A Rebuttal to Justice Thomas in the Greece Case

May 19, 2014

In its recent Town of Greece v. Galloway decision the United States Supreme Court ruled that local governments do not violate the First Amendment when they open their meetings with prayer, even if those who lead the prayer do so according to their own sectarian beliefs about how to pray. As the time, place, and manner of prayer goes, I find that I benefit spiritually a great deal more from praying in blocks of time set apart for communing with God in a private or closely held setting by speaking to oneself and to God than I do from delivering a public oration as agenda item two before the city council in the municipal building. Nevertheless, the courts ruling is an important and a welcome one. However much ceremonial legislative prayer matters or does not matter to you, the meaning of the First Amendment matters to us all. So long as people of all faiths (including those whose faith presupposition is that there is no God) approach the city council on level ground, a city government does not violate the Establishment Clause of the First Amendment (Congress shall make no law respecting an establishment of religion) merely by acting in such a way as to acknowledge that its citizens regard religious faith as an important part of their community. Its always a blessing to the people when common sense prevails at the court.

And yet, although a majority of the court ruled in this way, not all of the justices did so for the same reasons. The concurring opinion by Associate Justice Clarence Thomas argues that the practice does not violate the Establishment Clause becauseand heres the startling and dangerous partit has no applicationwhere only municipal action is at issue. Thomas argues that the Establishment Clause is best understood as a federalism provision that applies only to the actions of government at the national level.

Not everyone spends a lifetime studying the ins and outs of constitutional law (and the world would be fairly beige if everyone did!), but the implications of Thomass position should alarm almost any citizen of this country. If the Establishment Clause only applies to the federal government, then Dearborn, Michigan, would be entirely within the law to declare itself an Islamic city so long as it still permitted Christians or Jews to worship freely within the city limits. Utah could establish Mormonism, Puerto Rico could establish Roman Catholicism, and Las Vegas could build a municipal shrine to Aphrodite.

I dont believe that Thomas is attempting to accomplish any of these outcomes. He advocates this point of view because he sincerely believes that this is the meaning, rightly interpreted, of the United States Constitution. He argues for this position from history, by comparison to other portions of the constitution, and by determining that the Establishment Clause protects a different party with regard to a different kind of right than does the Free Exercise Clause.

In his appeal to history, Thomas rightly notes that the United States first implemented the Establishment Clause in just the way that he advocates. Massachusetts, for example, retained its establishment of the Congregationalist Church until 1833, some fortytwo years after the Bill of Rights had gone into effect. Although our friends in Boston were the last to grant full religious liberty to their citizens, in the 1790s a whole host of states had religious establishments. Who can argue with Thomass observation that the relationship between church and state was far from settled at the time of ratification [of the Bill of Rights]?

Thomas also argues his point by citing favorably the courts application of the Tenth Amendment as a federalism provision. The Tenth Amendment reads The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Supreme Court has not made this provision binding upon the states, nor could it in any way that made sense. If the states possessed only the powers specifically given them in the Constitution, they would have precious little power. The effect of an amendment designed to empower the states would be turned upon its head to denude the states of their power. Precisely! Professor Thomas might say, And in just the same way, the Establishment Clause existed to protect state religious establishments, so it cannot be turned upon its head to prevent them. To use Justice Thomass exact words, The Federalist logic of the original Establishment Clause poses a special barrier to its mechanical incorporation against the States.

One reason why Thomas reads the Establishment Clause as a federalist provision regards his determination that the Establishment Clause does not purport to protect individual rights as the Free Exercise Clause does. Regarding the Establishment Clause, writes Thomas, the States [rather than individuals] are the particular beneficiaries.

At just this point I believe Thomas misreads both history and the implications of law. Whenever a state establishes a religion, it necessarily infringes upon rights to the free exercise of religion. This is true because, among other reasons, faiths are mutually exclusive and the free exercise of one necessarily implies the rejection of others. Consider, for example, the predicament that Queen Elizabeth would face were she to see the light regarding believers baptism. By virtue of Englands religious establishment, she is an Anglicannay, more than that, the head of the Church of England. By virtue of her conscience, however, she would suddenly be a Baptist. The law requires that she either sacrifice her right to the free exercise of her religious faith or sacrifice her right to full participation in her role in the government. The history of the fight for religious disestablishment is precisely the argument that religious establishments are tantamount to prohibitions against the free exercise of religion, creating the category of dissenters and punishing them with second-class citizenship unless they abandon the free exercise of what their consciences dictate with regard to their faiths.

Thomass comparison to the Tenth Amendment is likewise flawed. Application of the Tenth Amendment to the states is nonsensical in a way that application of the Establishment Clause is not. To deny that the states may exercise those powers left to the states is to joust with a tautology. To insist that states, counties (even parishes!), and municipalities may not have religious establishments is so easily conceived that we have been doing so quite nicely for nearly two centuries.

Finally, Justice Thomas has erred in his understanding of the historical record. Rather obliquely he has set aside what he admits is the most cogent argument in favor of incorporation [of the Establishment Clause among those elements of the Constitution that are binding upon the states]. Yes, at the time when the Bill of Rights was ratified in 1791, those advocating for religious liberty had not yet won the battle on all fronts. Yes, many states maintained religious establishments of one variety or another. Yes, the original framers of the Constitution probably intended to secure the entry of those states into the United States of America by permitting them to keep their state and local religious establishments intact. But regardless of what the nations religious landscape looked like in 1791, we must ask how it had changed by 1868.

Justice Thomas has revealed nothing extraordinary when he has shown us that the Establishment Clauses did not apply to the states in 1791. The default understanding of the Constitution of the United States in 1791 was that it did not apply to the states. That situation changed with the adoption of the Fourteenth Amendment in 1868. In 1791 there were established state churches all over; by 1868 they were entirely gone. In 1791, the United States had such limited ideas of the Bill of Rights as to think that they left room for chattel slavery of blacks; by 1868, the country had come to believe that our Constitution should secure the blessings of liberty for all Americans, even against the sometimes malevolent arms of the several states. It is the very heart of the Fourteenth Amendment to take that which had not applied to the states before and to apply it to them henceforth.

In his major work on the subject of religious liberty, Roger William argued that established state churches are the Beast of Revelation 17. Im unconvinced by Williamss exegesis, and I doubt that religious establishments are the great and ominous Beast. Of this, however, I have no doubts: Every religious establishment most certainly is a beast. Thankfully, it is the kind of beast that hasnt been seen in these parts for many years. Let us pray that good sense and good Constitutional law may keep it that way.

Bart Barber

Bart Barber has served as the pastor of First Baptist Church in Farmersville, Texas, since 1999. He is married to Tracy (Brady) Barber. Bart has a B.A. from Baylor University in their University Scholars program, an M.Div. from Southwestern Baptist Theological Seminary in Fort Worth, Texas, and a Ph.D. in … Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24