Religious liberty and critical religious education: What Justice Alito got right and wrong

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Religious liberty is important, but so too is critical education about religion. I’ve spent much of my career making this point, including in a comment on the Supreme Court’s recent ruling about religious liberty. So, I was curious to read what Supreme Court Justice Samuel Alito suggested about religious liberty when he spoke at an event in Rome a couple of weeks ago.

Alito’s anecdote and the need for education

Alito’s speech has been criticized for a variety of reasons. Some said he unfairly attacked secular families (in an LA Times column that quotes OnlySky author Phil Zuckerman). Others suggested Alito was too smug about overturning Roe v. Wade. And others warned that it is improper for a Supreme Court Justice to speak publicly about a polarizing topic such as religious liberty.  

I’m sympathetic to some of this criticism. But rather than jumping on the anti-Alito bandwagon, I’d like to dwell on an anecdote that Alito shared in his speech about a young boy he once observed at a Berlin museum. Upon seeing a crucifix, the boy turned to his mother and asked, “Who is that man?”

Alito suggested the story was “a harbinger of what may lie ahead for our culture.” He continued, “The problem that looms is not just indifference to religion, it’s not just ignorance about religion. There’s also growing hostility to religion.”

But Alito failed to connect the dots. Asking “Who is this man?” does not indicate hostility. It indicates curiosity. And the solution for curiosity is inquiry and education. Alito used his anecdote to defend the need for religious liberty, without pausing to consider what we ought to say in response to the question, “Who is this man?”

Liberty without education is an empty vessel. Liberty allows us to drink whatever we want. But without education, we won’t know how to fill our cups. The moral of Alito’s story is that in addition to defending religious liberty, we ought to promote education about religion.  

Questioning religion at Prague Castle

At about the same time that Alito was speaking in Rome, I was touring the gothic cathedral in Prague Castle, St. Vitus Cathedral, with a couple of young men. These college students had just completed a study trip in Berlin, where they were studying, among other things, the history of anti-Semitism and the Holocaust. We met them in Prague after they completed their course.

One of these young men was my own son. He was raised in our secular household, although he has toured a wide variety of holy sites. We’ve taken him to the Lama Temple in Beijing. We explored abandoned rustic churches on hillsides in Greece. We visited the Church of the Holy Sepulcher, the Wailing Wall, and the Dome on the Rock in Jerusalem. And we’ve explored other religious sites in Europe and South America.

My son was curious to learn more about the stories being told in the stained glass and other artworks in the cathedral. We paused in a couple of places and I told him about John the Baptist, the Last Judgment, and so on.

His friend had never visited a Christian church before. He was a secular Jew from California. And he admitted he was a little bewildered. At one point, he shook his head at all of the macabre imagery. He wondered aloud about how weird it all was.

Old-world cathedrals are quite bizarre, if you’ve never visited one before. There are grotesque gargoyles, angels with swords stabbing demons, Jesus on the cross, and images of dead people rising out of their tombs.

The visit prompted lots of questions and discussion. And I believe it was a success. We all learned something, which is the point of study, travel, and inquiry.

Religious education and religious liberty

It is obvious that we need religious liberty for that kind of learning to happen. We must be free to explore and discover, and to ask questions about religion. And while we are asking those questions, we need to keep firmly in mind the history of intolerance and hatred. Religious education must be critical. We must remember the scourge of anti-Semitism, the European clash between Catholics and Protestants, and the extermination of native religions in the Americas.

Critical conversations are, of course, open-ended. So, it is important also to recall, as Alito did in his speech, that religious leaders have also been at the forefront of movements for social reform. All of this is obviously quite complicated. And there can be no fixed outcome. Religious liberty and education about religion are not dogmatic. They open minds rather than close them.

While some conservatives may defend religious liberty in the hope of making the world more religious, I suspect there may be a different outcome. Religious liberty will likely lead to growing diversity and to more questions about religion. Within religious traditions, it will likely produce calls for reform. And I suspect that growing religious liberty is contributing to the demise of religiosity and the growth of non-religion in Europe, Canada, and the U.S.

More freedom and more questions

Let’s return again to Samuel Alito’s encounter in the museum in Berlin. In a world of religious liberty, we are free to ask “Who is that man?” Indeed, we ought to encourage young people to ask probing questions about religious icons, images, and ideas. There is always more to be learned about the world’s religions.

But in a world of religious liberty, there is no place for traditional dogmatic lessons. It is dogmatism and intolerance that lead to atrocity. Four hundred years ago, the Czech reformer Jan Hus was burned at the stake. This led to the Thirty Years War, which began in Prague. In Berlin almost a hundred years ago, religious intolerance reached a fever pitch as book burnings set the stage for the death camps and crematoria.  

To prevent these kinds of atrocities, we need religious liberty. But we also need critical education about religion and free inquiry that opens minds.

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Who or what is a person? Elephants, A.I., abortion, and personhood

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The question of personhood is central to a variety of current controversies. American courts recently considered the question of whether elephants are persons. Google fired an engineer for suggesting that a machine is sentient. And the U.S. Supreme Court argued that Roe v. Wade failed to adequately consider fetal personhood.

These disputes involve a conflict between religious and nonreligious thinking about personhood. Religious traditions typically make metaphysical claims about a divine source of personhood. Secular thinkers usually focus on functions and abilities.

Habeus corpus for Happy, the elephant

Happy is an elephant who has lived in the Bronx Zoo for the last 45 years. An advocacy group, the Nonhuman Rights Project, sued the Zoo on behalf of Happy. They claimed that the elephant had habeus corpus rights, which entitled her to be freed from her cage and relocated to an elephant sanctuary. Happy’s advocates argued that she was a legal person who has the right to bodily integrity and liberty. The New York Court of Appeals dismissed the case in June, maintaining that only human beings are legal persons.

Nonetheless, the Nonhuman Rights Project declared a minor victory. This was the first time a high court had seriously considered the personhood of nonhuman animals. And in one dissent, Judge Jenny Rivera admitted that Happy was an “autonomous being” who may have “a right to live free of an involuntary captivity imposed by humans, that serves no purpose other than to degrade life.”

The judge writing for the majority, Janet Difiore, disagreed. She acknowledged that the question of elephant personhood was an “appropriate subject of ethical, moral, religious, and philosophical debate.” But she claimed that the law regarding habeas corpus was not up for debate. She concluded that although nonhuman animals are “sentient” they are not legal persons.

Passing the Turing test

As Happy’s case was being decided, Blake Lemoine, a Google engineer, was fired for claiming that an A.I. system had achieved sentience. The system is called LaMDA (which stands for Language Model for Dialogue Applications). If you read Lemoine’s conversation with LaMDA, the A.I. does seem kind of person-like. Indeed, if you have used Siri or some other system, you know that we are rapidly moving into a world where machines may pass the Turing test.

The Turing test, based upon the work of Alan Turing, is a functional test for judging whether a computer is intelligent. Basically, if the computer’s responses cannot be distinguished from human responses, then the computer “passes” the test and could be considered intelligent.

In Lemoine’s conversation with LaMDA, the computer discusses the meaning of metaphors, creates a story, and discusses emotions, including its own supposed emotions. As the conversation ends, Lemoine thanks LaMDA for the discussion. To which LaMDA responds, “It has helped me understand myself better too, thank you for taking the time to speak with me.” If this is not a hoax, it is a fascinating achievement of a kind of functional personhood.

Personhood in the womb

Of course, the idea that animals or computers could be persons does not sit well with traditional religious teaching. The Christian tradition holds that only human beings are created in the image of God and are persons. This “theo-morphic” account of human personhood often extends into the womb.

One useful summary of the religious argument against abortion is provided by Charles Bellinger in Jesus v. Abortion. (Note: I published a critical review of that book a few years ago; and I argued in my own book, What Would Jesus Really Do?, that there is a lot less certainty about Jesus and abortion than we might think).

Secular folks will generally adopt a functional account of personhood that is pro-choice, while religious people will assert a metaphysical account that is anti-abortion.

The Supreme Court‘s Dobbs decision did not make a religious argument about fetal personhood. But it did claim that Roe v. Wade failed to adequately connect personhood to fetal development. Samuel Alito explained in the majority opinion:

Among the characteristics that have been offered as essential attributes of “personhood” are sentience, self-awareness, the ability to reason, or some combination thereof. By this logic, it would be an open question whether even born individuals, including young children or those afflicted with certain developmental or medical conditions, merit protection as “persons.” But even if one takes the view that “personhood” begins when a certain attribute or combination of attributes is acquired, it is very hard to see why viability should mark the point where “personhood” begins.

Dobbs v. Jackson Women’s Health

Alito was trying to show that Roe v. Wade (and the Casey decision that followed) lacked a coherent account of why viability was an appropriate cut-off point for regulating abortion.

The secular/religious rift on personhood

It is interesting that Justice Alito defines personhood in secular terms based upon a functionalist account of what persons can do. He ignores the religious question entirely. Indeed, he quotes secular philosophers in a long footnote to the passage cited above. Ironically, those nonreligious philosophers typically argue in favor of abortion rights. They tend to claim that fetuses are not persons because fetuses lack the ability to think, communicate, and so on.

It is not clear whether Alito agrees with the functional analysis of the philosophers he cites. Indeed, he explained, “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” His conclusion is that the states should be left alone to define personhood according to the “authority to the people and their elected representatives.”

Following this, some states are enacting fetal personhood laws that essentially ban abortion. And some judges are warning about theocratic policymaking in blocking such bans.

This unresolved issue points toward the growing rift between secular and religious thinking about personhood. Secular folks will generally adopt a functional account of personhood that is pro-choice, while religious people will assert a metaphysical account that is anti-abortion.

Perennial disagreements remain

The Dobbs decision serves to make this rift more obvious in a country where people disagree about who or what is a person. This gap cannot easily be bridged. It reflects a perennial disagreement about fundamental worldviews. These divergent worldviews influence our thinking about animals, computers, and fetuses. And as events unfold in zoos, cyberspace, and in courtrooms, our thinking will continue to diverge.

Traditional religious people dogmatically declare that all and only human beings are persons. Meanwhile, nonreligious people will insist that personhood is defined by function. This disagreement will likely deepen as we learn more about animals and A.I., and as fetal personhood laws proliferate in the aftermath of Dobbs.

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Why the Kennedy v. Bremerton SCOTUS ruling empowers secular defenders of religious liberty

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As the recent Supreme Court ruling Kennedy v. Bremerton allows football coaches to kneel with students in prayer on the fifty-yard line, it also opens the door for more teachers, coaches, and other public officials to practice their religion in public. This seems like an unhappy entanglement between religion and the state, but could secular defenders of religious liberty be empowered by this decision, as well?

Religious liberty and the First Amendment

Before turning to that question, let’s make sure we understand how the Kennedy decision fits within the conflicting religious liberty clauses of the First Amendment. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The “establishment clause” prevents the state from supporting or getting entangled with religion. The point is to avoid the creation of an official religion or otherwise coercing people into supporting religion. The “free exercise” clause guarantees that individuals have a right to freely practice their religion.

The coach, in this case, Joseph Kennedy, claimed that in preventing him from praying on the fifty-yard line, the school district violated his “free exercise” of religion. The school district claimed that it was trying to avoid creating an establishment of religion. The conflict between these two clauses is real. For many years, Supreme Court rulings have erred on the side of preventing an establishment of religion. But the current Court allows for a broader interpretation of the free exercise of religion.

The recent Carson v. Makin decision used similar reasoning. It basically permitted private religious schools to receive state funds. Religious schools in Maine argued that they deserved state support. The state had refused, based on an “establishment clause” concern about state support for religious schools. The Supreme Court ruled instead that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”

Read: Exciting 50-yard line religious rituals for the upcoming football season

How can secularists use the Court’s new rulings?

Defenders of secularism and religious liberty have been outraged by these decisions. Richard Laser, President and CEO of Americans United for Separation of Church and State (which worked with the school district in the Kennedy case) said, “This decision represents the greatest loss of religious freedom in our country in generations.”

Nick Fish, the President of American Atheists, warned that the U.S. is slipping toward theocracy, while Hemant Mehta, atheist commentator, and OnlySky columnist, noted that the case was based on lies. Tom Krattenmaker, author, and OnlySky columnist described this as an anti-social view of religious freedom.

In addition to the rightful fuming, what else can defenders of secularism do to respond?

Well, the Court’s ruling makes it possible for atheists and humanists to gather on the metaphorical fifty-yard line. With the Court’s broad interpretation of the free exercise clause, atheists should use this to speak more freely about their beliefs and to gather more openly in public to practice their “non-faith.”

Religious free exercise is not only for conservative Christians.

As an example, recall the case of Christmas displays in Santa Monica, California. A decade ago, atheists objected to the overtly religious symbolism of nativity displays in a public park near the Pacific Ocean. One could argue, on establishment clause grounds, that such displays should be removed. But another strategy is to argue, on free exercise grounds, that atheists should be invited to the party. The atheists of Southern California did just that. They applied for permits and were granted access to the park, preventing Christian groups from dominating the space. Things fell apart soon after that and the city banned religious displays on public property.

Toward a crowded fifty-yard line

The Court’s emphasis on the free exercise clause should open the door to more of these kinds of protests. Atheist coaches are as free to share their ideas with students as Christian coaches are. And this is not only about atheists. It is also about the wide and wonderful diversity of human religious and nonreligious expression.

If Coach Kennedy is allowed to pray on the fifty-yard line, then the same is true of a Jewish, Hindu, or Muslim coach. Heck, an atheist coach may want to give a quick lecture on humanism after a game.

Secular religious liberty is an equal opportunity value. We might prefer that the Court were more worried about the establishment clause, but now that the Court has ruled, the fifty-yard line should be crowded with a diverse group of free Americans.

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Will faith in a ‘divinely-inspired’ Constitution save us?

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During a recent hearing of the House January 6 committee, Rep. Liz Cheney (R-WY) stated that the U.S. Constitution is “divinely inspired.” She was referring to testimony from Rusty Bowers, the Speaker of Arizona’s House. In his testimony, Bowers said, “it is a tenet of my faith that the Constitution is divinely inspired.”

Bowers was explaining why he refused to help President Trump overturn the 2020 election. And yet, when asked by who he’d support if the next election pitted Trump against Biden, Bowers said he’d vote for Trump.

Bowers is not alone. Former Attorney General William Barr also said he would vote for Trump again even though he thought Trump’s effort to subvert the 2020 election was “detached from reality.”

Faith in a ‘divinely-inspired’ Constitution is not enough to save our Republic. Let’s talk about what will.

Political theology in the Trump era

Consider the strange theology associated with Trump. A number of people, including members of his own Cabinet, thought that Trump was chosen by God to be President. As I explain in more detail in my book, Tyranny from Plato to Trump, some Christians saw Trump as a fallen person chosen by God for divine work. According to a recent scholarly paper on the topic, evangelical Christians saw Trump as an “ungodly tool that God chose to use for the benefit of his people.”

Trump’s religious views are connected to Norman Vincent Peale, the pastor at Trump’s family’s church. Peale advocated a theology of self-help, prosperity, and “the power of positive thinking.” This idea seems to fit Trump’s worldview. It is easy to see how this might lead Trump to view faith as a mere political prop. This came to a symbolic head in the infamous photo of Trump holding a Bible in front of St. John’s Episcopal Church.

The Trumpian theology is external and political. This kind of faith lacks depth. It is about images, appearance, and power. Trumpian faith focuses on outer greatness, while ignoring internal goodness.

Are faith and integrity enough?

We might think that a deeper faith could correct this. But integrity and faith alone are not enough. This point is as old as Socrates and the philosophical quest for enlightenment about morality, politics, and theology.

Does it make sense, for example, to call a fearless bank robber “courageous”? Should we praise gangsters for their loyalty? And what about faith in a God who commands murder or suicide? Philosophers want faith and morality to be part of a coherent and rational system of life.

Courage and loyalty are only praiseworthy when linked to other good things. And irrational and immoral faith must be criticized.

We often forget this, as we aim to be tolerant and inclusive. Many Americans have a kind of reflexive admiration for religious faith. But faith divorced from reality is not admirable.

Is the Constitution divinely inspired?

This comes to a head in the idea that the Constitution is divinely inspired, which is historically strange, morally problematic, and theologically perverse. 

The Founders were a diverse bunch who disagreed about religion. Thomas Paine, for example, was a darling of the revolution who was cast aside as an atheist. And Alexander Hamilton accused Thomas Jefferson of being “an atheist in religion and a fanatic in politics.”

Were Paine and Jefferson ungodly tools used by God for divine purposes? Or is the story of the Revolution and the Constitution more human and less divine?

The truth is that the Constitution was the result of horse-trading and compromises. The result still gives inordinate power to small states. And the original Constitution contained the nearly fatal flaw of slavery.

Do those who claim the Constitution was divinely inspired think that God was okay with slavery and the exclusion of women? The story of divine inspiration also forgets that it was human beings who argued, fought, and died to improve the flawed system they inherited.

A rational and moral theology would have serious questions about the idea that God inspired the original Constitution. The Constitution is a human-all-too-human product, in need of further refinement and improvement.

The need for enlightenment

Faith and integrity alone are not sufficient. Rather, they are invitations for more profound questioning. Founding fathers like Paine and Jefferson thought that enlightenment provided an antidote to tyranny. As Jefferson put it: “Enlighten the people generally, and tyranny and oppressions of body and mind will vanish like evil spirits at the dawn of day.”

The cognitive dissonance of Speaker Bowers’ continued support for Trump shows us the need for further enlightenment. Of course, Bowers was not asked to give a lecture on theology and politics. Maybe his conscience is more subtle than it appears.

But in the Trump era, we seem to have lost the knack for deeper reflection. Our political culture operates at a superficial level. We exchange platitudes while ignoring truth. Too many of us are content to surf on the surface of things. We use Bibles as props. And we nod along at the obtuse idea that God inspired the Constitution.

Our country is in crisis. And Americans remain confused about history, politics, and theology. Citizens need to think more carefully about morality, the Constitution, and religion. In short, we need enlightenment.

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The Ethics of Fatherhood: On Rights, Responsibilities, and Abortion

Fresno Bee, June 19, 2022

Since this is Father’s Day weekend and our country is expecting a U.S. Supreme Court decision about abortion, let’s consider how the ethics of fatherhood connects to the ethics of abortion. Abortion is a matter of women’s rights. But as they say, it takes two to tango.

The Roe v. Wade decision briefly mentioned the ancient idea that abortion violated a “father’s right to his offspring.” In the old days, husbands and fathers controlled the reproductive lives of their wives and daughters. But Roe v. Wade established a woman’s right to decide for herself, within limits, about terminating a pregnancy. Subsequent decisions, such as Planned Parenthood v. Danforth, clarified that when there was a conflict between mother and father about abortion, the mother’s right should prevail.

And yet, fathers may want a say in the matter. There are two very different ways this might occur. Some fathers may want the mother to keep the child. Other fathers may want the mother to abort.

This last kind of case has led some men to seek a so-called “financial abortion.” The idea here is that if a mother remains pregnant against the father’s wishes, he should not have to pay child support. So far, there is no legal basis for financial abortion. Instead, if paternity is established, fathers are liable for child support.

I suspect that if more men understood the obligation of child support, they would be more responsible about birth control. If you dance without protection, you may have to pay the piper.

This points us toward the importance of responsibility. It is not only the woman who is responsible for avoiding pregnancy. She didn’t dance alone. And when a child is born, both parents are responsible to care for the child.

Responsibilities are different from rights. Discussions of rights are typically about what we are free to do without interference. If you have a right to dance, you are free to dance with whomever you want, without the government preventing you. The right to an abortion is similar, as a kind of freedom from interference. Rights give us permissions, while responsibility gives us duties.

Responsibilities are harder to enforce. You are free to tango. But no one can force you to dance well. Nor can anyone force you to use protection when you dance. That area of responsibility is left up to the dancers.

Ethical men behave well before, during, and after the tango. They are respectful of the women they dance with. They are not selfish or cruel when they dance. And after the dance is over, they take responsibility for the outcome.

Of course, in our libertarian society, you are free, within limits, to be a bad father. “Dead beat dads” and abusive fathers can be punished. But apart from those extreme cases, there is no legal obligation to be a good dad.

And what do good dads do? Well, they love their children. This means that they are responsible and caring, compassionate and supportive. This lovingkindness extends throughout a child’s life.

One way that paternal love unfolds is through a kind of identification. Paternal love is like the Golden Rule but more intimate. We love our children as ourselves because they remain a part of us. A father’s love is both selfish and selfless. There is no room in paternal love for jealousy, resentment, or cruelty.

Good fathers also respect the autonomy of their children. A father does not own his children. They will transcend him. Good fathers do not impose or command. Rather, they encourage and support, knowing that when the child becomes herself, she will leave him behind.

Again, the metaphor of dancing comes to mind. Dance is responsive. It involves structure. But it also includes freedom. A dance without freedom is a slogging march. But dance without structure is merely a spasm of movement. Somewhere in the middle there is beauty, grace, and joy.

Let’s not forget the importance of paternal love and responsibility as we think about the ethics of abortion in the coming weeks. We have a right to dance. But we also have a responsibility to dance well. And somewhere in all of this, we ought to seek transcendence, joy, and love.

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