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Court’s hypothetical questions may prove telling

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April 20, 2017

A series of rapid-fire, hypothetical questions from across the U.S. Supreme Court’s philosophical divide has provided encouragement to advocates of increased freedom for churches to participate in government programs that have a secular purpose.

During oral arguments Wednesday (April 19), both liberal and conservative justices offered alternative scenarios to a lawyer for Missouri in an important church-state case. The justices – at least some who seemed skeptical of the state’s position – proposed the examples as they considered whether the state’s exclusion of a church-operated daycare center from a playground resurfacing program constitutes religious discrimination.

The Supreme Court is expected to issue a ruling before its term closes in late June or early July.

The legal conflict involves the Missouri Scrap Tire Grant Program, which provides grants to non-profit organizations – minus church-affiliated ones – for safer, rubberized surfaces for children’s playgrounds. The state rejected the application of the Trinity Lutheran Church Learning Center in Columbia, Mo., from participation in the program because of its affiliation with the church.

The exclusion was based on a section in the state’s constitution that says “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.” Missouri is one of nearly 40 states that have such provisions, which are known as Blaine amendments.

Southern Baptist, father-and-son law team Michael and Jonathan Whitehead – co-counsels for the church – were encouraged after the arguments.

“[O]ver half of the justices seemed more receptive to the church’s arguments,” Jonathan Whitehead said in a written release. “Our legal team could not be more pleased or more optimistic for a victory.”

Local churches shouldn't be penalized by the state merely for being churches.

Michael Whitehead said, “You can never absolutely predict the vote just based on the justices’ questions and comments, but many observers are saying a 7-2 for the church is not unlikely.”

Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC), told Baptist Press in written comments, "Local churches shouldn't be penalized by the state merely for being churches.”

He expressed his gratitude for “the legal representation Southern Baptists Mike and Jonathan Whitehead have provided on behalf of Trinity Lutheran for the sake of religious liberty.”

“My hope is that the court will do the right thing and resolve these important constitutional matters, protecting religious liberty and empowering churches and religious organizations to serve their communities," Moore said.

The series of hypotheticals – offered by Associate Justices Stephen Breyer and Elena Kagan of the court’s liberal wing and Chief Justice John Roberts and Associate Justice Samuel Alito of the conservative wing — came during the defense of Missouri’s policy by James Layton, the former solicitor general of the state. Among the questions:

— What about police and fire protection for churches? The state is not giving money to the church in that case, and the protection is a public service, Layton told Kagan. He told Breyer, “I am not going to take the position that it permits” a city or state to withhold such protection, including public health, from churches.

Breyer asked, “If [the constitution] does not permit a law that [denies] money out of the treasury for the health of the children in the church, school, or even going to church, how does it permit Missouri to deny money to the same place for helping children not fall in the playground, cut their knees, get tetanus, break a leg, et cetera?  What's the difference?”

Layton replied, “The difference is that the establishment [of religion] concerns that motivate Missouri's policy do not apply in the police and fire context, but they apply here.”

The benefits in Breyer’s examples “are not selective, which they are [in the Trinity Lutheran case]; they are universal,” Layton said.

— What about federal grants to increase security for high-risk terrorist targets, such as synagogues and mosques? No, the Missouri Constitution would not allow such grants, Layton told Alito.

— What about tours of the state capitol for school groups with the exception of religious schools? He doubted such exclusion would be permitted under the constitution since everyone who goes to the capitol receives a tour, Layton told Roberts.

During the exchanges, Kagan told Layton, “There's a constitutional principle.  It's as strong as any constitutional principle that there is, that when we have a program of funding — and here we're funding playground surfaces — that everybody is entitled  . . .  to that particular funding, whether or not they exercise a constitutional right; in other words, here, whether or not they are a religious institution doing religious things. 

“As long as you're using the money for playground services, you're not disentitled from that program because you're a religious institution doing religious things.”

The “biggest surprise” of the arguments, Jonathan Whitehead said, was Kagan and Breyer’s “very open struggles about rules that would allow churches to be excluded from public safety programs just because they are churches. While everyone agreed the State shouldn’t let a church burn down to avoid ‘aid’ to houses of worship, none of the State’s explanations seemed to persuade the Court that this case was much different.”

Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty (BJC), acknowledged afterward the court “was struggling to find the right line here, but the line is the one that Missouri has drawn to separate the institutions of religion and government and prevent churches from being funded by the state, because churches are fundamentally involved in a religious exercise that should be protected.”

The BJC supported Missouri in a friend-of-the-court brief, as did Americans United for Separation of Church and State, National Education Association and Lambda Legal Defense and Education Fund among others.

The ERLC filed a brief in support of Trinity Lutheran. Other organizations backing the church in briefs included the American Center for Law and Justice, Becket, Christian Legal Society, National Association of Evangelicals, Union of Orthodox Jewish Congregations of America and 19 states.

David Cortman – senior counsel for Alliance Defending Freedom who argued on behalf of the church – told the justices the Missouri policy violates the First Amendment’s free exercise of religion clause.

The church was not seeking preferable treatment, Cortman told reporters afterward. “It was seeking equal treatment here.  . . .  Your status should be completely irrelevant when you approach the government for a neutral benefit. The government should be religion blind just like it’s race blind.

 “When the government’s engaging in safety benefit programs, it should want all kids to be safe,” he said. “It shouldn’t matter what their status is. It shouldn’t matter where they decide to attend school. And I think that’s the principle here that the state violated.”

Hollman told reporters, “This case is not about playground safety. This case is about a Missouri constitutional prohibition that prohibits aid directly to churches, not to religious individuals but to churches.”

The Supreme Court “has never upheld direct government grants to churches, much less required states to provide such funding,” she said. “And that’s what this case is about – whether or not a state has to pay for property improvements of a church despite 200 years of precedent and lots of practical considerations that argue otherwise.”

Missouri’s new governor, Eric Greitens, threw a wrinkle into the case April 13 when he instructed the Department of Natural Resources, which manages the tire grant program, to make religious organizations eligible to receive grants. Though the question of mootness was raised during oral arguments, there did not appear to be strong sentiment for refusing to rule on the merits of the case in the wake of Greitens’ action.

Both Whiteheads are members of Abundant Life Baptist Church in Lee’s Summit, Mo.

The case is Trinity Lutheran Church v. Comer.

Tom Strode

Tom Strode serves as a correspondent for Baptist Press. Tom and his wife, Linda, have been married since 1978. They have two children with wonderful spouses and five grandchildren. He is a graduate of the University of Missouri and Mid-America Baptist Theological Seminary. Linda and he live in Nashville, Tenn. Read More by this Author

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