Protecting Unbelief: Restoring Section Five of Kentucky's Constitution

Abstract

The Kentucky Supreme Court’s 2012 decision in Gingerich v. Commonwealth established that Section Five of Kentucky’s Constitution is coextensive with the First Amendment, protecting neither more nor less. But is this correct?

The text of Section Five, Kentucky’s unique story, the longitudinal history of Section Five’s lifespan over four constitutions, and the doctrines of federalism all point the other direction. Many of Kentucky’s earliest settlers arrived fleeing religious persecution in the East, and they followed Pennsylvania’s lead in firmly protecting liberty of conscience regardless of religious derivation. All three subsequent constitutions preserved a slightly strengthened version of the preceding charter’s protections, even after a strong effort to dilute them in the 1890 Convention. Yet the Gingerich Court neglected this history and instead read Section Five in pari materia with the First Amendment, even though the former predated the latter. In doing so, the Court essentially ratified the rejected proposal from the 1890 Convention and succumbed to the common temptation to further federalize our liberties. In fact, Kentucky’s Constitution is far broader than its federal counterpart and should be interpreted that way. Doing so will not only realize the dreams of Kentucky’s founders, but will relieve pressure on a U.S. Constitution not necessarily designed to safeguard every liberty the states already protect.

Keywords: kentucky, constitutional law, religious liberty, liberty of conscience, founders, conscience, history, state law, federalism, originalism, textualism, legislative history,