Considering Holistic Religious Liberty as an Individual Right: Continuing the Conversation with Jonathan Cone

October 6, 2014

Marcus Fabius Quintilianus, in his De Institutione Oratoria, masterfully defined the rule against which we all must measure our writing: “We should not write so that it is possible for [the reader] to understand us, but so that it is impossible for him to misunderstand us.” By Quintilian’s just standard, I have failed Jonathan Cone, perhaps among others, and for that I apologize. I herewith seek to make restitution.

Remarkably, it seems that I have failed the worst at the most critical junctures, Cone having misunderstood me precisely there. I humbly offer correction at these points, seeking alongside those corrections to reassert the central thesis of my original essay: Together both the Free Exercise Clause and the Establishment Clause of the First Amendment establish a right to religious liberty that you, as an individual citizen of this country, possess.

To correct the misunderstandings before reiterating that thesis:

First, Cone asserted that he detected in my original essay “an assumption that…if something is not prohibited by the Federal Constitution, it is therefore lawful.” I regret that Cone inferred this from my article, for I certainly did not mean to imply it. I wrote, for example, “…Utah could establish Mormonism…” if Thomas’s view were to prevail. Cone cried foul, noting that the Utah state constitution precludes the establishment of Mormonism in the state.

The deficiency in my writing is simply this: I assumed that my readers would understand that if the people of Utah undertook to establish Mormonism as the official state religion, they would do so precisely by amending the text of their state constitution. Yes, their constitution as it now stands decrees religious liberty, but this hardly disproves my simple assertion that “Utah could establish Mormonism,” unless Mr. Cone will teach us about some legal theory beyond my ken by which the people of Utah are no longer able to amend their constitution. Of course, according to all of the Supreme Court justices except for Associate Justice Thomas, the Establishment Clause of the U. S. Constitution presently prevents the people of Utah from amending their state constitution in this way. If Thomas’s theory (and presumably Cone’s) were to win the day, what does Cone think would make it impossible for the people of Utah to amend their constitution in this way, if they were so inclined? Nothing comes to my mind. The same principal applies to every example that I gave.

The point is neither arcane nor irrelevant: It matters whether your rights are guaranteed by the Federal government on the one hand or by state, county, or local governments on the other hand. It matters, among other reasons, simply because it requires the consent and cooperation of more people to abrogate your rights on the Federal level than it does at any other level in our nation. The assumption that seems to be present in Mr. Cone’s essay is that it matters not at all whether your religious liberty is secured for you by the Federal Constitution, by the constitution of your state, by local ordinance, or by the covenant of your home-owners association, so long as it is provided by someone. No, that’s not right either. The force of Cone’s argument seems to suggest not that it doesn’t matter, but that it would be far better to have religious liberty guaranteed to you by no authority other than your homeowner’s association, since an adverse ruling would only affect your neighborhood, and it would be so much easier to move across town to escape religious totalitarianism than to have to move across the country to a more friendly state. I demur, believing that the security of your rights depends to some considerable degree upon the size and strength of whoever is securing them. I rest much easier with a guarantee of religious liberty in the Federal Constitution than I would if that precious liberty were vulnerable to the whims of my mayor and city council.

Second, Cone has offered correction to my essay by reminding us that “In actuality, whether, and exactly how, the Fourteenth Amendment made the Bill of Rights enforceable against the States has been a highly debated question in Constitutional law.” I thank Cone for the reminder, and I can see why he was confused by my sentence in my original article: “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.”

Cone seems to think that I was trying to assert something along the lines of “It is the very heart of the Fourteenth Amendment to take all of that which had not applied to the states before and to apply it to them henceforth.” Instead, I was simply trying to state that “It is the very heart of the Fourteenth Amendment to take some of that which had not applied to the states before—and nothing other than that which had not applied to the states before—and to apply it to them henceforth.” Had I composed the original sentence in this way, I do not think that Cone would have been able to misunderstand me in the way that he did. I apologize for the imprecision of my writing.

I had hoped that the flow of my argument would make plain my meaning. Justice Thomas had appealed to the narrative of history to demonstrate that the Establishment Clause did not prevent the several states in 1791 from having religious establishments. At this point, Thomas, Cone, and I agree (and indeed, no sane and well-read person can disagree, I do not think). Thomas seems to use that argument—the fact that states were not bound by the Establishment Clause prior to the Fourteenth Amendment—as a part of his foundation for the claim that it does not bind them today, after the Fourteenth Amendment.

And yet, one cannot presume that those things which did not apply to the states before the 1860s do not apply to them today. Why? Because it is the very heart of the Fourteenth Amendment to change the way that at least some of the protections guaranteed by the Federal Constitution affect the operations of state governments. In other words, if we had been content for state governments to continue to relate to the Bill of Rights as they had since 1791, then there would have been no need for a Fourteenth Amendment. The practices of state governments with regard to religious establishments in 1791, therefore, demonstrates nothing ipso facto about whether the Establishment Clause of the First Amendment has rightfully been incorporated under the Fourteenth Amendment. That’s what I was trying to say, and I sincerely wish that I had said it more clearly the first time.

How, then, do we decide which provisions of the Bill of Rights ought to receive the benefit of incorporation under the Fourteenth Amendment? Thomas was arguing (and Cone is silent here) that incorporation should extend to the Free Exercise Clause and not to the Establishment Clause because he sees the Free Exercise Clause as codifying an “individual right” and the Establishment Clause as codifying a right for which “the States are the particular beneficiaries.” I believe that “whenever a state establishes a religion, it necessarily infringes upon rights to the free exercise of religion.” I am not the first to have offered this point of view, but I remain vigilant in it even after Mr. Cone’s essay.

In fact, I am indebted to Cone for his providing additional evidence to support my view. Cone approvingly cited this important case: “And while Nevada’s State Constitution does not contain explicit language forbidding the establishment of religion, it does protect the ‘free exercise and enjoyment of religious profession and worship without discrimination or preference.’ A federal court recently concluded that this language prohibits Nevada from establishing a State religion.” Do you see what happened there? A federal court concluded that a guarantee of free religious exercise is ipso facto a guarantee against state religious establishment.

If that is true—if a right to free exercise necessarily entails a ban against religious establishment—then it is nonsensical to argue that the Free Exercise Clause enshrines an individual right while the Establishment Clause does not. That which an individual right necessarily entails is necessarily an individual right.

You and I as individuals have the right for our local, county, state, and national governments not to have established churches. We have the right not to have our tax dollars spent to support other faiths. We have the right not to be represented by any other faith by mere virtue of our citizenship. We have the right to elect officials of any faith to any office at any level. We have the right to be elected ourselves to any office at any level without our being compelled by virtue of our office to corrupt our consciences by our entanglement with any established faith with which we might disagree. If we do not have those rights, then our rights to free exercise are conditional, applied only so long as we do not aspire to too great a role in our state or municipality.

A holistic view of religious liberty recognizes that free exercise and disestablishment are but two inseparable sides of the same coin. That coin of religious liberty is not mere pocket change; it is of precious value. We ought to be careful not to deface it on either side.

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