“Technology advances, but humans don’t. We’re smart monkeys, and what we want is always the same. Food, shelter, sex, and in all its forms, escape.” Takeshi Kovacs.

In February, Netflix unveiled a new dystopian, Blade Runner-esque, sci-fi show—Altered Carbon. Set in 2384, the show follows hardboil tough-guy Takeshi Kovacs fighting his way through a murder mystery in a world where human minds can be digitally downloaded and stored in cortical “stacks.” A stack, which can be inserted into the spinal column of any human body (called “sleeves”), allows people with resources to effectively live forever by transferring from one sleeve to another. Stacks can also be “spun up” in virtual realms, where the person’s consciousness can interact with others.

Seeing the obvious appeal of this type of technology, it has been featured in a number of sci-fi movies (The Thirteenth Floor; Chappie) and TV shows (Black Mirror; Stargate Univerise; Star Trek: The Next Generation). What has not been a part of those depictions, however, are the legal consequences to a person’s consciousness existing outside of the traditional temporal and physical confines of the human body. See Obscure Legal Hobbies by Legal Amateurs. Normally, questions challenging the legal assumptions of personhood, copying one’s own mind, and destroying the body but not the mind, remain unanswered in lieu of more pressing matters like, you know, a plot.

Altered Carbon, however, partially delivers where other sci-fi shows have failed. A law being proposed in the series, “Resolution 653,” would allow the government to “spin up” a murder victim’s stack to testify against their killer. The problem? Some people believe that spinning up a person’s stack is heresy. In the show, Neo-Catholics (colloquially, “Neo-Cs”) specifically have religious coding put into their stacks because they believe that God gave humans one life only. So if Neo-Cs receive a second life, it results in an automatic trip to hell (or at least purgatory). Understandably, Neo-Cs are opposed to Resolution 653,on religious ground, with its provision forcing spin ups on murder victims.

So how would the Constitution’s First Amendment protections support these Neo-Cs attack on Resolution 653? Although the Supreme Court has not directly ruled on the issue [of whether an impingement of fictional tech and religious rights are constitutional], it has provided some idea of how the constitutionality of the Resolution would be interpreted. Some state courts and legislatures, however, have addressed the issue in the context of autopsies, which seems to be a decent analogue. In short, my guess is that Resolution 653 would stand up to constitutional muster or could otherwise be protected by affirmative state legislative action.

SCOTUS and Religious Freedom

In Wisconsin v. Yoder, the Supreme Court held that a person’s right to freely exercise his or her religion can be intruded upon by the government only when “there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.” 406 U.S. 205, 214 (1972). Although the government must also show “that no alternative forms of regulation would combat such abuses without infringing First Amendment rights,” Sherbert v. Verner, 374 U.S. 398, 407 (1963), the Supreme Court has also “consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes),’” Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n. 3 (1982)).

“A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation . . . if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief.” Yoder, 406 U.S. at 215. Thus, “subjective evaluation and rejection of the contemporary secular values accepted by the majority,” or “philosophical and personal [choices] rather than religious,” do “not rise to the demands of the Religion Clauses.” Id. at 216.

Based on our current Supreme Court jurisprudence, the question of Resolution 653’s constitutionality would likely turn on whether (1) the Resolution is a law of general applicability untethered to religious conviction, see Smith, 494 U.S. at 882 (drug restrictions); (2) the religious coding is part of a sincere religious belief or an individual choice, see Yoder, 406 U.S. at 215 (Amish religious conviction); (3) “there is a state interest of sufficient magnitude to override the interest,” see id. at 214; and (4) there exist alternative forms of regulation to accomplish the same goal, see Sherbert, 374 U.S. at 407.

In our post-stack universe, I think that Resolution 653 would win out over religious liberty based on these factors. First, Resolution 653 arguably applies to all persons with stacks; however, it’s presented in Altered Carbon to override the religious coding used by religious groups. It is doubtful that the Resolution would be considered “neutral” or “generally applicable.” Second, Neo-Cs appear wholly uniform and sincere in their religious belief that spinning up a person’s stack condemns them to eternal unrest. These first two factors, therefore, seem to weigh heavily in the Neo-Cs’ favor.

The third and fourth requirements, however, seemingly weigh strongly in favor of the Resolution. The government’s interest in solving a person’s (or multiple people’s) murder is extremely high, especially considering the shenanigans afoot in Altered Carbon. See Rage in Heaven, 1 Altered Carbon (2018) (“spoiler alert“). And although governments have used alternative forms of solving murders for millennia, it’s hard to imagine that the police in 2384 are used to—or even capable of—solving murders without questioning the victim. Because the show did not illuminate alternatives that don’t require actually spinning up a stack to view its contents, my guess is that the Resolution’s proponents would argue none exists.

Moreover, the potential for abuse of religious coding to hide crimes seems like it would tip the scales. Like the victim at issue in Altered Carbon, how would the government determine that the coding is even valid as to the person unless they spun them up? In short, because solving a person’s murder is within the government’s duties and society’s best interest, I think the Neo-Cs would be out of luck in their fight.

States to the rescue!

States, however, may be able to expand their citizens’ rights to encompass this type of religious protection. Currently, at least seven states (New York, New Jersey, California, Ohio, Maryland, and Rhode Island) have passed legislation that gives people the right to prevent autopsy of their remains in most circumstances by signing a certificate declaring that autopsy is contrary to their “religious belief.” See Cal. Gov. Code § 27491.43; MD Health-Gen Code § 5-310; NY Public Health Law §4209-a. Challenges to state constitutions or statutes that are interpreted to protect such a right have also failed. See Walsh v. Caidin, 232 Cal. App. 3d 159, 164 (Ct. App. 1991). See also Ross v. Bd. of Regents of the Univ. of N.M., No. CIV 07-01037 RB/ACT, 2008 WL 11359115, at *5 (D.N.M. Sept. 22, 2008); Kickapoo Traditional Tribe of Tex. v. Chacon, 46 F. Supp. 2d 644, 654 (W.D. Tex. 1999). So although the Constitution may not afford such a right, states could codify a religious exception to having one’s stack spun up.

Conclusion

Assuming the Supreme Court’s constitutional interpretation of the First Amendment remains the same (which is an enormous assumption considering when Altered Carbon takes place), I think Resolution 653 would pass muster. Although Neo-Cs have a deep and real religious conviction, they would likely not be able to challenge being spun up in the afterlife without petitioning their state to do so. Now whether Congress could pass an anti-Resolution 653 statute that protects a right to be undisturbed presents a host of issues related to Congress’s enumerated and unenumerated powers that I won’t get into here. Let’s just be thankful that transferring and storing memories is not a problem we will ever have to deal with ever.

Random thoughts:

After seeing the government-issued sleeves given to murder victims, I feel like I would be really ticked off if I had to be in some random, much older person’s body … er, sleeve.

Because a “true death” can only happen when a stack is destroyed, I assume SCOTUS would have to recognize a sleeve as “property” for constitutional purposes. Henrietta Lacks’ contribution to society could finally be recognized and compensated.

If stacks can be spun up in a virtual world untethered to their sleeve counterparts, why would we even bother getting out of bed? I would definitely not waste time at the DMV.

Like The Expanse (which I write about here), I’m a big fan of Altered Carbon if only for its use of Blade Runner visuals and tech.

All hail Joel Kinnaman’s updated version of Detective Rick Deckard.

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