Request By:
Mr. Caywood Metcalf
Garrard County Attorney
Courthouse
Lancaster, Kentucky 40444
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written us that over the past several years the Fiscal Court of Garrard County from time to time has put rock and gravel upon church parking lots. The gravel and rock were paid for by funds collected in the form of county taxes or by funds that came to the county from the county road aid program.
You request our opinion as to whether such expenditures are legal.
The churches you describe are generally defined as religious societies "founded and established by Jesus Christ, to receive, preserve, and propagate his doctrines and ordinances." Black's Law Dictionary, 4th ed., p. 306. Concerning the forms of church government and the use of church properties, see
Kidwell v. Crawford, 298 Ky. 380, 182 S.W.2d 968 (1944) 971, 972.
Under § 171, Kentucky Constitution, taxes must be "levied and collected for public purposes only." (Emphasis added).
Judge Cullen, in City of Lexington v. Hager, Ky., 337 S.W.2d 27 (1960) 28, observed that taxes must be expended for the public purpose of the tax levying political unit of government.
Since the statutory powers of a county government, i.e., a fiscal court, do not include carrying on or promoting the work of the church or churches, we conclude at this point that a fiscal court cannot legally expend county tax money in putting rock and gravel upon church parking lots, meritorious as it might otherwise be in relation to spiritual and moral training. Cf. OAG 82-101, published, Banks-Baldwin, in which we concluded that county road equipment could be used on public graveyards and cemetery roads, pursuant to KRS 67.083(3)(q) and
Cave Hill Cemetery Co. v. Gosnell, 156 Ky. 599, 161 S.W. 980 (1913). However, we pointed out in that opinion that such road equipment could not be used on church lots where the use of the land for burial of the dead, or ground set apart for the burial of the dead, marking it, distinguishing it from the adjoining ground as a place of burial, was not involved.
The power statutes, KRS 67.080 and 67.083, nowhere mention "churches" as a legitimate area for expending county funds.
As concerns any state money for county road purposes, § 230 of the Kentucky Constitution prohibits any diversion of motor fuels taxes to any nonpublic road purpose.
In addition, § 5 of the Kentucky Constitution prohibits the giving of preference to any religious sect, society or denomination.
City of Ashland v. Calvary Protestant Episcopal Church, Ky., 278 S.W.2d 708 (1955) 712.
Finally, even though there is no Kentucky statute authorizing the county to place rock and gravel upon a church parking lot (we assume no public cemetery purpose is involved), the practical or ultimate effect of the placing of rock and gravel upon the church parking lot would be to promote or facilitate religion in an institutional sense. The mere parking is not ideological in nature as concerns religion. But the parking means people will park and go into the church for religious instruction. To that extent such placing of rock and gravel would violate the spirit of the First Amendment, U.S. Constitution, respecting the establishment of religion. See
Stone v. Graham, 449 U.S. 39, 66 L. Ed. 2d 199, 101 S. Ct. 192 (1980).
In that case the Supreme Court held that a Kentucky statute requiring the posting of a copy of the Ten Commandments in public schools violated the establishment clause of the First Amendment because of its having no secular legislative purpose. The court repeated its three-part test for determining whether a challenged state statute is permissible under the Establishment Clause of the United States Constitution:
"'First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . .; finally the statute must not foster "an excessive government entanglement with religion. "'
Lemon v. Kurtzman, 403 US 602, 612-613, 29 L Ed 2d 745, 91 S Ct 2105 (1971) (citations omitted).
"If a statute violates any of these three principles, it must be struck down under the Establishment Clause. We conclude that Kentucky's statute requiring the posting of the Ten Commandments in public school rooms has no secular legislative purpose, and is therefore unconstitutional."
Although there is no Kentucky statute providing for the county's rocking a church parking lot, by the analogy in principle, the parking lot improvement by the county would not meet the three-part test as above outlined. This is true in spite of the fact that the history of man is inseparable from the history of religion.
Engel v. Vitale, 370 U.S. 421, 434, 8 L. Ed. 2d 601, 82 S. Ct. 1261, 86 ALR2d 1285 (1962). See also Justice Rehniquist's dissent in
Stone v. Graham, supra. In
Everson v. Board of Education, 330 U.S. 1, 91 L. Ed. 711 (1947), the court wrote that Thomas Jefferson and James Madison led the fight against Virginia's tax levy for support of the established church. Elsewhere therein the court observed that no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
CONCLUSION
For the foregoing reasons relating to the statutes and constitutions, we conclude that the Garrard County Fiscal Court has no legal authority to put rock and gravel upon church parking lots.