A word about last week’s Kentucky Attorney General's advisory opinion addressing the propriety of posting the Ten Commandments — and the remarkable value of the Kentucky Open Government Coalition's online library in placing the opinion in context. The library enables the public to assess past analysis of this and other current legal issues.
The Kentucky Attorney General issued OAG 25-02 on February 20. In it, he advised:
1. Restoring a monument inscribed with the text of the Ten Commandments to the Capitol grounds in recognition of the role that the Ten Commandments have played in the history of our nation and Commonwealth likely would not violate the Establishment Clause.
2. The General Assembly likely may direct public schools in Kentucky to display a copy of the Ten Commandments in classrooms without violating the Establishment Clause provided that the manner and context of such displays “lack a ‘plainly religious,’ ‘pre-eminent purpose,’” but rather serve to highlight the “undeniable historical meaning” of the text.
https://search.app/3HNrn3LYBgGU9BaBA
A Louisville Public Media story by Sylvia Goodman and Joe Sonka about the Attorney General's advisory opinion states, "Kentucky Attorney General opinions do not have the force of law, but the office says 'public officials are expected to follow them.'"
https://www.lpm.org/news/2025-02-24/kentucky-ag-opinion-public-display-…
The Kentucky Open Government Coalition's law library offers additional insight on this controversial issue.
In 1981, then Kentucky Attorney General Steve Beshear was asked to "reconsider OAG 78-605 which dealt with KRS 158.178 and the posting of copies of the Ten Commandments on the walls of each public common school classroom in the Commonwealth.” It was the conclusion of then-Attorney General Steve Beshear in OAG 78-605 that “KRS 158.178 was constitutional and further that various arrangements existed by which local public school districts could implement the provisions of the 1978 legislation codified as KRS 158.178. However, as you know the United States Supreme Court, in a per curiam Opinion dated November 17, 1980, has concluded that KRS 158.178 is unconstitutional under the First Amendment Establishment Clause of the United States Constitution. Stone v. Graham, U.S., 101 S. Ct. 192 (1980). This opinion reversed the Kentucky Supreme Court's decision in Stone v. Graham, Ky., 599 S.W.2d 157 (1980)."
https://kyopengov.org/law/ag/1981/oag-81-12
That 1981 advisory opinion expressly withdraws the 1978 advisory opinion approving the practice.
https://kyopengov.org/law/ag/1981/oag-81-12
The earlier opinion in the coalition library is identified as withdrawn by a red circle enclosing an explanation mark and the clear statement and link, "Withdrawn by OAG 81-12.” This useful feature ensures the user’s ability to ascertain whether the authority under review is still “good.”
Because recent attorneys general have abandoned the practice of withdrawing advisory opinions, including — to the extent it reverses OAG 81-12 — OAG 25-02. Whatever these attorneys general think of decades of advisory opinions issued by their predecessors — which once numbered in the hundreds per year and now trickle out only a few a year — their failure to designate past opinions as “withdrawn,” “modified,” or “reversed,” where appropriate, has the effect of creating uncertainty and confusion based on conflicting authority emanating from the same office.
As to the effect of an advisory opinion, the current view that “public officials are expected to follow them” is somewhat oversimplified.
In 1978, the Attorney General issued a nuanced, and exhaustively researched, advisory opinion on the “legal effect or status of attorney general opinions in Kentucky.” The Attorney General, in OAG 78-192, concluded:
“While the opinions of the Attorney General of Kentucky are not legally binding on the recipient, there are several reasons why there is a tendency to follow them. First, ‘it is likely that the agency's principal motivation is to do what the law requires, and it is this motivation that causes the request for an opinion in the first place. When the agency receives an apparently well researched and well reasoned opinion advising a course of action, that course is likely to be followed.’ 1970 Wis. L. Rev. 298, 326. Secondly, an administrator may seek the protection of the opinion from public criticism, even if he is not protected from legal liability. The author [Arlen C. Christenson] of the Wisconsin Law Review article, 1970, p. 298, 327, concludes that ‘whatever the motivations and whatever the legal effect of an opinion, however, the important point here is that an agency requesting an opinion is likely to follow its advice.’
“It can be presumed that the legislature, in enacting KRS 15.020, had in mind that governmental officials seeking the opinion of the attorney general would follow well researched, considered, and written opinions of the attorney general in reliance upon the opinion. Indeed, it will not be presumed that the legislature did a vain or foolish thing by requiring the rendering of such opinions.”
https://search.app/QTxABbHoiLKiQSJ19
The Kentucky Open Government Coalition’s law library is a compendium of both advisory opinions and legally binding (if not appealed in the courts) open records and meetings decisions from 1977 to the present. It offers the public and the media a glimpse into decades of legal authority addressing a variety of controversial and noncontraversial subjects that was once accessible to law library patrons and well heeled lawyers.
The library includes weekly updates, a user friendly search feature, citations to prior opinions referenced, and subsequent opinions referencing, the opinion under review, as well as a “status check” feature — all free of charge.
This accomplishment earned Coalition co-director, and library developer and curator, Scott Horn, 2024’s University of Kentucky Scripps Howard FirstAmendment Centers James Madison First Amendment Award for expanding access to resources once only available to attorneys paying substantial subscription fees for services like Westlaw or Lexis.
Now you know the rest of the OAG 25-02 story — thanks, at least in part, to the Kentucky Open Government Coalition’s Law Library.
