When the Government Does Theology

February 13, 2014

In the ongoing struggle between religious freedom and the Health and Human Services sterilization-contraception-abortifacient mandate, the arsenal of bad arguments deployed by the Obama administration has been very impressive. “Corporations have no claim to the freedoms protected by the Bill of Rights” is perhaps the most extreme of these views. With more seeming modesty, some advance the more limited view that unlike churches and other religious organizations (which are often legal corporations, of course), for-profit corporations have no freedom of religion under the First Amendment, even if the Supreme Court has said they do have freedom of speech and press under the same amendment. “Profit-making companies don’t pray and don’t worship,” the argument runs—as though prayer and worship exhausted the range of activities that may properly be called “religious.”

Or—another favorite—it will be argued that employers holding out against the HHS mandate for religious reasons are “imposing their religion” on their employees. Even some federal judges have committed this howler, which rests on a fundamental confusion about what it means to “impose” on people when they are still entirely free to do as they wish. Consider all those employers whose insurance plans did not cover abortifacient drugs before ObamaCare and the mandate came along. Were they imposing their religion on their employees? Did anyone think so at the time? The imposition of an opposing view on an unwilling actor is coming entirely from the government in these cases, not from the employers. Since the financial burden of compliance with the HHS mandate is not an enormous one for most employers, it is even natural to suspect that the true reason for the government’s imposition of it is precisely to “break” pro-life employers and make them serve a secular pro-abortion agenda.

As bad as it would be if the “companies don’t pray” and “you’re imposing your religion” arguments won the day, there is yet another feature of the government’s strategy that represents a danger to religious freedom. In order to win any of these mandate cases, the government must undertake to answer theological questions, and get a court to agree with its answers. And the government—including the judiciary—has absolutely no business asking such questions, let alone answering them.

In his famous “Memorial and Remonstrance Against Religious Assessments” in 1785—one of the foundational texts of American religious liberty—James Madison remarked that every person’s first and highest duty is to God, and one cannot surrender one’s conscience even to all one’s fellow citizens combined. Therefore “civil society”—that’s his term for all of us, acting as the highest earthly political authority—can take no “cognizance” of religion, and must leave individuals and religious communities alone, free to act in matters of faith as their conscience dictates. Hence government, our political servant, obviously has no competence in religious affairs. And Madison concludes that no “civil magistrate” in any branch of government can ever be a “competent judge of religious truth.”

The Supreme Court has long endorsed this view of Madison’s, and in a number of precedents has made it clear (to quote one prominent example) that “it is not within the judicial function and judicial competence to inquire” whether any particular religious claim is true, or whether a claimant to religious freedom has relied on an orthodox view of the faith he espouses, or has even “correctly” understood the religious doctrine that lies at the base of his own legal claim. The courts must satisfy themselves that someone’s religious views are sincerely held, but beyond that they cannot venture into doctrine or theology.

Yet in case after case, this is exactly where the intrepid lawyers of the Obama administration have ventured to go, and a dismaying number of federal judges—but thankfully, still a minority—have followed them into this forbidden territory.

The covert theological argument of the Obama administration goes something like this: A plaintiff holds for religious reasons that the destruction of unborn human life is a grave moral evil (or, in the case of Catholic plaintiffs, that it is morally wrong to practice artificial contraception). The HHS mandate, if complied with, will result in some other persons—the plaintiff’s employees—using abortifacient and/or contraceptive drugs or devices. Since the actual provision of these drugs and devices is by insurance companies, and the use is the choice of the employees, the requirement that the employer merely “facilitate” such use, while remaining free verbally to discourage or even denounce such use, places the employers at several steps’ removed from the conduct they regard as an immoral betrayal of their faith. Therefore their complicity is too “attenuated” for the mandate to amount to a “substantial burden” on their free exercise of religion—the phrase “substantial burden” representing one of the key legal elements in litigation under the federal Religious Freedom Restoration Act.

But this argument is deeply flawed, as an encouraging number of judges have recognized. To say that the mandate’s requirements create only an “attenuated” connection between an employer’s actual deeds and the conduct his religion condemns is to make an essentially theological argument. In Catholic doctrine in particular, there are well-developed principles of moral theology regarding “cooperation with evil” and when one’s involvement is sinful. But for Christians more generally—and for many in other faiths too—deliberating about how tangled up one is in complicity with the sinful acts of others is integral to living the faith. “Am I wrongly providing others with the ability, and even materially encouraging them, to do things that God forbids us to do?” is a valid question for an employer to ask himself. If the employer is trying to live his faith every day of the week, it is arguably a necessary question for him. But for government lawyers, or judges, to address such a question is a violation of religious freedom.

In the Hobby Lobby case and other HHS mandate litigation, the position of the plaintiffs is that just providing the coverage for abortifacients or contraception is too much for their consciences to abide. (In the case of the Little Sisters of the Poor, the sisters hold that even signing the all-clear for others to provide the coverage is more than their religion can tolerate.) I could argue here that their moral reasoning is sound; I think it is. But legally and constitutionally, these obviously sincere plaintiffs are entitled to a judgment that they suffer a “substantial burden” even if many reasonable people would say their consciences should rest easy. That’s the bottom line if we believe that the civil magistrate is no “competent judge of religious truth.”

The Seventh Circuit case of Korte v. Sebelius, decided in November, illustrates the danger nicely. Judge Diane Sykes correctly held for the court that the Korte and Grote families, each of them Catholic business owners, suffered a “substantial burden” on their religious freedom. She added that the government’s “attenuation” argument

purports to answer the religious question underlying these cases: Does providing this coverage impermissibly assist the commission of a wrongful act in violation of the moral doctrines of the Catholic Church? No civil authority can decide that question.

Judge Ilana Rovner, dissenting in this case, unwittingly proved Judge Sykes’s point. First she stated, correctly, that “evaluating the nature of the burden imposed is not a test of the orthodoxy, consistency, or theological merit of a plaintiff’s stated religious belief.” But only a few pages later, Judge Rovner bought the “attenuation” argument, and claimed that nothing in the mandate “requires the Kortes or the Grotes themselves to do anything that violates the Catholic Church’s disapproval of contraception.” What was this, other than a presumptuous effort to instruct religious believers in a “correct” understanding of what their own faith teaches?

Here we encounter a truly vicious irony at work in the HHS mandate cases. In order to convince federal courts that employers objecting to the mandate are suffering no infringement of their religious freedom, the Obama administration must lure the judges into joining them in the decision of grave questions of moral theology. And that is an infringement of religious freedom.

All Americans of good will should pray the Supreme Court will resist this deadly invitation in the Hobby Lobby case.

Matthew J. Franck

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution.  He is Professor Emeritus of Political Science at Radford University, in Radford, Virginia, where he taught constitutional law, American politics, and political philosophy from 1989 to 2010, was Chairman of the  Department … 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