County Clerks and the Constitution

Ms. Kim Davis, County Clerk of Rowan County, KY, appealed to the Supreme Court asking them to stay a lower court’s ruling that she do her job, claiming to do so impinges upon her First Amendment rights (SCOTUS declined to hear her case). It is the County Clerk’s job to issue marriage licenses to county residents but, citing her Christian faith, she has refused to grant them to same-sex couples. Tax-paying, law-abiding, Rowan County-residing same-sex couples who fund her paycheck, but that’s secondary to my argument here. Here, I question her refusal to do her tax-payer funded job by invoking the First Amendment, and examine the original intent of the Framers of the Constitution.

Once upon a time I worked in Contract Management for a global telecommunications provider. A contract between two parties, be they you and me or between two (or more) companies, governs how they have agreed to conduct business, especially when things go wrong. If the language is vague or murky and one ends up headed into Court, the real work begins in establishing the original intent of the agreement, rather than the litigious result.

The Constitution of the United States is the contract by which our nation’s founders agreed to conduct business, if you will, and I wondered what lay behind that which is now codified in our great national contract? What was the Framers original intent in what they wrote and for which they were prepared to die? Did they intend to leave religion out of it? Were they believers in Jesus, as many claim? Was it their intent to found the United States on the Christian religion? In short what I’ve found so far is: absolutely YES, not so much, and emphatically, NO.

First, I looked afresh at the oft-cited First Amendment to the Constitution:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This looks clear enough: there shall be no national religion and the State cannot prevent one from practicing his or her faith. The State may not deny one’s right to speech. The State may not suppress the Press, prevent folks from gathering in protest, or prevent it’s citizens from questioning the Government. It is Ms. Davis’ contention that issuing marriage licenses to same-sex couples prohibits her right of the free exercise of her religion, yet I do not grasp how performing her job keeps her from the doors of her church, nor have I learned from any source that she has been prevented from worship. She is still free to worship the god of her choosing in the location of her choice. She has not been asked to enter into a same-sex marriage, she has been tasked with performing her job:  generating paperwork. How has her right to the free exercise of her faith been impinged? She is not a party to any marriage save her own – she is a clerk, nothing more.

So what about the intent of the Framers, vis-a-vis religion?

  • Thomas Jefferson famously removed all passages dealing with Christ’s divinity from the Gospels and created his own bible. He seemed to like Jesus a bunch, but I think at best we can call Mr. Jefferson a Diest.
  • John Adams, both an attorney and a Unitarian, as President approved the Treaty of Tripoli in which it is stated, “As the Government of the United States of America is not in any sense founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Musselmen; and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”
  • James Madison, primary author of the Bill of Rights, passionately defended his opposition to a state-established religion in his Memorial and Remonstrance Against Religious Assessments, as described here.

To me it is clear our Founding Fathers, even (maybe especially) the deeply religious ones profoundly distrusted the establishment of a national religion of any sort, for the simple reason they had witnessed the dangers and corruption that flourish in such an environment. They sought something better, desired to form something new: a land of Law and Reason, where people of all faiths could live and thrive, without the repression of a religious tradition in which potentially they had neither faith nor choice.

Ms. Davis, you are in contempt of the Supreme Court of the United States of America, a country with no established church and in which one citizen may not impose his or her faith (or it’s rules) upon another. The Supreme Court of the United States, whose charge it is to determine that which is just and legal under our Constitution has ruled that it is unconstitutional to deny the right of marriage to anyone based upon his or her sex. You are not being asked to participate in a marriage, you are being asked to do your job and generate some paperwork. I suggest you do your job or find another one that plagues your conscious less.


For an excellent educational resource and explanation of  the Intent of the Framers of the Constitution, this is a good sampling of their writings and influences as well as the foundational documents of the United States of America.

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