Religious Belief and the Rule of Law

Townhall.com ^ | September 10, 2015 | Judge Andrew Napolitano

[Kaslin]

Shortly before the Labor Day weekend, a federal judge in Kentucky ordered the Rowan County clerk incarcerated for violating his orders. Five days later, he released her.

The judge found that the clerk, Kim Davis, interfered with the ability of same-sex couples in her county to marry by refusing to issue them applications for marriage licenses. Davis argued that she was following her conscience, which is grounded in a well-known Christian antipathy to same-sex marriages, which, in turn, is protected by the Free Exercise Clause of the First Amendment. Here is the backstory.

Davis is the clerk of Rowan County, Ky. Among her duties as county clerk is the issuance of applications for marriage licenses. When she assumed office, she took an oath to administer her duties consistent with the U.S. Constitution. Her job with respect to licenses is ministerial: issuing documents to those who legally qualify for them and filing the documents when they are returned to her.

Kentucky law requires that applicants for marriage licenses be unmarried, residents of Kentucky and at least 18 years of age. As a county clerk, Davis cannot add to these requirements another requirement -- namely, that the applicants be of the opposite sex. She cannot do that because the Supreme Court has ruled that marriage is a fundamental liberty, the exercise of which is protected by the Constitution, and within that liberty is the right to choose a same-sex marriage mate, uninterfered with by the state.

By adding her own requirement and using the force of law to enforce that requirement, she is frustrating the ruling of the Supreme Court, interfering with the fundamental liberties of marriage applicants, and violating her oath to uphold the Constitution, the final interpreter of which is the Supreme Court.

After Davis refused to comply with two of his orders to issue applications to those who comply with Kentucky law and not to add her own requirement, a federal trial judge found that she was in a state of civil contempt, and he incarcerated her.

Civil contempt is not a crime. Hence she was not sentenced to a jail term. The purpose of her incarceration was not punishment; rather, it was coercion. The courts have limited resources with which to coerce reluctant litigants to comply with court orders, and incarceration is one of them.

The court properly interpreted its duties under the Constitution, but was wrong to incarcerate her.

Davis is running a county clerk's office, not a church and not a legislative body. Moreover, her imposition of her own religious requirement upon the license applicants violates the well-respected and long-held First Amendment value of separation of church and state. She is free to believe as she wishes and to practice her beliefs, is free to impose her beliefs on her children and family, and is free to attempt to persuade others of the salvific value of her beliefs. But she is not free to use the force of law to further her beliefs by denying legal rights to those unwilling to accept them.

Suppose her religion forbade interracial marriage (as some Mormon Churches do). Could she deny a marriage license application to an interracial couple? Or, suppose she was a traditionalist Roman Catholic, who believed that Catholics should only marry other Catholics. Could she deny a marriage license application to a Catholic planning to marry a non-Catholic? Or, suppose her religion condemned the private ownership and use of guns (as some Quakers do). Could she refuse to issue applications for gun permits? The answers are obvious.

If her personal religious views could trump her obligations under the law when she is in a ministerial and not a discretionary government job, and other government officials similarly situated could do the same, then we'd lack the rule of law in America, and we would live instead under the discretion of bureaucrats.

But she should not have been sent to jail. Judges must do all possible to resist the temptation to incarcerate defiant litigants, because incarceration should be the last resort. Judges should enforce their rulings using the least force necessary, not the most force available. And history teaches that for those who conscientiously defy the law -- particularly for religious-based reasons -- incarceration is often fruitless.

I would have removed her authority to issue marriage license applications and assigned it to others in the Kentucky state government, and directed them to issue the applications in accordance with the law. That would have kept Davis free and her conscience clear, and permitted those in Rowan County to get married to whom they choose.

What about the St. Thomas More argument: "I die the King's good servant, but God's first"? That is not relevant here. More was tried, convicted and executed for his personal refusal to accept a heretical doctrine: that the monstrous King Henry VIII was somehow the head of the Roman Catholic Church in England. Even More admitted that one must do all one can to avoid martyrdom, even leaving public office knowing that one's successor will do what one has refused.

The Free Exercise Clause guarantees individuals the lawful ability to practice their religion free from government interference. It does not permit those in government to use their offices to deny the rights of those who reject their beliefs. That is the lesson for Kim Davis.

[cuban leaf]

...and that is not legal.

[ManHunter]

Thanks for your errant opinion, “Judge” Napolitano. Now go away. At what point did we amend Article I or III of the Constitution and confer legislative powers on the judiciary? An opinion is not a law. And people think Trump is a blowhard...

[Haddit]

http://www.nytimes.com/2014/02/25/us/holder-says-state-attorneys-general-dont-have-to-defend-gay-marriage-bans.html?_r=1
Feb 24, 2014
WASHINGTON — Attorney General Eric H. Holder Jr. on Monday injected the Obama administration into the emotional and politicized debate over the future of state same-sex marriage bans, declaring in an interview that state attorneys general are not obligated to defend laws that they believe are discriminatory.
Mr. Holder was careful not to encourage his state counterparts to disavow their own laws, but said that officials who have carefully studied bans on gay marriage could refuse to defend them.
Six state attorneys general — all Democrats — have refused to defend bans on same-sex marriage, prompting criticism from Republicans who say they have a duty to stand behind their state laws, even if they do not agree with them.

[Phlyer]

I wonder why the Judge ignored . . .

. . . the most important words in the Constitution: "We, the People . . ."

It does not start out, "We the judges and lawyers . . " and the final arbiter is not the Supreme Court, but We, the People.

I wonder why the Judge ignored . . . is because he's a judge and a lawyer. Once the Supreme Court makes a pronouncement, all other law falls away. At least, to the lawyers and judges. But We, the People have the final say.

I think she was wrong because she's drawing arbitrary lines not supported by Scripture on what is and isn't acceptable, and she doesn't have that authority. If she felt that the particular line in the sand she decided to draw didn't allow formal government recognition of homosexual couples, then she should have resigned. But that's not because the Supreme Court said so. They were wrong, too.

[IrishBrigade]

Six state attorneys general — all Democrats — have refused to defend bans on same-sex marriage

So, laws aren’t even worth the paper (or whatever medium) on which they are transcribed...what’s the damn point of even having them...?

[Seruzawa]

Er, Judge? We already live under the discretion of bureaucrats. The Dept of Interior for example closes BLM land illegally as they push their wacko leftist agenda. The list is endless.

[Sioux-san]

Davis brought her religious beliefs into the fray, but she was still upholding the existing law of Kentucky, which doesn’t just go away due to a SCOTUS ruling. Time must be given to the legislative body to address the ruling. These aggrieved parties were shopping for someone who would do just what Kim did. There is no end to how bad this is going to get. Gay couples are getting preference over heterosexual couples in adopting babies. Why not! The kid is just a pawn, a puppy, not deserving of any rights, especially the natural right and need to a mommy and a daddy. That’s the real end game here. Blow it all up, you selfish selfish people.

[TheDon]

Well said.

[marron]

Could she then deny a marriage license to heterosexual couples who've had a previous spouse?

I don't know. Did she?

Your question answers itself.

[marron]

The judge, a supposed libertarian, has no problem imposing homosexual marriage. He has no problem imposing something that does not exist, has never existed, and will never exist. But he will use the force of law and the threat of imprisonment to impose it. No problem.

[marron]

Is anyone calling for the judge to resign?

[Karl Spooner]

I see that Kim is returning to work on Monday. I wonder what happen if (when) the fags show up and demand her signature?

[Phlyer]

Basically, I agree with you. If she'd have said she was going to be guided by Kentucky law since the US Constitution does not include, among the enumerated powers, a delegation to the federal government of authority over the definition of marriage, she'd have been exactly right. If, despite that, they sent her to jail she would have been making a principled and entirely respectable stand.

However, for someone who has been married four times to claim any sort of God-derived moral authority is arrogance, not faith in a higher power.

Your basic point is valid as well. The statists are doing all they can to destroy the basic family unit because without a family, people will need more support from the state. This is both in the near term when children without an intact family need more welfare, and in the longer term when cultures without a family unit turn to gangs and crime. All of which requires more and more government of greater and greater power coupled with less and less accountability.

[Zionist Conspirator]

The concept of religious "belief" is a trap conservatives keep falling in to. To liberals, religion is ethno-cultural folklore, and therefore subjective and ethnically determined. To say there is a "one true religion" to them is like saying there is a "master race."

"Belief" is wrong on two points: first, we do not merely believe, but know that G-d spoke to Israel at Sinai. Second, what G-d commanded was not "belief" but LAW. Homosexual "marriage" is quite literally against the Law of G-d.

This is one area where chrstianity has unwittingly muddied up the clear waters of Torah. And because of it conservatives are appealing to eighteenth century enlightenment "rights" ideology for redress from the very people who invented that idea in the first place--the G-dless.

To put it mildly, a little more militancy is called for. But that is very hard for Americans, especially American Protestants.

[Yosemitest]

Americans will not stand with SODOMITES !

Radical Islamist" dictates from the Oval Office's ILLEGAL ALIEN IN CHIEF and his IRANIAN SPY ?

Take these GREAT WORDS with you.
Put them on posters along with the faces that said them.


Let us remember WHERE we came from.

Footnote: U.S. Constitution
Article I, Section 8: Uniform Immigration
Leviticus 19:34
Article II, Section 1: President Natural-Born
Deuteronomy 17:15
Article III, Section3: Witnesses
Deuteronomy 17:6
Article III, Section 3: Attainer
Ezekiel 18:20
Separation of Powers
Jeremiah 17:9
Three Branches of Government
Isaiah 33:22
Tax-Exemption for Churches
Ezra 7:24
Republicanism
Exodus 18:21

And let us NOT FORGET THESE GREAT MEN and WHAT they SAID !

“For what business, in the name of common sense, has the magistrate with our religion?
The state does not have any concern in the matter.
In what manner does it affect society in what outward form we think it best to pay our adoration to God?
The consciences of men are not the objects of human legislation.
In contrast with this spiritual tyranny, how beautiful appears our constitution in disclaiming all jurisdiction over the souls of men,
securing by a never-to-be- repealed section the voluntary, unchecked moral persuasion of every person by his own self-directed communication with the Father of spirits!”
– William Livingston, Constitution Signer


“Security under our constitution is given to the rights of conscience and private judgment.
They are by nature subject to no control but that of Deity, a
nd in that free situation they are now left.”
– John Jay, first Supreme Court Chief Justice



Original Intent of the First Amendment

Fisher Ames provided the wording for the First Amendment in the House of Representatives.
He did not say anything about “separation of church and state” in his debate, nor may it be inferred as his intent.
In fact, Fisher Ames said something that would be ruled unconstitutional because of the court’s modern application of that very phrase, “separation of church and state.”
He said,
“Not only should the Bible be in our schools, it should be the primary textbook of our schools.” xliv


Earlier, at the time of the Constitutional Convention, the founders discussed the individual rights of American citizens, which would later become the Bill of Rights.
How many times did they mention the phrase “separation of church and state?”
Zero.
They did not talk about it once.

The phrase “separation of church and state” was not even introduced into the American vernacular until a little over a decade after the First Amendment was adopted.
The phrase is exactly that - a phrase.
It is not a statute, it is not a law, and it is not an amendment to the Constitution.
It is simply a phrase lifted from a letter written by one of our Founding Fathers, Thomas Jefferson.

Jefferson was writing to the Danbury Baptist Association on January 1, 1802, in response to a letter wherein
they raised their concerns about religious liberty ever being infringed by the American government.
Jefferson responded that this would not occur because the Constitution builds “a wall of separation between Church and State.” xlv
So much has been erroneously inferred from that one statement.
(I encourage you to read David Barton’s article in the November 2003 issue of the Notre Dame Law Review for a more thorough treatment of Jefferson’s intent.)

Simply stated, Jefferson was using the phrase to describe the Free Exercise Clause of the First Amendment, which says, “or prohibiting the free exercise thereof.” The protection of our rights to live out our faith without government interference is what was being expressed both in the letter and in the First Amendment.


What About Separation of Church & State

The Supreme Court twisted the meaning of the First Amendment by isolating those eight words from this personal letter from Jefferson. xlvi
They did not even consider the letter in its full context. xlvii
Then, in 1962, the Court used the phrase to completely remove God from all governmental institutions. xlviii
It is amazing how the court can ignore history and rewrite it to fulfill their particular agenda and purpose.

We’ve Got the Wrong Guy

Perhaps even worse than misapplying Jefferson’s words is the fact that Jefferson’s words were used in the first place
as a means for discovering the intent of the First Amendment.
Actually, Thomas Jefferson and his words “separation of church and state” are irrelevant when it comes to interpreting the intended meaning of the First Amendment
because Jefferson did not give us the Constitution or the Bill of Rights.


When a biographer wrote to Thomas Jefferson, to congratulate him for his influence on the Constitution, his response was,
One passage of the paper you enclosed must be corrected.
It is the following.
‘I will say it was yourself more than any other individual that planned and established the Constitution.’
xlix


Jefferson pointed out to the biographer that
he “was in Europe when the Constitution was planned,
and never saw it
until after it had been established.”l


Nor was Thomas Jefferson one of the Congressmen that passed the Bill of Rights, which contains the First Amendment.

So, arguing what the framers’ intent was by using Thomas Jefferson as an expert witness on the First Amendment
is the same as
having a murder trial where the judge allows those who were not at the scene of the murder
to come forth and tell us what happened.
It is intellectually dishonest
and a piece of cleverly crafted creative history at best, to say that Thomas Jefferson’s words provide the intent for the First Amendment.
To understand the original intent of the First Amendment, you must scrutinize the thoughts of those who took part in the debate,
the ones who actually gave us the First Amendment.
That debate emphasized the need to avoid another Church of England being established in America.
In other words, they were trying to prevent a national denomination from being forced upon the citizens.
None of their comments reflected intent to separate religious principles from government or from the public square.
Just the opposite:
they wanted to foster free expression, not political oppression.

For those who still want to rely on Jefferson as their expert regarding the First Amendment, it should not go unnoticed that
exactly two days after writing his letter to the Danbury Baptists, he attended the weekly church service being held AT the U.S. Capitol.
These were religious services that he had helped to start and faithfully attended throughout the remainder of his presidency.li

It appears that Jefferson’s views were far removed from the interpretation of them by our modern courts today.
Would Jefferson,
a man who himself established and attended religious services on federal property while holding the office of the President,
really think that it was against the good of our nation or our citizens
for children to pray for their teachers, parents, and country at the beginning of each school day?
You decide.



Notes:
xliv. Compiled By Friends, Works of Fisher Ames 134 (Boston: T. B. Wait & Co., 1809).

xlv. Letter to the Danbury Baptist Association (January 1, 1802), in Thomas Jefferson, Jefferson Writings 510 (Merril D. Peterson et al. eds., 1984) (1781).

xlvi. Everson v. Board of Education, 330 U.S. 1 (1947).

xlvii. Thomas Jefferson, Letter to the Danbury Baptist Association, in Thomas Jefferson, Jefferson Writings 510 (Merrill D. Peterson et al. eds., 1984)
(1802): Believing with you
that religion is a matter which lies solely between man and his God,
that he owes account to none other for faith or his worship,
that the legislative powers of government reach actions only, and not opinions,
I contemplate with solemn reverence that act of the whole American people which declared
that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,”
thus building a wall of separation between Church and State.


l. Engle v. Vitale, 370 U.S. 421 (1962).

lii. Letter to Dr. Joseph Priestly (Washington ed., 441). < http://etext.lib.virginia.edu/etcbin/foley-page?id=JCE1686>.

l. Id.

li. William Parker Cutler and Julia Perkins Cutler, Life, Journal, and Correspondence of Rev. Manasseh Cutler (Cincinnati: Colin Robert Clarke & Co., 1888), Vol. II, p. 66, 119,
letter to Joseph Torrey, January 4, 1802.
Cutler meant that Jefferson attended church on January 3, 1802, for the first time as President.
Bishop Claggett’s letter of February 18, 1801, already revealed that as Vice-President, Jefferson went to church services in the House.

[Zionist Conspirator]

While I appreciate the sentiment, the Laws of G-d are universal. They apply at all times and in all places and in all countries regardless of who founded them or what their religion was.

Homosexuality isn't "un-American" . . . it is against the universal Law of G-d.

[Yosemitest]

I'm 100 percent in agreement.
But to defend against corrupt courts, that's the history of our "religious freedom",
and that lays the ground-work for "the rights of conscience and private judgment" .
It's JUST THAT SIMPLE !