Trinity Lutheran Church vs Comer and the free exercise of religion

I have a confession to make. Reading the US Supreme Court’s ruling on Trinity Lutheran Church vs Comer, I am more persuaded by the majority decision written by Chief Justice Roberts than by Justice Sotomayor’s dissent. In this I differ from many secular campaign groups who deplore the ruling and are worried about what it might lead to.

In brief, Missouri runs a program using old tyres to improve children’s playgrounds. Trinity Lutheran Church asked to benefit from this. Their bid was rejected because it came from a church, in line with Missouri’s rule that no taxpayers’ money can go to a church. The Supreme Court ruled 7–2 that rejecting the bid simply because it came from a church violated the constitutional ban on laws “… prohibiting the free exercise” of religion. Sotomayor’s dissent, in contrast, focused on the other half of that clause, banning laws “respecting an establishment of religion”.

The two phrases together are commonly interpreted as erecting Jefferson’s “wall of separation” between churches and the government, preventing taxpayers money from going to churches and preventing the government from taxing churches.

But I think that another metaphor sums up religious freedom better, that of government blindness to religion. The government must be blind to religion, it cannot act with religious or anti-religious motive, it cannot favour religion, and it cannot disfavour religion.

Indeed, Jefferson also insisted (added emphasis):

“… that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities”.

The Missouri program was open to bids from private schools and private day-care centers; the program had no religious intent, it was about recycling tyres and improving playgrounds. The fact that in one case the benefit would go to a day-care center run by a church is incidental. If that church were disqualified merely for being religious then their “civil capacities” would thereby have been “diminished”.

If a generally open program is off-limits to religious groups, but only to religious groups, then that seems a wrongful limitation of free exercise. I side with the majority ruling. The state of Missouri should have simply been blind to the religious nature of that applicant.

Equally, by this doctrine, however, religious institutions should not be exempted from taxation just because they are religious. They should be treated as any other private body.

Justice Sotomayor dissented from the ruling, expressing concern that the granting of money to a church would violate the “establishment of religion” clause, and citing a vast number of precedents where the funding of churches had been prohibited.

Yes, the grant would benefit a church, but that was not the intent of the program, and that is very different from establishing a program whose intent is to benefit a church (as in most of Sotomayor’s precedents).

The Establishment Clause is often expounded as the Lemon Test (which Sotomayor did not address directly in her dissent). The three-pronged test requires that: (1) a statute or government action must have a secular purpose (clearly the Missouri program did); (2) the principal or primary effect of the statute must not advance nor inhibit religion (any benefit to a church from the Missouri playground program was incidental, not a primary effect); and (3) the statute must not result in an “excessive government entanglement” with religion.

The third is the only one that the Missouri program could violate, but does a religion-blind policy where a religious institution could participate on equal terms with other private institutions really amount to “excessive entanglement”? Isn’t it just neutrality?

Sotomayor makes issue of the fact that Trinity Lutheran had not promised that it would not use the grant money for proselytising, instead of improving the playground, but presumably it would have done so if asked. Even as staunchly secular as I am, I could not find myself persuaded by Sotomayor’s arguments.

The judgement itself is fairly narrowly written, explicitly saying that it is not about taxpayers’ money going to activity that is itself religious, though the worry is that it could set a precedent that leads in that direction.

Could this lead to the courts ruling that the taxpayer must fund private religious schools on equal terms with state-funded public schools? Well, if a state instituted an open program where they would fund any school ran by anyone without any limitation on how the school operated or what was taught, then likely, yes, because of “free exercise”, that would have to include religious schools.

But surely no state government would run such a program; it would always take an interest in the quality of education and the curriculum it was paying for. The requirements for that would have to be secular (any religious component in the specifications would violate all three prongs of the Lemon Test), and that would prevent the state from paying for religious instruction.

Yes it is a worry what a highly religious and partisan court might do in the future, but in Trinity Lutheran I feel they made the right ruling that is most in line with the secular principles of religious freedom and religious equality.

I hope I’m not letting the side down too badly!

Updates: The Secular Coalition for America have said that:

“By deciding that churches are eligible for public grants, the court has empowered government employees and state lawmakers to decide which religious institutions ought to receive taxpayer money. This is precisely the entanglement of religion and government that the wall of separation between church and state is intended to safeguard against.”

That’s not really true. The government employees and state lawmakers could use only secular criteria in deciding which (religious) institutions receive taxpayer money, so there is little “entanglement”.

American Atheists say:

“Without the protection of these no-aid clauses, taxpayers are now being forced to directly subsidize religious denominations they do not support.”

But only to the extent that the program already supports other private groups. As the ruling points out, religious denominations already get the benefit of taxpayer-funded roads, police, fire brigades, et cetera.

The Freedom From Religion Foundation argue that:

“It has been a bright line rule since America’s founding that the government will not fund religion or the free exercise of religion. Today, the Supreme Court destroyed that rule …”

Well no, the ruling doesn’t mean that the government can fund religion, it means that the government can fund secular activity done by religious people.

This is strange, I would normally agree entirely with the above organisations. Am I wrong here?

Tim Farron’s resignation does not reveal secular intolerance

British Christians have been writing to the newspapers complaining that the resignation of Tim Farron as leader of the Liberal Democrats shows that liberal secularism has revealed itself to be intolerant. “We are kidding ourselves if we think we yet live in a tolerant, liberal society”, said Farron himself. The resignation “should make us wary of those who pretend to be tolerant and liberal” (Telegraph), “… is evidence of wider intolerance in British society” (Christian Institute) and “… symbolises the decay of liberalism” (New Statesman), opine others.

When Christians are unhappy it is usually because they are waking up to the fact that society is increasingly unwilling to grant them the special privileges to which they are accustomed, and to which they think they are entitled. The special privilege being asked for here is not that they be allowed to advance their beliefs in the public arena. That is accepted and not under threat by any secularist or Western atheist, however much Christians try to pretend otherwise. Rather, the special privilege being asked for is to advance such views and to have them exempted from critical scrutiny.

The suggestion that Christians can no longer hold high office in Britain is bizarre given that all recent Prime Ministers have been openly and vocally Christian. It is even more bizarre in a nation where families are routinely discriminated against by taxpayer-funded schools merely because they don’t go to church, where school pupils are legally required to worship the Christian god (!), and where Church of England bishops are given automatic places in the House of Lords.

Tim Farron, Liberal Democrat leader

I’ll also say this about Tim Farron. As an evangelical Christian he recognised that his religious views are minority ones within the UK, and thus quite genuinely did not want to impose them on others or on society at large. This contrasts with Theresa May who sees her Christianity as mainstream and as entitled to establishment privilege (despite the fact that only 4 per cent now attend church on a typical Sunday). Thus Theresa May, not Tim Farron, is the one trying to increase the amount of religious discrimination in state schools.

“No religious test” for public office is of course at the heart of liberal and secular principles. But “no religious test” is a restriction on the government; it is not a restriction on the people. In a democracy people must be allowed to consider someone’s opinions and views in deciding who to vote for. Indeed, isn’t that the whole point?

Christians want politicians to be open and vocal about their religious views, and are quite happy if that makes people more likely to vote for them, but where it makes people less likely to vote for someone they want to cry “Intolerance!”.

Tim Farron was leader of a party that promoted full equality for gay people. Yet it seems his private views are that a gay lifestyle is sinful and against Biblical teachings. People, understandably, questioned him about that discrepancy.

That is not “intolerant”, it is simply asking for consistency. If the leader of the Conservative Party, publicly promoting a free-market economy, revealed that in private they were actually a Marxist, there would be just as many questions!

It was Tim Farron himself who considered that his public role, leading a “progressive, liberal party in 2017”, had become incompatible with what he saw as “living as a committed Christian” and “hold[ing] faithfully to the Bible’s teaching”. That is a contradiction he really should have sorted out for himself before running for public office. People are entitled to hold compartmentalised and inconsistent views; but voters are entitled to take note.

To claim that tolerance demands that the media and public just ignore such inconsistencies is to ask that religious beliefs be granted a very special status where they be exempt from scrutiny, a status where voters may react favourably to religious views but may not react unfavourably. There is nothing illiberal in rejecting that request.

The CARM rejection of subjective morality

I’ve been pointed by a reader to a critique of the idea that morality is subjective written by the Christian Apologetics & Research Ministry. CARM is the website of Matt Slick, a conservative Christian who believes in the infallibility and literal intent of the Bible, and thus, for example, in the literal existence of Adam and Eve.

carm

What struck me about Slick’s arguments against morality being subjective is that he doesn’t really address whether it is true that morality is subjective, he discusses whether he wants it to be the case that morality is subjective. He then sort of assumes that what he wants to be the case must then be the case.

mattslick

This is, of course, a hallmark of Christian apologetics, but is also symptomatic of those arguing for objective morality more generally. Having discussed the matter with many people, the main objection to the idea that morality is subjective is simply dislike of the idea or its consequences, coupled with an intuitive insistence that there must be some way in which we can regard morality as objective.

Slick argues:

But, we can justify our absolute morals that apply to all people; they [moral subjectivists] can’t. The Christians absolute morals are rooted in the character of God, not the subjective preferences of individual.

Of course rooting morals in the subjective preferences of the Christian god is just as subjective as rooting them in the preferences of Fred Blogs from Little Rock, Arkansas. Slick gives no reason why God (as opposed to anyone else) gets to be the one whose opinion counts. “Might makes right” is not an argument. And it doesn’t get you around Euthyphro: if a God were a sadistic monster who enjoyed torturing children for the fun of it, then — according to Slick’s account — torturing children would be the objectively moral thing to do.

Slick then gives six reasons for rejecting subjective morality:

1. Without absolute morals, nothing is really right or wrong

By “really” right or wrong, he means objectively right or wrong independently of anyone’s opinion. And he’s entirely right. But all he’s done is restate what morality being subjective means. He’s given no actual argument against moral subjectivity or non-cognitivism (the idea that moral claims do not have truth values). He is, it seems, assuming an implicit: “… and because this conflicts with my intuition and because I don’t like that idea therefore it is untrue”.

2. Moral values are assigned [by] individuals who often contradict each other

Again, he is entirely right. Again, though, this does not constitute any sort of argument against morality being subjective. People so often just misunderstand subjective morality. They are so intuitively wedded to the idea that moral claims have objective truth values that they then get all baffled as to how one gets objective morality and objective moral truth values out of subjective morality. The answer is of course, that one can’t, and the quest is misconceived. But Slick asks:

It would be a problem to determine what actually is right and wrong when morals are subjective and people disagree all the time

Yep! And that’s because there is no such thing and because the very phrase “what actually is morally right and wrong” has no meaning, it being the delusion of a preference that is objective and independent of anyone doing the preferring.

Furthermore, if people were to appeal to something “just being wrong”, then they are not appealing to the subjective preferences but to a standard outside of themselves. This would be inconsistent with the idea of subjective morality …

Again, that’s entirely correct! And yet none of this is an argument against non-cognitivism being the truth about morality. Slick is just giving his emotional reaction to the idea and rejecting it for that reason.

3. If moral values are subjective, there can be no moral absolutes

Yes indeed Mr Slick, well spotted! Slick is just re-stating the same thing again and again.

4. Moral subjectivity would work only in a world where people are nice

By “work” Slick presumably means “… lead to a world in which everyone was nice”. Again, indeed so! Slick correctly points out that only in a world where everyone was nice would everyone be nice. Subjective morality will indeed not automatically produce such a world. But, you know what, we don’t live in such a world! In asserting that morality is subjective, I’m trying to state the truth about how things actually are, not dreaming of a Utopia about how we’d like things to be.

5. History condemns moral relativism

Slick makes the usual apologetic claim that subjective morality leads to mass murder, pointing to Stalin, Mao and Hitler. But, he’s simply wrong. Hitler, for one, believed in an objective morality ordained by God, just as Slick does. It was precisely because he believed that objective moral standards ordained by God mandated the removal of Jews from society that he decided to kill them. After declaring that the Aryan race were the “highest image of God among His creatures”, Hitler stated in Mein Kampf that the state had: “a very high mission indeed to preserve and encourage the highest type of humanity which a beneficent Creator has bestowed on this earth”. Thus he declared that: “In opposing the Jew I am doing God’s will”.

Similarly, Stalin and Mao believed that they had an overriding moral duty to impose their system on society. It is the person who believes in objective morality, who considers that he has an absolute moral mandate, regardless of what other humans think, who is dangerous. A person who considers that morality is subjective, and that his moral opinions are his own individual moral opinions, and that he does not have objective or Divine backing to impose them on others, is much less dangerous.

Finally, Slick argues against the idea that:

6. Morals are based on reducing Harm

Slick says that:

… when reducing harm is the standard all that people have to adhere to, then the moral relativist is appealing to a universal moral standard. But that means they are appealing to something outside of themselves which contradicts their subjective morality.

Again, I agree, but there he is arguing against the objective system of utilitarianism. Many atheists, recoiling intuitively from the idea that morals are subjective, do indeed attempt to construct an objective utilitarian morality (Sam Harris is a prominent example). I consider all such attempts to be misconceived, and suggest that morality makes much more sense once we accept that it really is subjective. Thus morality is often about reducing harm simply because that’s the sort of society most of us want to live in.

There really are no problems at all associated with subjective morality — Slick has not pointed to a single one, other than his intuitive rejection of the idea.
Yes, one cannot start from subjective morality and then map it onto an Absolute Shouldness Scale, but that’s because the very request is a misconceived mashing together of subjectivism and objectivism. Many of Slick’s comments are actually entirely correct, but are in no way arguments against morality being subjective.

The Second Law of Thermodynamics made easy

The Second Law of Thermodynamics is one of the few scientific laws that has attained a status in wider culture, even featuring in rock tracks by Muse. Famously, C.P. Snow cited an understanding of the 2nd Law as something that every educated person should have.

The 2nd Law is often stated in technical language that makes its meaning hard to understand, but the basic principles are actually readily grasped. I was recently challenged to explain the 2nd Law at the level of a bright 13-year-old, and so here is my attempt. Continue reading

Can we please distinguish between speech and actions?

The distinction between speech and action matters. Shouting fire in a crowded theatre endangers people’s safety and so is not just speech but also an “action” that can rightfully be outlawed. In contrast, showing contempt by burning the US flag or a copy of the Quran is “speech” and so should not be outlawed. The act of burning an item of your own property is lawful, and the added contemptuous attitude amounts to speech. This is highlighted by the fact that the method of disposal of old flags recommended by the US military is … burning them, though respectfully. Likewise some Islamic authorities recommend burning as the method of disposal of old copies of the Quran that are no longer fit for reading.

Those in favour of free speech generally hold that any speech that stops short of incitement to violence, or otherwise putting people in direct physical danger, should be lawful and accepted. Those against free speech think otherwise. But they don’t want to admit to being against free speech; few people do. So they label those in favour of free speech as “free speech absolutists”, and begin their arguments with: “I am fully in favour of free speech, but …”. From there they muddy the water by trying to negate the distinction between speech and action. Continue reading

On Stephen Law on Scientism

scientism It’s good to see philosophers taking scientism seriously, and not just using the term as a bogey word. Massimo Pigliucci and Maarten Boudry are editing a forthcoming volume on scientism (Total Science, University of Chicago Press) and some of the essays are appearing on the internet.

I’ll discuss here the draft chapter by Stephen Law (Heythrop College, University of London) who writes, discussing the proper scope of science:

stephen_law

As a philosopher, you might expect me both to want to carve out some intellectual territory for philosophers to occupy, and also to resist the thought that philosophical questions and problems are either non-questions and non-problems or else questions that will be answered and problems that will be solved, if at all, through an application of the scientific method. I won’t disappoint. However, while I acknowledge that there are limits to science, I will argue these limits typically offer little comfort to religious, New Age, and other folk looking for ways to immunize their beliefs against scientific refutation.

As that last sentence suggests, science has been so successful in generating knowledge that it can be threatening to other beliefs. Do other belief systems have an independent validity, in domains of knowledge that are simply not the business of science, or can a scientific approach prevail in all domains? As Law says, the desire to limit science often originates from a desire to indulge beliefs that derive from wishful thinking, without feeling any need to supply science-grade evidence to back them up.

Law discusses Stephen Gould’s proposal of “non-overlapping magesteria” of knowledge, of which science would be only one. In contrast, scientism is the wholesale rejection of NOMA and the declaration that knowledge is a unified whole, and that the basic ways of finding things out that we refer to as “science” apply universally.

Let’s also be clear that scientism is not the claim that science can answer all questions, it’s the claim that there are no independent “ways of knowing” that can answer questions that science cannot. It is easy to think of questions that are meaningful but which we will never be able to answer (I’ve previously given some examples, including: What did Julius Caesar eat on the day three days before his eighth birthday, and did he stroke a dog on that day?).

Law is sympathetic to much of scientism and I won’t address the many parts of his chapter with which I agree. I’ll focus only on two areas where Law dissents from scientism: Continue reading

Telling science from pseudoscience and the demarcation problem

demarcPhilosophers of Science have long puzzled over what they call “the” demarcation problem, of how to distinguish science from pseudoscience. In the early 20th Century the Logical Positivists proposed the verification principle, that a statement was meaningful and scientific only if it could be empirically verified. Karl Popper then proposed a similar idea, that a scientific idea is one that can be falsified.

There is a lot of truth in both proposals, but neither can be interpreted too narrowly. The problem is that no statement can be verified or falsified in isolation. Science constructs whole webs of ideas, and it is the whole construct that is then compared to empirical data, to be adjusted and improved as necessary. Further, a statement such as Newton’s law of gravity can never be verified in the general sense, all we can say is that it worked well enough — as part of the wider web of ideas — in the particular instance we tested. Nor is it straightforward to falsify such a law. If our overall model is inconsistent with an observation then we could indeed alter one of the laws; but we might also overcome the inconsistency by altering some other part of the overall model; or we might doubt the reliability of the observations. Continue reading