out-door "religous dramas" such as to contribute to the "religous well-being" of county citizens, is non-secular or sectarian in its publicly declared and avowed character. Thus it is our opinion that, even though it produces other than religious dramas, the financial support by the government with these coal funds runs afoul of the First Amendment. By the corporation's own declared purpose, the dramas in question will be of a "religious" nature. It is our belief that, to take the corporate purpose at its face value, the religious dramas will transcend the mere educational and cultural aspects of a fundamentally secular nature. And here, if this corporation is given such government aid, it will mean that the power, prestige and property of the government is placed at the disposal of a charitable corporation to aid some particular religion. That the First Amendment proscribes.
In summary, it is our opinion that the Kentucky Mountain Theater is prohibited by the federal and Kentucky Constitutions from receiving such public funds because of its "religious purposes."