CFI press release on South Park debacle

“Free expression is the cornerstone of a free society,” maintains Ronald A. Lindsay, president and CEO of CFI. “No belief, no public figure, should be immune from criticism, whether that criticism takes the form of a book, an article in an academic journal, or a cartoon. What is especially disturbing about the South Park controversy is that the show did not even criticize Islam or Muhammad—it merely included Muhammad as a character along with many other famous figures. It is intolerable that the producers of South Park were threatened with violence.”

Go here for the full press release.

Okay, just quickly ...

H/T Ophelia Benson. This article by Lawrence Lessig shows just how the Catholic Church is now shooting itself in the foot when it comes to the game of sustaining its aura of moral authority. As Lessig notes, insurers take over civil suits on behalf of defendants that are relying on insurance policies to pay for any damages that might be awarded. So it's not so odd to see the Church take a hard line in actual court proceedings - it's really the insurer running the case, and the lawyers will be those retained by the insurer. Insurers like to settle on favourable terms if they can and to win in court if they can't. They're pragmatists looking after their own bottom line. Fine so far, but we then see the church itself doing everything possible to try to put itself outside the reach of the civil law, no matter how heinous the acts of its minions.

What will this accomplish? Think about it - the answer is, "Lower insurance premiums."

Blog semi-break

Over the next couple of weeks I plan to do some intensive writing. First, it'll probably take me a couple of days to get some files organised and some structure re-planned. Then, by the beginning of May at the latest, I'll be hoping to turn out 2000 words per day - I have a lot of material in rough form, waiting to be cannibalised, so I won't be doing this entirely from scratch, so therefore it's doable, even though the job will be finicky.

But I need to get into a headspace where I'm not too distracted by debates on other matters, so that will mean trying to cut down my time writing blog posts (and commenting on other people's blogs). It will also mean spending spare time relaxing with loved ones rather than too much of it arguing with people who are Wrong on the Internet (or even giving kudos to people who are Right on the Internet). I won't be able to resist the temptation to blog to some extent - I know myself that well - but at least I won't feel a responsibility to blog each day, as is normally the case. Quite the opposite: I'll feel a responsibility to avoid doing that.

So, with any luck, I'll be a bit scarcer for the immediate future. If that happens, you'll know why. OTOH, don't stop checking; I won't be gone altogether.

An extra note on boobquake for people who don't "get" it

Following from my comment at Jerry Coyne's boobquake post. We're talking about women voluntarily wearing clothes which seem to them to be fun and sexy. Note that it was a woman who had the idea and that many other women are getting into it enthusiastically. I think there's a reason for that. We're not talking about pornographic images that are meant to do dirt on female beauty for the benefit of men who fear it. 

I'm not a fan of pornography because I think that this is what much (I'm not saying all) pornography is all about. In that sense it's deeply misogynist. But we need to make the distinction between rational critique of this kind of pornography and getting upset at the sort of sexual display by women that the women themselves feel good about. Women are entitled to dress in ways that strike them as wild, and fun, and sexy, and we are all entitled to enjoy it if they do. Contrary to the rantings of an Iranian cleric, women get to be flirty or frivolous or to exult in their beauty. The difference between enjoying this and resorting to misogynist pornography is as radical as the difference between laughing with someone and laughing at someone.

Much 1980s radical feminism was too unnuanced to make these sorts of distinctions. Sure, some of its targets - the kind of pornography I mentioned - were legitimate ones. But much of the critique was so scattergun as to give the impression of rationalising anxieties about sex and the body. The people concerned would have been in good company with Saint Augustine or a brace of mullahs from Iran.

Whoa! Great volcano footage!

I'd love to see this IRL.

Outrageous attack on freedom of speech in the UK

As Ophelia says, this means war.

According to the Daily Telegraph (UK):

Harry Taylor, 59, left home made posters at Liverpool John Lennon Airport three times in November and December 2008.

The self-styled philosopher denied three counts of causing religiously aggravated harassment, alarm or distress but was convicted in less than an hour by a unanimous jury.

Among the posters, one image showed a smiling crucified Christ next to an advert for a brand of ''no nails'' glue.

In another, a cartoon depicted two Muslims holding a placard demanding equality with the caption: ''Not for women or gays, obviously.''

Islamic suicide bombers at the gates of paradise were told in another: ''Stop, stop, we've run out of virgins.''

Tasteful? No. But he did not do anything that was illegal, independent of the authoritarian legislation used to convict him. Taylor has been slapped with an Anti-Social Behaviour Order, which bans him from carrying "religiously offensive" material in a public place. As reported by the Telegraph, he was also sentenced to six months' imprisonment, suspended for two years, ordered to perform 100 hours of unpaid work, and pay costs of 250 pounds.

Taylor may be a bit obsessive, as he's done this sort of thing before, but he should have freedom of speech. Thus, I have a slightly different emphasis from Ophelia. Granted, this debacle may well say something about the rights of atheists; but I also think it shows, more generally, yet again, and very powerfully, how a don't-rock-the-boat mentality is undermining freedom of speech. People who are eccentric or obsessive should be free to spread their messages in public, just like those of us who are more inclined to conform, speak decorously, and not rock the boat.

It's time to redouble our efforts to defend free speech against these constant attacks from people, including legislators and judges, who see it as having low value.

Boobquake

Jen McCreight has produced a meme - "Boobquake" - ridiculing the idea that "immodest" dressing by women leads to lascivious thoughts from men, which results in fornication and adultery - which, in turn, cause earthquakes. The idea was proposed a few days ago by a senior cleric in Iran, but of course it's in line with the common thought in Islam that there's something wrong with a woman "showing her beauty to the world". Christianity is not much better, of course: there's a long tradition of Christian theologians problematising women's (and men's) bodies, deprecating sexual beauty, and expressing anxiety about sex itself.

Go back to the Church Fathers, to Saint Augustine and Saint Jerome, for example, and look at what they have to say. Their writings are saturated with ideas of sexual sin and shame. Those ideas have carried right through to the present day, but they are absurd, miserable, and life-denying, and they deserve our mockery. They exemplify the way that religion does dirt on the good things that this world has to offer.

Unfortunately, there was a lot of 1980s radical feminism that took a similar attitude to that of Christianity and Islam, problematising displays of female beauty and even expressing disgust with heterosexuality itself. This looks like the use of feminist-sounding language to rationalise the religion-based anti-sex morality into which the individuals concerned were socialised. But they lacked the self-insight to understand that it's what they're doing.

Get it clear: there is nothing wrong with the beauty of the human body, male or female, nothing wrong with enjoying it, and nothing wrong with displaying it to the world. If you've been blessed with physical beauty, then for Aphrodite's sake display it; take pleasure in your good fortune, and let other people take pleasure in it. Strut your stuff, and don't let anyone make you feel ashamed about so-called "immodesty". Feel free to scorn the moralism of Islamic clerics and anyone else who tries to put you down.

I find it incredible that there's still so much irrational, religion-based shame and guilt about the body even within Western societies: so much fear of the body's beauty, and of its power to arouse sexual feelings. We see this shame, guilt, and fear even among atheists, many of whom have not fully liberated themselves from traditional morals. (For Zeus's sake, what's the point of being an atheist if you still buy into a version of the same old religious morality? You need to get beyond that.)

Let's return to a healthy pagan value-set. For the Greeks, beauty, creativity, analytical intelligence, athletic ability, and many other things would have been seen as excellences that it's good for a human being to have. Unfortunately, few of us possess them all (I most certainly don't!), but all of them are worthy of enjoyment and celebration wherever and whenever we do encounter them. All of these human excellences open up possibilities of one kind or another, and give a sort of power to those who possess them; all of them are admirable; and all of them can be used to bring pleasure to others.

Anxiety about the body and its beauty is sometimes rationalised on the basis that we should value cognitive abilities above physical beauty, though I'd love to see a rational argument as to why we should adopt any particular hierarchy of values. In any event, this is not a zero-sum game. You can have many of these human excellences; they don't exclude each other; and you can take a proper pride in them all.

Immaturity

To quote:

One highly-placed source in the Vatican said: “This could have very severe repercussions and is embarrassing for the British government - one has to question whether the action taken is enough.

“It is disgusting. Britain’s ambassador to the Holy See has been in to see the Secretary of State and explain what happened and this will all be relayed to the Pope.

“It’s even possible the trip could be cancelled as this matter is hugely offensive.”

Cardinal Renato Martino, the former head of the Vatican’s Pontifical Council for Justice and Peace, said: “The British government has invited the Pope as its guest and he should be treated with respect.

“To make a mockery of his beliefs and the beliefs of millions of Catholics not just in Britain but across the world is very offensive indeed.”

Notice the immaturity here? No, not the civil servant who made the original joke - people are entitled to make jokes. I mean the immaturity of these Vatican officials who can't look at it with any sense of proportion. Grow up, children!

There's matter in't indeed, if he be angry.

It appear that some Vatican hierarchs are angry about a joke within the British Foreign Office, where a junior-ish civil servant brainstormed about various unlikely activities for the pope when he visits the UK. They're so angry that some of them supposedly regret the plan for the forthcoming papal visit. Too bad that these regrets will come to nothing and that the British are going to go ahead and waste millions of dollars (and, no, Herr Ratzinger won't be arrested for alleged crimes committed outside of British jurisdiction).

Of course, British government officials have issued an apology - what else could they do, tell the pope to grow up and get a sense of humour? Well, that might have been an idea!

As a matter of fact, the Foreign Office suggestions make a lot more sense than the pope's typical activities on such visits. How many times does it need to be said? The pope is not some kind of moral leader. If anything, quite the opposite. He is the head of a very large, very wealthy, overly powerful religious cult whose "moral" teachings are based on morbid attitudes to the human mind and body. However much or little Ratzinger may be personally implicated in the cover up of child sex abuse cases within the Church - and I'm not following the detail all that closely - he deserves no particular respect in any event. Certainly not the ludicrous deference that he's accustomed to. He's not anyone's holy father, and the sooner his organisation collapses like a house of cards the better. That's not to deny that there are good, compassionate people in the Church, but they could find a healthier environment outside it.

Not necessary (overall, you understand) to destroy sculpture of Muhammad

These women Muslim lawyers carefully considered the issue, you see, and decided that destruction is not necessary. Well, thank Zeus for that.

Federal government wimps out on human rights charter

The Australian government has wimped out by rejecting the concept of a charter of rights to create quasi-constitutional protections at the federal level. This outcome renders the entire elaborate process of the Brennan committee's work last year essentially a waste of money - and of everybody's time. So much effort and public money to avoid any decisive outcome.

Instead, the federal government will introduce a new framework that requires bills to contain ministerial statements of human rights compatibility. These statements are meant to ensure that Commonwealth legislation complies with international obligations, most obviously the many UN conventions to which Australia is a party. That is unsatisfactory, because it provides no basis to test the veracity of these ministerial statements in the courts (or before some other suitably authoritative body). In addition, a parliamentary committee on human rights will be established. That's a joke - essentially we are relying on members of parliament to regulate themselves, when we know that MPs need patronage from higher-level politicians and we've often seen how tempted governments are to overstep the bounds. If ever there's an area where self-regulation is totally inappropriate, surely this is it. An independent and authoritative watchdog was required, whether or not it took the form of a Chapter III court.

To be honest, I had no high hopes for this exercise, especially when it became plain that most members of the committee didn't really get it: I think that Mary Kostakidis probably did, but I have little faith in the others. Frank Brennan, who headed up the consultation committee, is no great friend of individual liberty, and the committee was unwilling even to take note of a glaringly obvious fact: it was working in the year when civil liberties advocates were supporting the 150th anniversary of the publication of John Stuart Mill's On Liberty. That was something to celebrate and emphasise, but it never got a mention. (Was the committee prompted to mention it by anybody? Yes, it was prompted by me - but perhaps by no one it considered important.) Instead, there was a blinkered concentration on what currently happens to be in the heavily-compromised instruments of international law.

There was, moreover, far too much emphasis throughout the exercise on positive rights to resources from the government; the level of these should not, in my view, be justiciable. Its emphasis on positive rights to such things as housing made the committee unnecessarily vulnerable to the charge that it was (thinking of) handing power to unelected judges. Such an accusation is much more difficult to make out - indeed, it is fundamentally flawed - when purely negative rights are involved. The courts should not be deciding on levels of government benefits, but they certainly should be deciding when the boundaries of government authority have been overstepped.

What was desperately needed, at a time when individual freedom, including freedom of speech, is under constant attack from many sides, was a very strong recommitment to liberal principles - to individual freedom in general; to the separation of church and state; to limits on arbitrary government power to punish or detain; and, above all, to freedom of speech. Where these fundamental liberties clash with international human rights law (which provides inadequate protection to free speech, in particular), well ... so much for international human rights law.

Unfortunately, I seem to be the only person in Australia who is saying these things in public. Neither side of politics shows much commitment to individual freedom. There's nothing much that I can do about that by myself - believe me, I've tried my heart out with no real impact - so does anyone care to join me? Maybe someone with more access to publishers and the news media? Hmmm?

More on the National Prayer Day case

As I reported about a week ago , a federal District Court in the US recently struck down a statute providing for a "national day of prayer": Freedom from Religion Foundation v. Obama (15 April 2010). At the time, I said that I had no idea whether the administration would appeal, but it soon became obvious that an appeal would be lodged. Sure enough, this has now happened.

This case still strikes me as a no-brainer. An institution such as National Prayer Day clearly gives government endorsement to a form of religion, and any statute that underpins National Prayer Day is to that extent repugnant to the US Constitution - more specifically the First Amendment, which forbids any law concerning an establishment of religion.

Nonetheless, there is some room for the argument that certain relatively minor endorsements of religion by the government are constitutionally acceptable. Given that fact, and given that the administration is under political pressure to defend National Prayer day and other government-level endorsements of religious belief, it is not surprising that an appeal was filed. I'm not especially troubled by this - all litigants have a right to appeal and test the law - but there's one aspect that does worry me. The appeal does not merely dispute Judge Crabb's opinion on the merits. Much worse, it attempts to deny the Freedom from Religion Foundation's standing to pursue its case against National Prayer Day in the first place.

This is an appalling development because it has the potential to render laws that breach the Constitution almost invulnerable to legal challenge whenever the breach is a mere endorsement of religion by the government and doesn't compel any conduct from citizens. While more tangibly oppressive laws might still be open to attack in the courts, in appropriate cases, an unconstitutional law whose forbidden effect is "only" government endorsement of a religious viewpoint, affecting all citizens in a relatively inchoate way, would not be. This would create injustice.

A law with broad effect on everybody in the society, but not damaging anyone in particular, should be open to challenge from any concerned citizen. Otherwise, the legislature is free to enact whatever unconstitutional laws of this kind it wishes, and no one will have standing to do anything about it in the courts. Surely that can't be right.

My fear, however, is that the courts might be tempted to go along with such an approach, since it would enable them to dodge the merits of many unconstitutional but popular laws. That temptation should be resisted. The constitution is the consitution, the legislatures of the US have no business in enacting laws that contravene it, and the courts should face up squarely to cases where contraventions are alleged. A law whose unconstitutionality affects every citizen, rather than altering the rights of some particular category of persons, must not be saved by the contrivance that there is no class of people with standing to challenge.

As the current batch of cases works its way through the courts, some American laws that endorse religion may end up surviving on the basis that they do not "really" endorse religion at all. Rather, goes the argument, they merely use high-blown traditional rhetoric: they make reference to an unspecified god in order to provide a ceremonial aura of solemnity. This argument can be applied to the expression "In God we trust" on the legal tender of the United States of America, to the words "under God" in the Pledge of Allegiance, and to the use of religious language and ritual in various formal settings, such as prayers and invocations of God in legislative chambers and courtrooms. The courts are not willing to say that any constitutional breach is de minimis (trivial) so they prefer to find a doctrine to support the claim that there's no breach at all. Hence, they have been developing a doctrine of "ceremonial deism" to cover some of these situations.

At the moment, we don't know which words and practices (if any) will be saved on the basis that they merely use the language of ceremonial deism to impart a sense of solemnity. The idea of ceremonial deism is still at an early stage and has not been fully thought through; we'll need to see more decisions from the courts, especially the US Supreme Court. Clearly, many religious people will not be happy if cherished words such as "under God" in the pledge survive only as ceremonial deism, because such words do have religious, not merely ceremonial, significance for many Americans. If the courts save some words and practices on the basis that they are ceremonial and don't literally mean what they say, that's a somewhat Pyrrhic victory for the religious. Nonetheless, it is likely that this doctrine will be developed and applied to various factual situations, if only because it provides the courts with a pragmatic way to save some laws that are too popular to strike down without risking social unrest.

Be that as it may, the present case is not one where the law can be saved on the basis that it is merely ceremonial. National Prayer Day and its supporting legislation don't provide a case where flowery traditional language is attached to something of independent seriousness and importance, such as a pledge of allegiance to the nation, or the nation's legal currency, or the functioning of organs of government such as courts and legislatures. Rather, National Prayer Day stands alone as a call to the citizens to engage in acts of prayer, presumably to a deity that answers prayers or takes some gratification in hearing them. While there is always a modicum of doubt available, particularly when the relevant legal doctrine is so undercooked, National Prayer Day seems more straightforward than the other obvious cases. As Judge Crabb said in her opinion:

It goes beyond mere "acknowledgment" of religion because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context. In this instance, the government has taken sides on a matter that must be left to individual conscience.

Exactly so, and the government should not be doing that. The impugned law has no plausible secular purpose whatsoever, not even a ceremonial one. On its face, easily confirmed by the legislative history, it clearly amounts to government urging of citizens to engage in a distinctively religious practice. If the courts can save National Prayer Day, they can save almost anything, since this is such a weak case for the ceremonial deism theory or anything like it.

Judge Crabb was right to find that the National Prayer Day legislation is unconstitutional. The appeal court - and the Supreme Court if the case ends up there - should have the integrity and courage to reject the administration's appeal.

Oh noes, Hans Küng is too evident!

The renowned Catholic intellectual Hans Küng is too damn evident. In the French sense, of course. Not only did he buy himself a (gasp!) nice car nearly over 40years ago at the time of Vatican II; he has now said what many others are thinking about the morally and intellectually bankrupt Catholic Church.

His advice is probably good, but les salauds (to use another French expression) won't take it.

Jenny sells a new story to Cosmos magazine

News like this could cause earthquakes and other dramatic geological events. Read all about it on Jenny Blackford's Living in the Past blog over yonder.

Sean Williams catches a flea

Sean's take on David "the Flea" Hart is a bit more concise than mine.

Marke but this flea

After the publication of The God Delusion by Richard Dawkins, many quick, opportunistic books were written in reply. Dawkins responded by referring to their authors, among them David B. Hart, as his "fleas", referencing a poem by W.B. Yeats.

Well, Hart has now published a long rant at the theocratic apologetics site FirstThings, which advertises itself as advancing "a religiously informed public philosophy for the ordering of society." Hart's piece stands as a sort of review of 50 Voices of Disbelief: Why We Are Atheists (surprise! surprise! he didn't like it), but it goes on to attack the "New Atheism" more generally, with particular attention to Richard Dawkins, Christopher Hitchens, and A.C. Grayling. 

Much of the rant consists of an attempt to defend the hopeless Argument from Contingency. All things that we see are contingent: i.e., they might not have existed. Sure, there might be causal explanations for their existence, but if you trace those causes back far enough, you still come to something that (logically speaking) might not have existed, so eventually (it's claimed) you need to postulate something that "necessarily exists" in order to explain the whole shebang. This is God, or so the argument runs. 

But for a start, even if God does exist he (logically) might not have. Turning this around, it's logically possible, even in a world where God exists, that he mightn't have existed. There's nothing self-contradictory about a description of a world with no omnipotent, omniscient, angry, wine-loving, shellfish-abominating being. (Note: by "world" here we don't mean "physical universe"; we mean the entirety of reality including whatever spooky, non-physical ontology it might have.) The concept "God", however exactly we define that concept, is not instantiated in the actual world as a matter of logical necessity any more than the concept "neoconservative wanker" is (the world just happens to contain a lot of neoconservative wankers; as far as logic is concerned, it might not have). Even if God happened to exist, it would still be logically possible that "God" is an uninstantiated concept.

Meanwhile, there's no reason at all to worry that it's logically possible that whatever things do happen to exist might not have, or that it's logically possible that different things might have existed. Sure, the world - including any spooky ontology it might involve - could (where "could" refers to logical possibility) have been different. So what? It's a brute fact, not something required by logic, that the world is as it happens to be. Who would ever think otherwise, unless in the grip of a religion? Even Hart ultimately distances himself from the argument, sensing its sad lack of legs. The Argument from Contingency gets nowhere, and it acquires whatever thin veneer of plausibility it might have only by relying covertly on archaic concepts of necessary being and the like.

Alas, you can have a concept, and attach to it the high falutin' formula "absolute actuality", but you do not thereby guarantee that the concept is instantiated in the real world. Thus, God would be just as contingent as anything else. 

You'd think the numerous historical failures (including that of Goedel!) to get an ontological argument off the ground for more than a few confused seconds would provide enough warning as to why contingency arguments inevitably crash down in flames. If ontological arguments fail, you don't have a necessarily-actualised concept of God, but if you don't have that you don't a decent argument from contingency. The Argument from Contingency is parasitic on the Ontological Argument.

Ontological arguments always fail, once they are carefully picked apart, because you can't just take the concept of some sort of substantial, if spooky, thing that is imagined to have various specific properties - e.g. being omnipotent, loving wine, hating shellfish, ordering genocides, prying into people's bedrooms, and so on - then define the concept into being actualised. It doesn't work that way. Commenters at Dawkins' site are having a field day with Hart.

Talk at Macquarie University

Tomorrow - or technically today, since it's after midnight - I'll be popping down to Sydney to give a talk at Macquarie University, to the redoubtable Macquarie University Atheist League.

This is the same student organisation that recently hosted a debate between Dan Barker and Cardinal George Pell, when Barker was visiting Australia (there were a couple of other debates, too, involving Barker, who gave very generously of his time).

My topic is "Church/State Separation and the Harm Principle", and I'll be sweeping through history and philosophy to argue for a purely secular state that protects worldly things ... rather than trying to discover and enforce the all-things-considered "right" morality. I'll begin with the political triumph of Christianity in the later centuries of the Roman Empire, describe the spirit of intolerance and persecution that the churches have displayed ever since, hit some high spots with John Locke and John Stuart Mill, and segue into a few observations about the culture war that we are involved in today. The case I'll be making should appeal not only to atheists and other secular folks, but also to Christians who are prepared to consider it seriously. After all, Locke developed his ideas for the benefit of the Christian churches and sects of his time, who'd been at each other's throats for 170 years since Luther's challenge to the Catholic hegemony in the early decades of the previous century. Indeed, Locke thought that there perfectly good secular reasons to persecute atheists!

But when the Lockle's ideas are taken to their logical, and very plausible, conclusion, they have much to offer atheists and rationalists, as well as thoughtful Christians. Indeed, they have the potential to prove more than contemporary theoconservatives are ready to stomach - that's one reason, it seems to me, why we have a culture war.

I'm looking forward to this gig, so before I go to bed I'll be praying to Apollo - who seems like the right god on this occasion - that it all falls into place.

Who will the Catholic Church blame today?

Find out here. 

Look, seriously, who are we going to blame for the all rape and other sexual abuse of children - not to mention other kinds of horrible cruelty to them? Who should be blamed that so many in the religious orders of the Catholic Church have done so much to defenceless kids, have done things that ordinary, decent, compassionate people of the same faith, or other faiths, or no faith at all, can't even get their heads around? Why did this happen? And why was it covered up so heartlessly and for so long? The Vatican hierarchs and their lackeys will blame anyone and anything ... apart from their own secretive institutions of governance, their morbid attitudes to sex and the body, their absurd and damaging system of religious celibacy, their delusions of moral superiority.

Stop it!

There are many kind, goodhearted Catholics out there who must be troubled by the events as they've unfolded, tormented as they try to sleep at night. How did this happen within the True Church? You're not to blame, folks. I may disagree with you about many things, but I don't say that you are bad people. Most of you had no idea what was going on. Still, you've been duped and betrayed - and it's time to vote with your feet. Just leave the Church. Stop giving them your money. Stop giving them your support. Stop listening to their excuses; and whatever you do, don't protect them. Just leave. Go anywhere at all, within reason, because you can't do much worse.

Walk away. Just. Leave.

Spread the meme.

H/T John Wilkins.

"Did thee feel the earth move?"

H/T to big sis for finding the article and to Elaine Miller for suggesting the title.

Sexy dressing leads to earthquakes. By posting this photo of Anna Kournikova, I could be dooming the entire eastern seaboard of Ausralia to disaster.

Capistrano case - qualified immunity

Here is the opinion of Judge Selna, back in September 2009, which ruled that Dr James Corbett had qualified immunity in respect of the one statement he made that was previously held to be a constitutional breach. As a result, he ultimately won the case, in the sense that he was held not to be liable for any remedy or for the costs of the student concerned.

This was the case in which a student took his history teacher to court over various remarks that were supposedly disparaging of religion.

Note that qualified immunity may or may not apply in any future such situations. It is important that an element of the finding is that the law was unclear in 2007 when Corbett made the remark. Still, the judgment is worth reading in the light of recent discussion in the blogosphere of the rights of teachers in US state schools who may be at risk of litigation for saying something that is held to be disparaging of religion. It shows the court taking a reasonable approach, and that teachers will not lightly be subjected to some kind of legal liability for a statement that was not deliberately intended to disparage religion. Law suits brought by plaintiffs seeking to harass teachers will be brought at a high risk of gaining no remedy and accruing substantial costs.

These paragraphs from the concluding comments are useful:

Public officials have no choice about interacting with the public; that is their job. Unlike interactions in the private sector, every interaction brings into play potential Constitutional rights and the possibility of infringement of those rights. Perhaps this is most clearly seen in the context of law enforcement where advisements of Constitutional rights, search and seizure issues, and the use of lawful force are a part of a police officer’s daily responsibilities. But the same is true of a teacher presenting a challenging subject such as Advanced Placement European History which cannot be fairly treated without discussing religion, just as Corbett was doing during the fall of 2007.

Public officials must be able to do their jobs without fear that every misstep, however slight, will subject them to liability and the paralysis which goes with such a fear. Thus, the doctrine of qualified immunity looks to whether there was a clearly established right in issue. Here, the Court has found that there was not, and thus Corbett is shielded from liability–not because he did not violate the Constitution, but because of the balance which must be struck to allow public officials to perform their duties. The law as it existed in the fall of 2007 did not make clear that a single statement in an area of the law which lacks precision could violate the Constitution. The decision here on the merits advances the clarity of Farnan’s right to be free of anti-religious comments, but the extent of the advance and the results of future applications of the doctrine of qualified immunity in this area are for another day and another court.

It does seem on the current state of the law that only statements that are deemed by a court to be gratuitous will, all by themselves, attract potential liability. Notice that the comment that caused the most trouble for Dr Corbett was made to students in class about another teacher (a Creationist); it was not part of the structured content of a history lesson: "I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense." Accordingly, the judge says:

The Peloza statement had no relationship to Corbett’s AP class; it was a gratuitous divergence which cannot be saved by the fact that it was made during the AP class. That statement was the proper focus of the Court’s analysis.

A comment with a proper pedagogical purpose within the course of a lesson, or a mere word or two in a paragraph (or even the whole paragraph) of a textbook will not be looked at in isolation. The overall intent and effect of the lesson or book, or whatever it may be, will be considered (though the courts will surely not apply this idea in a way that allows premeditated contrivances).

A teacher who actually sets out to disparage religion, or a religion or doctrine - or a fellow teacher's religious beliefs! - as part of lesson may be asking for trouble. But given the resolution of this case to date there's no need for teachers who are acting in good faith to panic. Indeed, the opinion cites some very comforting authority from a Ninth Circuit case:

The Ninth Circuit has recently explained that "because whether a public employee’s speech is constitutionally protected turns on a context-intensive, case-by-case balancing analysis, the law regarding such claims will rarely, if ever, be sufficiently ‘clearly established’ to preclude qualified immunity." Dible v. City of Chandler, 515 F.3d 918, 930 (9th Cir. 2008). The present case is not one of those rarities.

The whole case is now on appeal, and perhaps some more clarity will emerge when the appeal court decides it more authoritatively. Then we can have better informed discussions about how much American teachers really need to watch their backs when the subject matter relates in some way to religion.

New look for Butterflies and Wheels!

Check it out!

If I could lead the cat herd

If I could lead the cat herd, we'd make a few changes. Why?

For a start, I don't see moderate/liberal religion as a terrible problem. I've really never bought into this element of what I see in, say, the work of Sam Harris. Some forms of liberal religion are so non-literalist that they can't even be considered incorrect - they make no or few truth-claims about the supernatural and see the holy books as historical documents to be studied for whatever wisdom they contain, much as we study The Iliad. These sorts of non-literal religion are potentially all consistent with each other, and also with humanistic philosophies.

Even more literalist religious positions that involve a belief in some kind of supernatural order may be no great problem, and indeed they can inspire people to do good. I'm not going to say that Martin Luther King was a bad guy just because he believed in some (probably heretical) version of Christianity.

These kinds of religion only become a problem when their leaders tell critics of religion to shut up, and try to convince everyone that almost all religion is harmless or even beneficent. Thus, Karen Armstrong is fine when she enunciates her own positive religious understanding. She only becomes a problem when she tries to convince people that all religion is "really" like that and we should stop being so nasty about it. I can't imagine her ever flying a plane into a building or even trying to introduce draconian laws that restrict personal freedom (though perhaps I'm wrong about the last bit). Really, if she'd just offer her positive message and stop trying to deprecate the less savoury aspects of the religious traditions, we could get along.

Note, though, that Armstrong is no worse than an explicitly atheistic accommodationist like Chris Mooney. It's not her mild religiosity that's the problem; it's her urge to dampen a necessary debate about the place of religion in modern society.

Still, the real problem is not religion in itself. Many of the pagan religions of antiquity, after all, were not so bad. They didn't have very much of the elements that I'm about to identify. Indeed, those elements are very largely confined to the Abrahamic tradition. To some extent, they turn up in the Eastern religions, but much less so.

The problems are apocalyptic and totalitarian thinking; the accompanying spirit of intolerance and exclusivity; misogyny, sexism, and shame about the body; and associated homophobia. Greek paganism certainly had more than its fair share of sexism - it's easy to find this running through the myth system. But the other things just listed ... well, not so much. Ancient paganism wasn't totalitarian, or apocalyptic, anywhere near as intolerant as Christianity has proved to be, or anywhere remotely as obsessed with sexual sin and guilt. If Greek paganism made a comeback, it would have to adapt to the idea of women's equality, but otherwise it wouldn't be a huge issue. It wouldn't create Crusades and jihads, suppress art and science, persecute homosexuals, or torture heretics.

By contrast, much in the Abrahamic tradition is totalitarian, apocalyptic, arrogant, officious, intolerant, misogynist, homophobic, puritanical, prurient, and persecutory. The totalitarian, apocalyptic, and persecutory elements, in particular, but also some of the others, were taken over by various ways of thinking they sprung from the Abrahamic tradition, notably the apocalyptic cults of Nazism and Marxist-Leninism. Then there is the specifically anti-Semitic intolerance that looms so large in Christianity, and which led directly to the Nazi holocaust.

But there are modern forms of Abrahamic religion that are politically liberal and not apocalyptic. Some of them have also purged themselves of the other stains on their tradition - the misogyny, etc. I don't see adherents to those forms of religion as my enemies, for much the same reason as I don't see religion itself as the real enemy. In the American culture wars, progressive religious people have defended such things as gay rights, abortion rights, rights for women more generally, racial equality, and freedom of speech. In recent decades, organisations with large numbers of religious adherents such as People for the American Way have been invaluable in the struggle against creeping theocracy.

So if I were leading the cat herd, I'd like to stress that the problem isn't so much religion in itself, or even the Abrahamic tradition in itself. It is, first, the many deplorable elements - the apocalypticism, totalitarianism, sexist, puritanism, intolerance, etc. - that are so prevalent in the Abrahamic holy books and traditions. But it is not every single element of those traditions.

And more proximately, the problem is whatever systems or styles of thought have absorbed the worst elements of Abrahamic tradition. This includes the worst kinds of apocalyptic communism, Nazism, and fascism, all of which arose from Christianity.

I think the above is (1) more accurate than a line that identifies religion itself as the problem, even when the religion concerned is entirely or relatively anodyne; (2) principled in identifying the real problems that have come to us, historically, through the Abrahamic tradition in particular; (3) likely to help us deal with mildly religious people who share our political values and are just as repulsed as we are by the more barbaric elements of their traditions.

National Prayer Day to go ahead in the US

National Prayer Day, on 6 May 2010, will go ahead in the US despite the court ruling that its supporting legislation is unconstitutional.

Nothing much should be read into this, however, since the court issued an injunction that will only come into effect after appeals from its judgment are exhausted (assuming that the judgment survives appeal). The case is headed to the next level of the court system, so the government is legally able to go ahead this year.

I'll get to the full opinion of Judge Crabb as soon as possible.

A no-brainer? - Freedom from Religion Foundation v. Obama

This post is just a place marker: for the moment, note that a federal District Court in the US has just (on 15 April) struck down a statute providing for a "national day of prayer". I haven't yet read the 66-page opinion of Justice Crabb.

This case should have been a no-brainer - if a statute of this kind is not an unlawful establishment of religion, then I'm going to be the next pope.

Will the US government appeal? I have no idea. But I can't see how an appeal could be successful. Well, um, yes ... I'm afraid I can. It might go all the way to the Supreme Court, which seems like it's itching to craft some kind of de minimis exception so as to save popular forms of "ceremonial deism", such as the words "under God" in the Pledge of Allegiance. This case could be another such example. So, okay, I'm not sticking my neck out and saying that this decision will definitely hold up if appealed.

What I do say is that it ought to stand, as a matter of constitutional principle. Under the US Constitution, Congress has no business enacting a statute that so explicitly endorses a particular kind of religion, in this instance the kind that involves prayers to a God of the sort who listens to them.

Good for the Freedom From Religion Foundation for taking this on. I'll say more when I've read the opinion of the court.

Index on Censorship on the BCA v. Singh libel case

Go here for an interesting discussion and some links.

(H/T Ophelia Benson.)

Cold water

Expelled revisited 

 A couple of years ago, I wrote in defence of the makers of Expelled, who'd used a small amount of John Lennon's song "Imagine" to make a point in their meretricious film. Jim Lippard has a very good summary of events in both the real world and the blogosphere here. Although I don't claim to be an expert in intellectual property, and particularly on the American statutes and case law, it seemed to me throughout that the principles behind the law should favour the makers of the movie.

When the case found its way to court, the judge ruled in their favour, using reasoning quite similar to mine (though obviously far more informed about the detail of the actual law).

Although Jim Lippard took the same view as I did, we were swimming against the tide of opinion in those waters of the blogosphere that we tend to frequent. I was amazed at how many atheists, sceptics, and freethinkers suddenly became advocates for the most overreaching aspects of intellectual property law, not to mention the extravagantly generous interpretations of it in the practices of the American entertainment industry. It seemed that they became zealous advocates of IP rights because the "bad guys" in the case under discussion were the ones who were arguing for fair use and for constraints on intellectual property in the name of free speech. They were not standing back and thinking about what the policy of the law - which applies to both "bad guys" and "good guys" - should be.

Despite the shoddy aspects of Expelled, which features a defence of Intelligent Design and involved various morally questionable practices in its making, intellectual property rights, specifically those relating to copyright, are an artificial exception to our freedom to use information. There is a reasonable policy behind intellectual property: it rewards efforts in creating such things as inventions, designs, stories, songs, and so on, and thus encourages creators by giving them a source of income, even wealth in some cases. Fair enough so far. But it thereby carves out an exception to the ability of people to say what they want, adapt the inventions of others to their own purposes, etc. The exception can't be allowed to swallow up the rule. Intellectual property rights should not be used to wipe out large areas of free speech.

On pouring cold water 

Now and then, I am going to pour cold water on the enthusiasms of people who are generally my allies but don't necessarily have a good understanding of how the law all fits together, or of the policies and principles behind it. The controversy over Expelled and its use of "Imagine" was one such example. Obviously, no one has to defer to me. In some cases, my views on legal principle will not be supported by courts when push comes to shove (though I have a pretty good success rate over the years, both in my prognostications on this blog and during my years of quasi-legal work and my briefer time in professional legal practice). Be that as it may, I'll go on saying what I think about the law and the policies and principles behind it, even when I find myself in the uncomfortable position of having most of my friends disagree with me.

Arrest the pope? 

No one will disagree with me, I imagine, in my support for the reasoning of the Court of Appeals in the UK in Simon Singh's libel case. I think the logic of the joint judgment is very compelling and that there was little prospect of challenging it successfully in the Supreme Court (formerly the House of Lords - a judicial body that is not the same as the upper house of parliament in the UK). It looks as if the BCA has come to the same conclusion, based on its legal advice.

But some are certainly going to disagree with me when I say that the current calls to arrest the Pope when he visits Britain later this year are legally misguided. It only took me a few hours of research on the internet to conclude that the legal theories being offered by Geoffrey Robertson and others are very dubious. My first response of any substance was in a comment over at RD.net:

If Geoffrey Robertson wants to test the law on these issues, I wish him every success. I have to say that I don't think the case will succeed. The claim that The State of the Vatican City is not a legitimate country in international law looks murky to me. It does look as if it's legally a country, even though not a UN member, and that the pope is its head of state. And then there's the legal effect of the fact that the pope is also the head of the Holy See, to which the UK doubtless provides an ambassador and which it otherwise recognises as a sovereign entity in its own right (in addition to Vatican City). That alone would seemingly give the Pope immunity from prosecution in the UK. And odious as the institutionalised sexual abuse of children within the care of the Catholic Church has been, this is not a classic case of crimes against humanity. Normally, you'd think of a campaign of persecution by a country or an unofficial regime of some kind (like warlords or rebels who are in control of territory). In the classic kind of case, they'll be mounting, or at least somehow allowing, a recognisable campaign of persecution and terror against either a group of their own citizens or people who live in territory where they've established control. What we have with the Catholic Church's institutionalised cover ups of rape and other abuses by its priests, etc., doesn't easily fit that picture. There's a legal definition, and arguably it can be broader than that sort of case. All the same, Robertson will need to work very hard to show that this situation falls within the definition, rather than just being a whole lot of largely-unconnected crimes in many different countries, properly falling under the ordinary laws of those countries. All that said, there's at least been something like "a wide practice of atrocities tolerated or condoned by a government or a de facto authority" if you read those words cold. I can see why somebody like Robertson would be prepared to argue about how far the wording stretches to cover unusual situations. So why not get the point clarified by the courts, if possible? 

I've now changed my mind about this. I was right to think that Robertson's theories are dubious, but I now think that I initially underestimated just how dubious they are. It now appears to me that Robertson is seeking a very expansive interpretation of an area of international law, i.e. the law relating to crimes against humanity, that is intended to be construed strictly and narrowly. For a stronger dose of reality, see this thread on Jack of Kent's blog. Robertson has a powerful legal mind, of course, but he is also pushing very hard against the limits of the law. My confident prediction is that none of this will intimidate the pope into cancelling his visit to the UK. When he visits to the UK, he will not be arrested for any crime.

"So what?" you ask. So, let's be responsible 

"Fine," you say, "but so what?" Why not use discussion of the outer, speculative limits of international law as a way of giving publicity to the pope's past involvement in the practice of transferring pedophile priests to new parishes, rather than removing them from the priesthood? Well, I'm all in favour of publicising this. The Church's approach did enormous damage, and we can see what a morally corrupt institution it is. But I'm not in favour of obtaining publicity by spreading to the public highly speculative, and probably incorrect, theories about the law. Not unless we give them something more like the full story.

In my opinion, Robertson's conduct is getting close to irresponsibility. I say "getting close", because there is a degree of hedging when you read what he says carefully. But Robertson is a noted expert on international law, and people who are not expert - and especially people with no legal training - are likely to defer to him. Some are not noticing the degree to which he is hedging, and, frankly, I don't think he hedges anywhere near enough to provide a realistic impression. It would be good if his public pronouncements contained a stronger element of realism, amongst the creative theorising. 

If you take Robertson's theories as fact, or as the nearest thing you can get to it in the law, you'll be misled. For scientists, they are the equivalent of a radical and untested set of hypotheses, not the equivalent of well-corroborated theory. I wouldn't want to square off in a courtroom against someone with Robertson's legendary forensic skills, but I don't trust his judgment (at least as he's expressed it publicly so far) on this issue. He's writing like an advocate in the courtroom, putting a brave legal theory in rather one-sided way. That's what barristers do (of course, it's the opposite of what philosophers do, and also the opposite of what barristers do when actually preparing to go to trial; in both of those cases, the task includes identifying and considering the strongest case for the opposing viewpoint). 

No matter how skilled a lawyer Robertson may be, he's not necessarily correct on any particular question of law that hasn't been tested. In this instance, I think he's almost certainly wrong if he thinks there's any reasonable legal prospect that the pope could be arrested in the UK for crimes under any municipal jurisdiction or under international law. That's not going to be a popular conclusion among my friends, but it's what I honestly believe.

BCA throws in the towel

h/t Kylie Sturgess.

The British Chiropractic Association has filed notice of discontinuance to end its libel action against Simon Singh! I don't know what deal, if any, may have been done on costs (or anything else), but this looks like an admission of defeat.

Yay! Here's a victory for scientific reason and for freedom of speech. I'll have more to say as and when more is known.

Edit: Useful posts (and threads) by Jack of Kent over here. Quote: "The appeal case is, in my view, now binding authority on the High Court that adverse but good faith statements regarding evidence must be treated as having the defence of honest opinion."

That sounds right, and it makes the UK law much more manageable for people who wish to engage in robust public debate about matters of contested evidence. There's still a long way to go, though, to give stronger protection to freedom of speech.

Further edit: Go over here for what is currently your best source of information. It now seems clear that no deal has been done on costs, and there'll need to be further negotiations/litigation on how much of Singh's 200,000 pounds of legal fees gets paid by the BCA. Since the BCA took what proved to be an unmeritorious claim, Singh should get full costs. However, note that "full costs" does not actually mean everything he spent. I'm not familiar with the details of the British system, but it's similar to the Australian system, so what I'm about to say will be at least approximately correct. Go to a British lawyer if you want something more precise.

Here, it works roughly like this. Costs would be assessed on a party-party basis, which essentially means that all the items in Singh's legal bill will be assessed not on the basis of what he actually paid but what such items cost, nominally, against a standard schedule of fees used by the courts for assessing costs. Lawyers are free to charge more than this, and they almost always do. Items considered unnecessary or irrelevant to the litigation will be struck out in the assessment, though that probably won't be (much of?) an issue.

I suppose the policy behind this approach to costs is that losing litigants can't be expected to pay monstrous sums merely because the winner chose to use incredibly expensive solicitors and counsel. The system may be defensible in that respect, but the downside is that even winning litigants very seldom get their actual legal costs back.

There's some talk on the site that I linked to above that Singh will still end up about 20,000 pounds out of pocket. From my experience, that actually sounds optimistic, but perhaps his lawyers were very reasonable - compared with market rates - in what they actually charged him. Be that as it may, it's still not great, especially when you factor in how much income he has lost from being tied up on the case, unable to work on other things. Libel law really does need to be reformed so that people who speak their minds are not put through all this lightly.

My letter (well, email) to Penny Sharpe MLC

Dear Ms Sharpe,

I am writing to express my support for the planned trial of a secular ethics course developed for NSW schools as a voluntary alternative to devotional scripture classes.

It is disturbing that the trial is being opposed on the basis that secular ethics classes may prove more popular than devotional scripture classes, and may thus reduce the number of students attending the latter. This argument presumes that viable sizes for the scripture classes must be maintained in NSW schools at all costs, whether they are popular with parents and children or not. That, however, is completely the wrong way of looking at things.

Scripture classes in state schools, taught from a devotional viewpoint (rather than an objective and critical one), are both a privilege and an anachronism. In modern pluralistic democracies, the state should be neutral about the truth and social value of religion, and therefore should not be giving opportunities for religious organisations to present their particular, contested worldviews to school students - at least not unless the same opportunities are given to the presentation of naturalistic worldviews. Thus, the provision of time for devotional scriptural classes is a traditional privilege that has been accorded to religion, but which cannot be strictly justified in contemporary circumstances.

Nonetheless, there is a long tradition of NSW schools providing this privilege, and no one is seriously arguing for its removal. No one is even arguing for the same privilege being extended to atheist, rationalist, or humanist groups that might wish to present students with the merits of philosophical naturalism and a life based on reason - though, strictly speaking, the logic of doing so is irrestible if the state is to be neutral between religion and its rival worldviews.

All that is being suggested is that a secular - but NOT anti-religious or explicitly naturalistic - alternative be provided for those students who would prefer it. This is an extremely modest step, and even this is being undertaken only on a trial basis. The degree of solicitude being given to religious sensibilities is already quite marked. The government is bending over backwards to accommodate them. And yet, we still see some organisations and individuals wanting more: seeking, in effect, a guarantee that no effective competition to devotional scripture classes will ever be introduced into NSW public schools, and that scripture classes will always have viable numbers irrespective of how attractive they are to students and parents.

The opposition to a trial of ethics classes is unreasonable and contrary to good political principles. In particular, it betrays a misunderstanding of the relationship between church and state. It is not the purpose of the state to prop up religion, but merely to protect and promote its citizens' worldly interests, including interests in the education and socialisation of children.

Conversely, the proposal for a trial of secular - but, once more, not anti-religious - ethics classes as a voluntary alternative to traditional scripture classes is more than reasonable.

I urge that the government go ahead with the trial, and that you not be swayed in any way by the current campaign against it. While there may be many emails and letters coming to you in opposition to the trial, that merely reflects the conduct of an orchestrated campaign. I can assure you that the trial has strong support within the community, and indeed that I am hearing much outrage about the actions of Archbishop Jensen and others in attempting to get it scuttled before it even begins.

Yours sincerely,

Russell Blackford

Death of Antony Flew

Antony Flew, died a few days ago, aged 87. Flew was a leading philosophical atheist for most of his career, though he switched to a form of deism in the past few years.

He has been much reviled for this, although deism in itself is often a progressive position and it has the merit that it can't be disproved. Historically, many of the American Founding Fathers were deists, as were most of the philosophes of the French Enlightenment. It's possible that Hume and Mill were deists, though it's very difficult to sort out Hume's true position.

These days, of course, the motivation for hanging onto a minimalist god, such as that of deism, seems rather thin, and Flew's own reasoning seems to have been of the "God of the gaps" variety: he could not believe that purely natural causes were sufficient to explain the origins of life. Well, it's true that we don't have an intellectually compelling theory of abiogenesis, but there are many things that we now understand pretty well, though they once defied our efforts. Explanatory gaps tend to close, though (perhaps fortunately) more questions tend to open up.

Perhaps more worryingly than his eventual profession of deism, Flew came to embrace extremely right-wing political positions. Even here, he initially had a point in his criticism of doctrinaire forms of political egalitarianism (all doctrinaire theories of morality or political action have their problems). But he moved far beyond reasonable critique of the grounding for egalitarianism to substantively hard-line and intolerant views on issues of the day.

His best work was done when he was young, but he will still be remembered as a great contributor to British philosophy in the second half of last century.

Sydney Anglican Church opposes ethics classes

The Sydney diocese is atypical of the Anglican Church in Australia, both in the evangelical version of Christianity that it promotes and in its highly conservative views on social issues. As if to underscore the latter, its bishop is currently opposing the introduction of ethics classes into NSW schools as a voluntary alternative to scripture lessons provided by local ministers. Apparently the bish is scared that the ethics course will prove too popular and undermine scripture attendance. That must not be allowed to happen, it seems - so the scripture lessons have to be propped up by not giving NSW schoolchildren and their parents any alternative.

Worse than the above, the NSW government is taking notice, and has given the Bishop of Sydney some kind of opportunity to vet the ethics curriculum. Surely this is outrageous. Why should the local leader of a religious denomination have any more say over this than anyone else in the community? There is no serious suggestion that the program is anti-religious in any way (teaching, say, that the Catholic Church is corrupt), which seems like the only legitimate concern the religious could have.

One might, of course, ask why religious instruction is included at all within the public school curriculum of a country like Australia. Isn't this an indefensible leftover from an earlier time when Western countries liked to think of themselves as "Christian"? Surely those parents who specifically want their children instructed in religious dogma can arrange for it to happen outside of school hours - maybe at Sunday School or the equivalent. Public education is an activity carried out by the state, which doesn't exist to promote either religion or anti-religion, or to adjudicate on their respective merits.

Indeed, if the various local religious ministers are to be allowed onto school grounds to teach religious viewpoints, then local humanist or rationalist leaders should be given the same privilege and allowed to teach their anti-religious worldviews to whichever children want to attend. Fair's fair.

Seen from that viewpoint, offering children a secular, but not anti-religious, alternative to scripture classes, seems like a modest step. It will still be a long way short of state neutrality in matters of religion and irreligion.

If the ethics program is any good, it might be better simply to make it compulsory in place of religious education. Or maybe the freed-up time could be used for secular (but not anti-religious) study of comparative religion. A program of study like that might be genuinely beneficial for children growing up in a pluralistic society. It could contribute to mutual understanding. Why, in the twenty-first century, with so many pressures on the curriculum, is precious time in public schools being allocated to (largely futile) attempts at religious indoctrination?

Yet another review of 50 Voices of Disbelief

This one from an Anglican Church website in Canada!

The gene patents case - Association for Molecular Pathology et al. v. United States Patent and Trademark Office et al.

In this case, decided on on 29 March 2010, the plaintiffs took action in the United States District Court for a declaration of the invalidity of patents held on the human BRCA1 and BRCA2 genes. Variant alleles of these genes have been connected to heightened susceptibility to breast and ovarian cancer. All of the relevant patents were invalidated.

Background

The patents had been issued by the United States Patent and Trademark Office ("the USPTO") to Myriad Genetics and the University of Utah Research Foundation (collectively "Myriad"), giving Myriad a lucrative monopoly right to conduct or license medical tests relating to the genes. Myriad's patents covered the genes themselves (composition patents) as well as processes making use of them (method, or process, patents).

This case provided the opportunity to test the legal validity of gene patents, which have long been controversial but have been issued freely by the USPTO in recent decades. Leaving aside issues of public policy relating to whether such patents assist or impede innovation, it is often thought that these patents are contrived. While there has long been no doubt that the genome of a genetically-engineered organism is patentable, that is because this organism is something new: in effect, it is an invention. Other patents have related to processes or methods for isolating segments of DNA, supposedly purified genes that (it is alleged) are not found in such a form in nature, and methods or processes that make use of DNA segments.

Issues

The lengthy opinion handed down by Justice Sweet deals with various issues; however, these are mainly procedural or otherwise formal. The central issue in the case has always been the validity of gene patents. To give something of the flavour of the claims in the disputed patents, a representative claim in the composition patents reads as follows:

An isolated DNA coding for a BRCA1 polypeptide, said polypeptide having the amino acid sequence set forth in SEQ ID NO:2.

A representative method claim reads as follows:

A method for detecting a germline alteration in a BRCA1 gene, said alteration selected from a group consisting of the alterations set forth in Tables 12A, 14, 18, or 19 in a human which comprises analyzing a sequence of a BRCA1 gene or BRCA1 RNA from a human sample or analyzing a sequence of BRCA1 cDNA made from mRNA of the said human sample with the proviso that said germline alteration is not a deletion of four nucleotides corresponding to base numbers 4184-4187 of SEQ ID NO:1.

The key statutory provision applied in the case was section 101 of Title 35 of the US Code, which provides as follows:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.

Accordingly, the court had to determine whether the relevant segments of DNA and the processes used to test for them could be brought under the rubric: "new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." In the past, it has been authoritatively held that scientific principles, laws of nature, things occurring in nature, and abstract ideas do not fall within the section and cannot be patented.

This reflects the commonsense reality that none of these are the sorts of things that can be invented, though of course the language is more complex as it also refers to somebody who "discovers" a "new and useful process", etc. The US Supreme Court has held that the discovery of natural phenomena is not the kind of discovery that patents were intended to protect and that these phenomena should not be the subject of property claims as they are basic tools for scientific and technological work.

Thus, for a process, etc., to be patentable, it must be novel, useful, and fall within the subject matter of the statute (in particular, it must not be something occurring in nature). In this case, there was no dispute that the subject matter of the patents was "useful".

Outcome

The court held that the composition patents were invalid, essentially because they are products of nature. To overcome this, Myriad would have had to establish that the "isolated" and "purified" DNA segments in question had markedly different characteristics, or were fundamentally distinct, from what was found in nature. Thus, mere extraction and purification of a naturally-occurring chemical element or compound would not be patentable (the process for doing this might be, but not the extracted and purified substance itself). Myriad argued that a purified substance not found in nature in pure form was patentable, but this was rejected.

Thus the question was whether Myriad had patented something with markedly different characteristics from naturally-occurring DNA. On this, it failed: in particular, the isolated DNA patented by Myriad resembled the equivalent naturally-occurring DNA in encoding the same genetic information. Whether this is the correct test will likely be a key issue in any appeal. Note that Myriad argued unsuccessfully that its isolated and purified DNA segments were markedly different from naturally-occurring DNA because of their better amenability for use in, for example, medical tests.

The method patents were rejected essentially on the basis that section 101 did not apply to a mere comparison of a DNA sample from a patient with Myriad's isolated DNA. As written, the patents did not relate to any process of transforming or manufacturing something, but simply covered an abstract mental process of comparing or analyzing. The patents did not cover any transformative acts such as actual steps to extract or sequence DNA, and they could not be read expansively to include these by implication. To do so would mean that any patent could be granted on something as abstract as a mental process to be carried out by some unspecified and perhaps unpatented means. In any event, something more than a mere step of data gathering would need to be included in the patent to make it valid.

One patent related to the use of cells into which an altered BRCA1 gene known to cause cancer had been inserted. Growth rates of the cells could be compared in the presence or absence of a potential cancer drug as a test of its efficacy. This was rejected because it amounted to a patent on the scientific method itself: what Myriad proposed to patent was the broad principle that slower cell growth in the presence of a substance was a possible indicator that the substance could be therapeutic for cancer.

In summary, the patents were invalidated mainly because the composition patents were considered to relate to something too much like a product of nature, without the required marked difference, while the method patents covered highly abstract descriptions of mental operations, such as making comparisons.

Comment

While I agree that all of these patents seem like contrivances to cover essentially unpatentable subject matter, the outcome will doubtless be appealed, and it remains to be seen whether higher courts will agree with me.

The impact one way or another on biotechnological innovation is somewhat imponderable. There are numerous complexities involved, including how Justice Sweet's reasoning would apply by analogy to a drug that is essentially a chemical extracted and purified from naturally-occurring plants. Such a drug might not be markedly different from something found in nature in less pure form, but trialing it might nonetheless be enormously expensive (as is inevitably the case with new drugs). Some kind of intellectual property protection might therefore be in the public interest. While Justice Sweet plays down the likelihood of this kind of situation - he distinguishes the unique information-coding characteristics of DNA - it is difficult to rule out.

At the same time, there could well be inefficiencies, hindrances to innovation, and harsh outcomes for members of the public such as cancer patients if the USPTO and the courts continue to allow a regime of massively fragmented intellectual property rights in short segments of DNA.

It may be that legislatures will eventually have to develop a separate scheme of intellectual property for the biotech industry to handle the unique and competing public interests involved. At the moment, however, any such resolution seems far off.

Harris gets it right!

For those who might think I am carping too much about Sam Harris's TED talk, do remember that my original post about his talk was very positive. My posts since have been to explain points, answer objections, and explore metaethical issues for their own sake (as I always said I'd do).

And here's something else. I'm re-re-reading The End of Faith, and enjoying it. If you've never read it, do yourself a favour and spend a day doing so. It contains much wisdom and much powerful writing ... and I can report that on page 179 Harris puts exactly the right argument against vulgar moral relativism! Go and look it up.

I can also report that on pages 170-71 he claims that "questions of right and wrong are really questions about the happiness and suffering of sentient creatures." Now, I could quibble about this. E.g., it is difficult to find a value-free definition of "happiness" and a good metric for happiness (whatever it is) and suffering. Moreover, there may be other values that are relevant to morality.

But all that said, it's a plausible normative claim. There's no attempt here to bridge the "is/ought" gap and establish objectivity. Rather, it just says something that any sane person will agree with as at least a reasonable first approximation to a ruling normative principle. Happiness of some kind and amelioration of suffering are at least extremely important things to consider in making our first-order moral judgments, and Harris is surely correct that much religious morality has gone off the rails in not paying prime attention to these things.

But notice the difference between this formula, in The End of Faith, and a formula like, "Values are facts about the happiness and suffering of sentient creatures." No, that's not right. The values in question just are "the happiness of sentient creatures" and "amelioration of the suffering of sentient creatures". Those are the things that we value and hope to see instantiated. The morally-relevant facts (e.g. "If I do X then B will suffer") are facts that are about happiness or (non)-suffering. So the formula is back to front.

If anything, it should be something like: "Morally-relevant facts are facts about values to do with the mental states of sentient creatures (namely the values of happiness and non-suffering)." (We could add that whether the value of happiness, say, is instantiated in a particular situation involving a particular sentient creature depends upon a state of affairs in its neurological system. Another way to put this is to say that a state of affairs in Spot's brain is the truth-maker for the proposition: "Spot is happy.")

Undoubtedly, the values in question - i.e. happiness and non-suffering (or amelioration of suffering) - are very important ones that largely or wholly underpin any plausible system of morality. On that much, and much else, Harris and I are agreed.

With any luck, the new book from Harris, which I'm looking forward to reading, will use the same formula as in The End of Faith, which I think we should be quite comfortable about as at least a good approximation. I hope it does not get too bogged down in esoteric metaethical claims about bridging "is" and "ought", etc. If you start out with some plausible, non-arbitrary oughts, there's no need to build any such bridge in some non-standard way. If the book does something a bit like the job (at more length, and with more depth depth and sophistication) that is done in Chapter 6 of The End of Faith, the result will be very useful.

Metaethics makes slow progress

Metaethics is one of those fields where the wheels grind very, very slowly. I do think it's making glacial progess. But just as there has been huge resistance, over the centuries, to the idea that God does not exist, so there has been huge resistance to the idea that there are no objective moral oughts, in the strong sense of "objective" that ordinary folk and many philosphers seem to want. Then again, philosophy only ever makes progress in the face of strong resistance from people who are committed to saving the appearances/and or the traditional picture of the world.

The interesting question at the cutting edge of metaethics is what follows if we accept that morality is not objective. I.e., if we accept that the answers given to moral questions do not genuinely have the absolute bindingness and irresistible practical oomph that is usually assumed in moral debate. Richard Joyce captures the idea with two propositions:

1. Moral discourse presupposes non-institutional desire-transcendent reasons and non-institutional categorical imperatives. BUT

2. All genuine desire-transcendent reasons are institutional and all genuine categorical imperatives are institutional.

That's a technical way to put it, but I think it's pretty much a correct statement of the problem. There are reasons for action based on desires (or fears or wants or other such psychological phenomena), and there are imperatives contained in positive moral systems, systems of law, etc. But when we try to give a further reason to abide by the imperatives in positive moral systems, we'll end up appealing to psychological phenomena, not to something that is both (a) built into the external fabric of the universe and (b) itself imperative-delivering. There is nothing like that (and, I submit, even God could not be like that).

So how should we respond to this horrible suspicion - nay, truth - about morality? E.g. should we stop using moral language entirely (in a similar way to the way that many of us have stopped using theological language relating to "sin")? If so, how should (tricky word) we talk when we want to discuss what people ought to do? We seem to need some concept like that, and it needs to go beyond the idea of practical rationality (acting in the way that will achieve your own desires, etc). No one denies that there are oughts of practical rationality, but these are, in an important sense for this debate, subjective.

The guy to watch in metaethics is the above-mentioned Richard Joyce, who now teaches at the University of Sydney, and is embroiled in these debates. He's young, he's on the ball, and he's a much better philosopher than Sam Harris, at least when it comes to metaethical issues. Unfortunately, his new book is not likely to be a best-seller. (It's not even affordable to individual people; meaning that he and his co-editor couldn't find a publisher that was prepared to order a print run large enough to bring down the unit cost.)

I'm giving a paper on some of this in July, at the next AAP (Australasian Association of Philosophy) conference, but after thinking about it hard for the past several days, I'm now uncertain what I want to say. Though I'm not very impressed by the metaethical end of what Sam Harris is doing lately, and I think it's far behind the cutting edge of metaethics, I sympathise with him to an extent. This stuff is difficult. We've managed to adapt to the idea that there is no God and therefore no "sin". But it may be more difficult to adapt, psychologically, to the idea that there are no objective moral oughts built into the fabric of the universe or the nature of reason.

I'm now not sure what I think should be said about how we ought (that word again!) to use moral language ... given that morality can't deliver all the things that the folk naively assume it can. Some metaethicists argue for an eliminativist approach to moral language - such as we've adopted with "sin" language - but they will still need to use some kind of language to oppose (forcibly) such horrors as torturing babies or conducting extermination campaigns against despised minorities.

Even I balk at concluding that all positive moral claims are just false (like positive claims about "sin"). Strictly speaking, if we buy fully into moral error theory, that radical proposition might be correct, but it would sure be a misleading thing to say outside a philosophy seminar room!

I think, though, that the picture is a bit more complicated than this, and we need to tease it out, and probably to include some focused empirical study of what people think they are doing when they use moral language of various kinds. If any of y'all out there are working on this and interested in collaborating, let me know what you have in mind.

New review of 50 Voices of Disbelief

A new (and highly favourable) review of 50 Voices of Disbelief: Why We Are Atheists has appeared at the psychology-related book review site Metapsychology .

The reviewer, Roger Chao, concludes:

Overall, this book is well suited for a mainstream audience, interested in questioning the power that religion holds over our lives. Being an item of non-fiction for a general audience, it has surprisingly good references at the end of some chapters (by academic writers that is), which will also serve to guide the reader if further information is wanted. Thus, I recommend this book to anyone (regardless of their views concerning religion) interested in understanding why different people hold certain views concerning religion.

Sam Harris on deriving "ought" from "is"

Allow me to point you to the newest attempt by Sam Harris to derive "ought" from "is".

I don't want to spend another week bogged down with this issue, so I'm not going to say much, especially since my original criticism was not so much that he purports to derive "ought" from "is" as that he fails to show that morality is objective in the sense discussed in contemporary metaethics. It might, however, be plausibly suggested that these are two sides of the same thing - indeed, I think they are.

However, the trick was always to derive "ought", in the sense of having reasons, from "is" statements that say nothing about what any being desires, fears, hopes for, wants, aims at, values, etc. Once you introduce something about those psychological phenomena, deriving "ought" from "is" is very easy. Even without those phenomena, you can say that someone "ought to" act in a way relative to an institutional standard, such as the current standards of law, etiquette, fashion, or a system of positive morality. No one denies that all these sorts of oughts and derivations of "ought" are possible.

So yes, there are various well-known ways to derive "ought" from "is". You can also do the job if you redefine "ought" so that it is no longer about having reasons for action, but about actions that conform to a stipulated definition of "good", e.g. we apply the word "good" to actions that produce pleasure or eudaimonia. But that's just cheating. Worse, your opponent can say, without making any mistakes: "I accept that Action X is 'good' by your definition, and that I therefore 'ought' to do it by your definitions of 'good' and 'ought'. But what's that to me?. You still haven't given me a reason, acceptable to me, for me to do it."

The trick is to avoid cheating with stipulative definitions and to avoid relying on human psychology or human institutions. You are supposed to derive that I really, really ought to do X without relying on any of those short-cuts. That is the sort of derivation that so many people want, as it's a derivation that will transcend subjectivity or semantics or culture. If you do the job, you've made normativity "objective".

Some people think that they can do the job by relying on the (alleged) commands of God, but that turns out to have fundamental problems. Kantians/moral rationalists (such as Nagel and Korsgaard) think they can rely on an exercise of pure reason without appealing to any contingent psychological phenomena, but I don't believe they've ever succeeded. In fact, I don't believe that the job can be done.

My day

I'm currently reading the judgment in the recently-decided gene patents case, but it's very lengthy. Much of it is important to the particular case - establishing the standing of the parties, giving us a potted genetics lesson to make clear what it's all about, discussing the circumstances in which summary judgment can be given on the papers without a full trial - but not critical to the key issue of how gene patents can be brought under ordinary patent law concepts (and hence whether some or all of these patents are invalid). The passages of Justice Sweet's opinion that deal with the obvious issues of public importance are relatively brief. Still, I'm working through the whole thing to get it all in context. I'll try to sort out in my mind what the most important paras boil down to, and I'll have more to say over the next few days.

This morning, I see that Sam Harris has made some kind of further reply to his critics - or at least to David Hume, or at least to a simplified version of Hume ("the David Hume of the popular imagination"). I need to read this, too, and will doubtless have something to say about it soon.

Meanwhile, after three months of excellent health since moving to Newcastle, I caught a sort of throat bug while in Melbourne in March. I did get a bit of gunge in my upper lungs, but the bug never went down deep into my lungs or became significantly debilitating (unlike the heavy-duty bronchitis that I suffered through much of the second half of last year). Maybe that's because I was so healthy when it hit me. Be that as it may, it was never more than a nuisance - but I just couldn't shake it off, even after getting some Rulide onto it. Well, for the first time since I got it, I had a symptom-free day yesterday ... and likewise so far today. It looks like I just may have shaken the damn thing at last. (Stay tuned. I was saying similar things a couple of weeks ago when I had a couple of good days, but then it clung on and clung on.)

Most importantly, I'll be picking up Jenny from the airport tonight. She's been in Perth for the past week, visiting her sister, Kara, and going to Swancon 2010. Judging from our phone calls and emails over the last few days, it sounds as if she's been having a great but tiring time.

Stop press: My sister rang not long ago. Sounds as if my brother-in-law who is down in Melbourne today will be on Jenny's connecting flight from Melbourne this evening.

More generally, all is well this autumnal Tuesday.

Full text of gene patents judgment

Here is the published opinion of Justice Sweet, thanks to JJE in the comments yesterday. It's 156 pages, so I'm not sure when I'll have time to read the whole thing. I'll try to get to it in the next few days. Meanwhile, it's a resource for those who are researching the issue of gene patents or just interested in it.