Case Type: Univerity of the Cumberlands v. Reb. Albert M. Pennybacker, et al (#2008-SC-000253-TG); and Vernie McGaha, Senator, Etc., et al v. Univerity of the Cumberlands, et al (#2008-SC-000285-TG)

CUNNINGHAM, J., CONCURRING: I write to concur with the excellent work of Justice Abramson, mindful that my writing can neither add to nor improve upon her well-written opinion.
Our majority opinion today deals primarily with the spending provision of Section 189 of our state constitution. But that provision is seeded in a religious context. That is why the trial court also based its findings on the guarantee of religious freedom in Section 5 of the Kentucky Constitution. The overarching principle guiding our enforcement of these constitutional directives is that of separation of church and state.

Therefore, I deem it needful for me to write in an attempt to dispel any abiding notion that courts, such as this one, in marking clearly the divide between church and state, are taking a legalistic swipe at religion.

Nothing could be further from the truth. Decisions like that endorsed by our majority here today have paved the way for religion to grow and prosper in this land of the free.
The history of religious freedom in this country can trace its steps to the embryonic days of our Republic.

It is not myth to believe that many of the original founders of our country came here seeking freedom from religious persecution. It is myth to believe that they always found it when they got here. Many of them, after weathering the tumultuous dangers of the trans-Atlantic crossing, faced governmental interference into their beliefs. The original colonial governments demanded that the early settlers support a state-sponsored religion. Virginia, for instance, originally taxed all households to support the Anglican Church, just as had been required in England.
In fact, many of the early colonies established government-run churches a great deal like the European countries from which believers had fled. Southern colonies named the Anglican Church (The Church of England) as the state church.

While the Puritans complained of the Anglican control, they did not afford religious freedoms to others. Consequently, many of the colonies of New England compelled their citizens to attend the local Puritan or Congregational Church. Dissent was stifled. Non-Puritan Christians, such as Catholics, and Quakers were sometimes fined, imprisoned, whipped and even banished.
The dissatisfaction of this type of intolerance planted the seeds for future reforms culminating in the First Amendment of our U.S. Constitution.But Roger Williams would not stand for it.

After being banished from England, he was again banished from Massachusetts in 1635. He promptly founded Rhode Island, which quickly established the separation of church and state. There, he also established the First Baptist Church in America which is still in existence on the campus of Brown University. Needless to say, Catholics, Jews, Baptists and others fled to this haven of religious freedom. It became both a refuge and example for future steps in this direction. Only fifty years later, William Penn did the same thing in establishing Pennsylvania. By the time of our Revolutionary War, that state had become home to over four hundred religious groups. The underlying force for these movements was separating government from religion. Such a notion was so popular that these colonies grew in leaps and bounds and showed to the world how peoples of divergent religious beliefs could live together in harmony. At the time of the Revolutionary War, there were still nine colonies with state-run churches. This unpopular yoke of spiritual repression was joyously thrown off by the successful rebellion which forged this country.

There has been no country since recorded time where religion has thrived and flourished as over the last 230 years in the United States of America. In addition to the Catholic Church, which claims over one-fourth of Americans as members, there are over 71 different Protestant churches self-reporting to the United States Census Bureau. These do not include the thousands of unaffiliated churches hidden in the nooks and crannies of our country, including the cinder block, “Nothing Fancy Holiness Church,” in a west Kentucky community. That is not to mention the sizable number of the Jewish faith, as well as Hindus, Muslims, Buddhists, and others.

All these creeds and groups, large or small, from the cinder block hovels of rural America to the gothic spires of Saint Patrick’s Cathedral in Manhattan, make their own equal claim to ecclesiastical purity.
Where else in the world is one able to find such a kaleidoscope of faith?

This is because of our fundamental belief as a nation that religion and state should co-exist in harmony with each other, but along distinct and separate tracks. Most importantly, under our constitutional framework, religion is allowed to breathe free of the enervating drag of government regulation, taxation and control.
By all accounts, the University of the Cumberlands is nothing short of remarkable. What began as a small, struggling, Baptist liberal arts college in the mountains has evolved into a thriving, beautiful campus and university.

Unfortunately, in this country, operating a major college sometimes requires more money than can be given by its benefactors. That is why many strictly religious schools have transformed into secular institutions. Brown University in Rhode Island; George Washington University in Washington, D.C.; University of Richmond in Virginia; Wake Forest University in North Carolina; Mercer University in Georgia; Stetson University in Florida; Belmont University in Tennessee; and Georgetown College in Kentucky are some examples of these. Many would say that we are fortunate that some religious schools like the University of the Cumberlands have stayed the course and have remained strictly religious schools, free from state entanglements. Many would say it should stay that way. Those many will support our decision here today.

There is a grand irony in this case which involves a Baptist supported college seeking a state supported pharmacy school.Baptists come from a long line of “Separatists.” They fled England to Holland and later to America to escape entanglements with the state.The real battle for religious liberty and separation of church and state was in Virginia, the Carolinas, and Georgia. In those colonies, Baptist
preachers were jailed for preaching. It is well-documented that Madison was influenced by the Baptists in drawing up the Bill of Rights – more especially the First Amendment’s separation of church and state. The Baptist vote was pivotal in the adoption of our Constitution and its subsequent Amendments.

Separation of church and state has been an axiom of the Baptists for centuries – The Philadelphia Confession of Faith (1689 & 1742); The New Hampshire Baptist Confession of Faith (1833); and The Baptist Faith and Message (1925).John Leland was a highly influential Baptist preacher and friend of both Thomas Jefferson and James Madison. Over several early decades of our Democracy, he preached fervently and eloquently for the separation of church and state. “The work of the legislature,” he declared, “is to make laws for the security of life, liberty and property, and leave religion to the consciences of individuals.”
The early Baptists, at least, believed that church and state are mutually beneficial only if they remain distinct and separate in the normal affairs of life. These deeply rooted tenets could provide the guideposts for our decision here today. They hold that the state provides a favorable atmosphere in which the church can do its work. And the churches, in turn, should produce, through their respective creeds, citizens who will contribute to a stable social order. At the same time, church and state are mutually exclusive.

Neither should seek to control the other or use it in filling its peculiar role.

Neither should propose to tell the other how to discharge its responsibility.

The church should not seek to use the state for its purposes.

The state should not commandeer the church for political ends.

The state should not favor one “religion” above another.

Taxes should not be levied against property used for religious purposes.

The church should not receive tax funds for use in discharging its educational, healing, or spiritual responsibilities.

This constitutional division of church and state has acted to save religious organizations from self-destructing from their own zeal. Religious schools are free to exist and function in accordance to their own moral and theological dogma. This includes the right to restrict their memberships and their campus academia to strict, sometimes even unpopular, religious views and activities. When state involvement and support begins to be part of their operations, this freedom goes away. We do not know what twists and turns pharmaceutical science may take over the next fifty years. It is not inconceivable that it may infringe upon the religious and moral beliefs of some – maybe even Baptists. If public funding and control creeps onto the campuses of religious colleges, the aims of those religious schools may be terminally compromised.

That is not to say that religion has not blended into our national government’s creation and experience. Marbled within the granite of this great republic is traditional reverence and respect to a Supreme Being in whatever form or name we reverently allude to this higher power. Religion, in some form, is as much a part of this country and its rich heritage as the towering pines of the northeast or the blooming magnolias of the south.

This religious faith has been woven so intricately into the whole cloth of the rich American experience that it cannot be removed without unraveling and disintegrating the rich fabric of American life.
By the very definition of our beginning, and through the arduous pilgrimage of us as a people, a certain level of religiosity legitimately exists in our public institutions and symbols. This veil between religion and government in this country is, as the late University of Kentucky law professor Paul Oberst suggested, “a homogeneous wall.” Homogenization, in dairy terms, is an intricate blending of the whey and the cream into an inseparable whole. So, in terms of a “homogeneous wall” of separation of church, the idea is that within this broad line which separates the two, there is an amalgamation where the spirit of religion co-exists with statecraft and will be given profound deference. “In God We Trust,” referencing a higher deity engraved upon coins, public buildings and images, as well as like words in songs, prose, and our Pledge of Allegiance, “Under God,” are some of these examples. Even some of our cherished national holidays, such as Thanksgiving and Christmas, are religious holidays.
But state sponsorship and support of religious schools is outside of the pale and crosses the line of this great divide.

No one takes issue with the admirable aim of the University of the Cumberlands in wishing to educate pharmacists for the southeastern part of our state. But from a political and practical standpoint, allowing public funding to flow across religious lines would create more competition between light houses than already exists today between our state and regional colleges and universities. It would provide fuel for religious wars of sorts between competing and varying religious sects and denominations. If a pharmacy school at the University of the Cumberlands, why not a veterinary school on campus at Catholic Brescia College in Owensboro?

It would appear that our religious institutions have a daunting enough task, if it is to maintain spiritual sustenance and nurturing in a bewildered and fearful world, than to go head to head with public schools for the sticks and stones of campus buildings. Such struggles would dilute the intensity of their cause and drain much needed energy and resources from their critical mission.
The poet, George Greenleaf Whittier, caught the sentiment of many in his time, as well as today: “The Lord is God! He needeth not the poor device of man.” It can readily be added, “Nor the help of the state.” To say that government or courts affect the whereabouts of the Almighty, such as “putting God in schools” or “taking God out of schools,” is not only silly, but borders on sacrilege. Such a notion banners the lack of faith, rather than the essence of faith.

This wholesome and blessed balance between church and state can only be maintained through our courts. These grand constitutional commandments speak not only to the genius and wisdom of our forefathers, but also to their astounding reverence for the soul.Our humble decision here today is one small ripple enveloped in the marching billows of the ages.
Scott, J., joins.