News Article: Kentucky Clerk Is Due In Federal Court For Contempt Hearing

[Tide1986]

This is where I take my view that the Founders acknowledged that while it was permissible (however ill-advised) at the state level, but that the Federal level, they simply could not agree on which church to establish, so they avoided establishing any religion.

There are experts other than yourself that hold the same view as to the Constitutional intentions, or lack thereof, of preventing the establishment of government-sponsored religions at the State level.

 

[Tidewater]

There are experts other than yourself that hold the same view as to the Constitutional intentions, or lack thereof, of preventing the establishment of government-sponsored religions at the State level.

For me, it is interesting as an inquiry into political science/theory to examine what the Founders intended and, as the people stopped paying attention over subsequent decades, how far it has evolved from their intentions, sometimes into directions which proponents during the debate over ratification had assured their neighbors would never happen.

 

[chanson78]

This is where I take my view that the Founders acknowledged that while it was permissible (however ill-advised) at the state level, but that the Federal level, they simply could not agree on which church to establish, so they avoided establishing any religion.

I'll have to admit that I have been one of those who assumed since there was no explicit support in the founding documents of a federal level state religion, there wasn't any expectation that states could choose to create one at the state level. I am interested in learning a bit more regarding just how far they believed states rights should be able to go if you have any suggested reading material. Not necessarily with regards to only religion. I have read bits and pieces here and there, but from a historical survey perspective, it is rather shallow.

 

[Tidewater]

I'll have to admit that I have been one of those who assumed since there was no explicit support in the founding documents of a federal level state religion, there wasn't any expectation that states could choose to create one at the state level. I am interested in learning a bit more regarding just how far they believed states rights should be able to go if you have any suggested reading material. Not necessarily with regards to only religion. I have read bits and pieces here and there, but from a historical survey perspective, it is rather shallow.

You can do no better that Elliot's Debates. In the 1830s, Jonathan Elliot compiled the records of the debates in the states as they debated the Constitution. The records of Massachusetts, New York, Pennsylvania, Virginia, North Carolina and South Carolina were recorded verbatim. Fragments of the debates were recorded in Maryland, Connecticut and New Hampshire. Rhode Island's debates were recorded in a separate work by the Rhode Island Historical Society.
Elliot's Debates are also available from the On-Line Library of Liberty.
At any rate, I would recommend picking a state and reading the proceedings of its convention. Virginia is very good, because of the quality of the delegates (Madison, Henry, Randolph, Nelson, Page). Pennsylvania is also good (James Wilson), as is North Carolina (James Iredell).

Elliot is head and shoulders the most important (and sadly the least read) work in American history and political theory.

Secondary sources that are worth a read are St. George Tucker (Tucker's Blackstone), John Taylor's Tyranny Unmasked, Construction Construed and Constitutions Vindicated (although John Randolph said that the writings of his friend John Taylor need to be translated into English), Abel Upshur (A Brief Inquiry), and John C. Calhoun (The Disquisition and "The Fort Hill Address"). All are free and available on line.
On religious questions, the above paragraph may not be much use.
The states where the question came up were the most religious ones: Massachusetts and North Carolina.

 

[NationalTitles18]

You can do no better that Elliot's Debates. In the 1830s, Jonathan Elliot compiled the records of the debates in the states as they debated the Constitution. The records of Massachusetts, New York, Pennsylvania, Virginia, North Carolina and South Carolina were recorded verbatim. Fragments of the debates were recorded in Maryland, Connecticut and New Hampshire. Rhode Island's debates were recorded in a separate work by the Rhode Island Historical Society.
Elliot's Debates are also available from the On-Line Library of Liberty.
At any rate, I would recommend picking a state and reading the proceedings of its convention. Virginia is very good, because of the quality of the delegates (Madison, Henry, Randolph, Nelson, Page). Pennsylvania is also good (James Wilson), as is North Carolina (James Iredell).

Elliot is head and shoulders the most important (and sadly the least read) work in American history and political theory.

Secondary sources that are worth a read are St. George Tucker (Tucker's Blackstone), John Taylor's Tyranny Unmasked, Construction Construed and Constitutions Vindicated (although John Randolph said that the writings of his friend John Taylor need to be translated into English), Abel Upshur (A Brief Inquiry), and John C. Calhoun (The Disquisition and "The Fort Hill Address"). All are free and available on line.
On religious questions, the above paragraph may not be much use.
The states where the question came up were the most religious ones: Massachusetts and North Carolina.

Out of curiosity and because I haven't the time or knowledge to properly research in short order....Were there other voices of the day who went the other way? I ask because I've never seen you quote an opposing view from that time period - one who claimed the states had no power to establish a religion or similar view. Were there any who felt either that the states had no such power, that the Constitution prohibited it, or some such thought?

 

[TIDE-HSV]

For me, it is interesting as an inquiry into political science/theory to examine what the Founders intended and, as the people stopped paying attention over subsequent decades, how far it has evolved from their intentions, sometimes into directions which proponents during the debate over ratification had assured their neighbors would never happen.

I agree and it's enjoyable to discuss, not only for the roads not taken. At this point, it's an academic discussion. However, I feel that some participants forget entirely what the courts' decisions have actually been and start discussing as if the Supreme Court had not ruled at all. There is not one chance in 1,000 (add as many zeros as you like) that the Courts will uphold this county clerk's action. However, as I've said above, so long as dollars by the bucketful are pouring in to these forlorn causes and, probably, also to this lady, this dog and pony show will go on. The arguments that this lady's 1st amendment rights somehow trump the holdings of the highest court are, to a lawyer, absurd. Until there's a new court in some far-off time with a different view, civil servants need to leave their religions at home. In fact, unless the SCOTUS decides to send a message, certiorari will almost certainly not be granted...

 

[Tidewater]

Out of curiosity and because I haven't the time or knowledge to properly research in short order....Were there other voices of the day who went the other way? I ask because I've never seen you quote an opposing view from that time period - one who claimed the states had no power to establish a religion or similar view. Were there any who felt either that the states had no such power, that the Constitution prohibited it, or some such thought?

At the time, everyone, (and I have never read an opinion to the contrary from the period), everyone felt that this was a matter for each state to decide for itself. For example, as some have brought up, Virginia passed in 1786 a Statute on Religious Liberty, of which Jefferson was enormously proud. South Carolina disestablished the Church of England in 1790. Connecticut waited until 1818 and Massachusetts until 1834 to disestablish the Congregational church. I have never seen any Founder argue that, by ratifying the Constitution, they had somehow forbidden the states from having established religions. They would have found the argument absurd; it would have run afoul of their nearly unanimous views of the horizontal (state vs Federal) separation of powers.
Just because the general government does not decide a matter does not mean it went undecided (well, it did not by and large back in the Founding Era; most things were left to the states).

Still, religion was the topic of debate in the state conventions.
Let me give some example:
Massachusetts, from its beginning as a colony had established the Congregational Church. Everyone paid taxes to support the Church, whether they were Believers or not. At one point, failing to go to church was punishable by a fine. (I believe this practice had died out by the Revolution).

The rulers ought to believe in God or Christ, and that, however a test may be prostituted in England, yet he thought, if our public men were to be of those who had a good standing in the church, it would be happy for the United States, and that a person could not be a good man without being a good Christian.

Two men, at least did not support any test oath for public office.

Many appear to be much concerned about it [the exclusion of any religious test]; but nothing is more evident, both in reason and the Holy Scriptures, than that religion is ever a matter between God and individuals; and, therefore, no man or men can impose any religious test, without invading the essential prerogatives of our Lord Jesus Christ. Ministers first assumed this power under the Christian name; and then Constantine approved of the practice, when he adopted the profession of Christianity, as an engine of state policy. And let the history of all nations be searched from that day to this, and it will appear that the imposing of religious tests hath been the greatest engine of tyranny in the world.

Note that this man is a Reverend of the Established Church of Massachusetts.

It has been objected that the Constitution provides no religious test by oath, and we may have in power unprincipled men, atheists and pagans. No man can wish more ardently than I do that all our public offices may be filled by men who fear God and hate wickedness; but it must remain with the electors to give the government this security. An oath will not do it. Will an unprincipled man be entangled by an oath? Will an atheist or a pagan dread the vengeance of the Christian's God, a being, in his opinion, the creature of fancy and credulity? It is a solecism in expression. No man is so illiberal as to wish the confining places of honor or profit to any one sect of Christians; but what security is it to government, that every public officer shall swear that he is a Christian? For what will then be called Christianity? One man will declare that the Christian religion is only an illumination of natural religion, and that he is a Christian; another Christian will assert that all men must be happy hereafter in spite of themselves; a third Christian reverses the image, and declares that, let a man do all he can, he will certainly be punished in another world; and a fourth will tell us that, if a man use any force for the common defence, he violates every principle of Christianity. Sir, the only evidence we can have of the sincerity of a man's religion is a good life; and I trust that such evidence will be required of every candidate by every elector. That man who acts an honest part to his neighbor, will, most probably, conduct honorably towards the public.

 

[Tidewater]

I agree and it's enjoyable to discuss, not only for the roads not taken. At this point, it's an academic discussion. However, I feel that some participants forget entirely what the courts' decisions have actually been and start discussing as if the Supreme Court had not ruled at all. There is not one chance in 1,000 (add as many zeros as you like) that the Courts will uphold this county clerk's action. However, as I've said above, so long as dollars by the bucketful are pouring in to these forlorn causes and, probably, also to this lady, this dog and pony show will go on. The arguments that this lady's 1st amendment rights somehow trump the holdings of the highest court are, to a lawyer, absurd. Until there's a new court in some far-off time with a different view, civil servants need to leave their religions at home. In fact, unless the SCOTUS decides to send a message, certiorari will almost certainly not be granted...

I believe you are correct. Money spent on her defense is largely wasted (by which I mean, "spent on lawyers to no good purpose.")

(Please take that in the sense it was intended, in jest at your profession.)

 

[Tidewater]

Out of curiosity and because I haven't the time or knowledge to properly research in short order....Were there other voices of the day who went the other way? I ask because I've never seen you quote an opposing view from that time period - one who claimed the states had no power to establish a religion or similar view. Were there any who felt either that the states had no such power, that the Constitution prohibited it, or some such thought?

In North Carolina, they discussed religious test oaths a bit.

According to the modern definition of an oath, it is considered a "solemn appeal to the Supreme Being, for the truth of what is said, by a person who believes in the existence of Supreme Being and in a future state of rewards and punishments, according to that form which will bind his conscience most." It was long held that no oath could be administered but upon the New Testament, except to a Jew, who was allowed to swear upon the Old. According to this notion, none but Jews and Christians could take an oath; and heathens were altogether excluded. At length, by the operation of principles of toleration, these narrow motions were done away. Men at length considered that there were many virtuous men in the world who had not had an opportunity of being instructed either in the Old or New Testament, who yet very sincerely believed in a Supreme Being. and in a future state of rewards and punishments. It is well known that many nations entertain this belief who do not believe either in the Jewish or Christian religion. Indeed, there are few people so grossly ignorant or barbarous as to have no religion at all. And if none but Christians or Jews could be examined upon oath, many innocent persons might suffer for want of the testimony of others.

After citing a case in England in which a Hindu swore, not on the Bible, but by touching the foot of a Hindu priest, and was considered to have sworn legally.

It was accordingly held by the judges, upon great consideration, that the oath ought to be received; they considering that it was probable those of that religion were equally bound in conscience by an oath according to their form of swearing, as they themselves were by one of theirs; and that it would be a reproach to the justice of the country, if a man, merely because he was of a different religion from their own, should be denied redress of an injury he had sustained. Ever since this great case, it has been universally considered that, in administering an oath, it is only necessary to inquire if the person who is to take it, believes in a Supreme Being, and in a future state of rewards and punishments. If he does, the oath is to be administered according to that form which it is supposed will bind his conscience most. It is, however, necessary that such a belief should be entertained, because otherwise there would be nothing to bind his conscience that could be relied on; since there are many cases where the terror of punishment in this world for perjury could not be dreaded. I have endeavored to satisfy the committee. We may, I think, very safely leave religion to itself; and as to the form of the oath, I think this may well be trusted to the general government, to be applied on the principles I have mentioned.

 

[92tide]

saw this and thought it was funny

 

[Tidewater]

saw this and thought it was funny

Good point.

 

[92tide]

some more

 

[AUDub]

_lol:

 

[TRUTIDE]

I agree and it's enjoyable to discuss, not only for the roads not taken. At this point, it's an academic discussion. However, I feel that some participants forget entirely what the courts' decisions have actually been and start discussing as if the Supreme Court had not ruled at all. There is not one chance in 1,000 (add as many zeros as you like) that the Courts will uphold this county clerk's action. However, as I've said above, so long as dollars by the bucketful are pouring in to these forlorn causes and, probably, also to this lady, this dog and pony show will go on. The arguments that this lady's 1st amendment rights somehow trump the holdings of the highest court are, to a lawyer, absurd. Until there's a new court in some far-off time with a different view, civil servants need to leave their religions at home. In fact, unless the SCOTUS decides to send a message, certiorari will almost certainly not be granted...

I do not think that she is arguing that her beliefs trump anything. I think she is arguing that she is entitled work without abandoning her beliefs under Title VII of the Civil Rights Act of 1964. With Religious Freedoms Restoration Acts being passed by her state of KY, I think she has much better odds than you proclaim.

Both the courts ( American Postal Wkrs. Union v. Postmaster General ) and the DOJ have weighted in on this. Congress and many of the states have passed some version of RFRA. Her fate is by no means a done deal.

From the DOJ...

Combating Religious Discrimination And Protecting Religious Freedom

Religious Discrimination in Employment

People should be hired or not hired because of their skills and merit, not because of their faith. And people should not be forced to choose between their faiths and their jobs.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in public and private employment. It also requires employers to make reasonable accommodation of employees' religious observances and practices, unless doing so would cause the employer undue hardship. The Civil Rights Division has responsibility for bringing suits under Title VII against state and local governmental employers.

I predict that the word "accommodation" will be a key player here. There is still a lot to play out.

 

[selmaborntidefan]

saw this and thought it was funny

This is too awesome.

But how do we know he didn't like fat bottomed girls?

 

[Jon]

I do not think that she is arguing that her beliefs trump anything. I think she is arguing that she is entitled work without abandoning her beliefs under Title VII of the Civil Rights Act of 1964. With Religious Freedoms Restoration Acts being passed by her state of KY, I think she has much better odds than you proclaim.

Both the courts ( American Postal Wkrs. Union v. Postmaster General ) and the DOJ have weighted in on this. Congress and many of the states have passed some version of RFRA. Her fate is by no means a done deal.

From the DOJ...


I predict that the word "accommodation" will be a key player here. There is still a lot to play out.

again

All she had to do was step back and allow her team to do their job, she refused. She could have easily made the accommodation for herself, but then how could she grandstand and show gay people how much she hates them?

 

[GrayTide]

This is too awesome.

But how do we know he didn't like fat bottomed girls?

I think I am somehow offended by your reference to fat bottomed girls. I'll have my attorney contact you.

 

[selmaborntidefan]

I think I am somehow offended by your reference to fat bottomed girls. I'll have my attorney contact you.

"I think I am somehow offended..."

I think we found the next President - make a reference to 'think'ing but never actually say.......anything.

 

[cbi1972]

"I think I am somehow offended..."

I think we found the next President - make a reference to 'think'ing but never actually say.......anything.

You just don't get the nuance.

 

[Tidewater]

again

All she had to do was step back and allow her team to do their job, she refused. She could have easily made the accommodation for herself, but then how could she grandstand and show gay people how much she hates them?

If an organization calls me asking for money for her legal defense fund, I think I'll go out and do something more worthwhile with my money, like buying alcohol or getting a tattoo.