Kentucky Clerk Needs a Constitutional Spanking

by Brendan Beery

There’s trouble in the Dummy Belt. A clerk in Kentucky is refusing to issue marriage licenses based on her mythological beliefs. She thinks that Juh-eeeeeeee-zuss commands her to eschew all the steamy mansex that her signature on a certificate might spawn. Oh the abomination!

I tire of lecturing conservatives about what is meant by state action, but here we go again. If you are the President or a member of Congress or a governor or a state legislator or a dog catcher or, oh, let’s say – a county clerk, then you don’t just work for the government; you are the government. That’s bad news if you’re no big fan of constitutional commands like equal protection and due process, as many conservatives aren’t. The reason that’s bad news is that you, as a state actor (a part of the government), are bound by the Constitution (unlike the rest of us citizens who earn our money in the private sector).

The county clerk at issue here, a tragically simple being called Kim Davis, seems to think that the First Amendment’s Free Exercise Clause gives her a “right” to practice her religion by imposing her dogmatic mindlessness on those she is sworn to serve. The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” The Supreme Court has long said that this restriction on Congress applies to all government at every level.

The First Amendment, like the rest of the Bill of Rights, does not confer upon individuals any license to do a certain act. Rather, it commands the government to stay away from us when we do. (Whenever a provision of the Bill of Rights requires that somebody do a certain act, it is the government, not the individual, who is commanded to do it.)

What the First Amendment says about religion is that the government must allow the people to practice their religious beliefs without interference. The First Amendment does not permit the government to practice (and impose) its own religion. In fact, the government is forbidden from practicing or imposing its own religion by that other part of the First Amendment – the part prohibiting the governmental establishment of religion.

Kim Davis has got herself on the wrong side of this equation. Since she is the government (not the people), she has no right to do anything; she has only an obligation to stay out of other people’s business.

That, of course, is something that conservatism (an ideology built on narcissism and self-centeredness) cannot countenance. So when a conservative becomes a state actor, we can expect what we see in Kentucky – the upside-down constitutional worldview under which it is the government clerk, and not the citizen applicant, whose religious beliefs matter.

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