Congressional Hearings
Beyond Tolerance: Faith in the Public Square
Congressional Hearings
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| AUTHORITYID | CHAMBER | TYPE | COMMITTEENAME |
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| jcse00 | J | O | Commission on Security and Cooperation in Europe |
[Joint House and Senate Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
115th Congress } Printed for the use of the
2nd Session } Commission on Security and Cooperation in Europe
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Beyond Tolerance: Faith in
the Public Square
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
October 29, 2018
Briefing of the
Commission on Security and Cooperation in Europe
------------------------------------------------------------------------
Washington: 2019
Commission on Security and Cooperation in Europe
234 Ford House Office Building
Washington, DC 20515
202-225-1901
csce@mail.house.gov
http://www.csce.gov
@HelsinkiComm
Legislative Branch Commissioners
HOUSE SENATE
CHRISTOPHER H. SMITH, New Jersey ROGER WICKER, Mississippi,
Co-Chairman Chairman
ALCEE L. HASTINGS, Florida BENJAMIN L. CARDIN. Maryland
ROBERT B. ADERHOLT, Alabama JOHN BOOZMAN, Arkansas
MICHAEL C. BURGESS, Texas CORY GARDNER, Colorado
STEVE COHEN, Tennessee MARCO RUBIO, Florida
RICHARD HUDSON, North Carolina JEANNE SHAHEEN, New Hampshire
RANDY HULTGREN, Illinois THOM TILLIS, North Carolina
SHEILA JACKSON LEE, Texas TOM UDALL, New Mexico
GWEN MOORE, Wisconsin SHELDON WHITEHOUSE, Rhode Island
Executive Branch Commissioners
DEPARTMENT OF STATE
DEPARTMENT OF DEFENSE
DEPARTMENT OF COMMERCE
[II]
ABOUT THE ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE
The Helsinki process, formally titled the Conference on Security
and Cooperation in Europe, traces its origin to the signing of the
Helsinki Final Act in Finland on August 1, 1975, by the leaders of 33
European countries, the United States and Canada. As of January 1,
1995, the Helsinki process was renamed the Organization for Security
and Cooperation in Europe (OSCE. The membership of the OSCE has
expanded to 56 participating States, reflecting the breakup of the
Soviet Union, Czechoslovakia, and Yugoslavia.
The OSCE Secretariat is in Vienna, Austria, where weekly meetings
of the participating States' permanent representatives are held. In
addition, specialized seminars and meetings are convened in various
locations. Periodic consultations are held among Senior Officials,
Ministers and Heads of State or Government.
Although the OSCE continues to engage in standard setting in the
fields of military security, economic and environmental cooperation,
and human rights and humanitarian concerns, the Organization is
primarily focused on initiatives designed to prevent, manage and
resolve conflict within and among the participating States. The
Organization deploys numerous missions and field activities located in
Southeastern and Eastern Europe, the Caucasus, and Central Asia. The
website of the OSCE is: .
ABOUT THE COMMISSION ON SECURITY AND COOPERATION IN EUROPE
The Commission on Security and Cooperation in Europe, also known as
the Helsinki Commission, is a U.S. Government agency created in 1976 to
monitor and encourage compliance by the participating States with their
OSCE commitments, with a particular emphasis on human rights.
The Commission consists of nine members from the United States
Senate, nine members from the House of Representatives, and one member
each from the Departments of State, Defense and Commerce. The positions
of Chair and Co-Chair rotate between the Senate and House every two
years, when a new Congress convenes. A professional staff assists the
Commissioners in their work.
In fulfilling its mandate, the Commission gathers and disseminates
relevant information to the U.S. Congress and the public by convening
hearings, issuing reports that reflect the views of Members of the
Commission and/or its staff, and providing details about the activities
of the Helsinki process and developments in OSCE participating States.
The Commission also contributes to the formulation and execution of
U.S. policy regarding the OSCE, including through Member and staff
participation on U.S. Delegations to OSCE meetings. Members of the
Commission have regular contact with parliamentarians, government
officials, representatives of non-governmental organizations, and
private individuals from participating States. The website of the
Commission is: .
[III]
Beyond Tolerance: Faith in
the Public Square
----------
October 29, 2018
Page
PARTICIPANTS
Nathaniel Hurd, Senior Policy Advisor, Commission for Security and
Cooperation in Europe................................................1
Eric Treene, Special Counsel for Religious Discrimination, Civil
Rights Division, U.S. Department of Justice..........................3
Rev. Dr. Andrew Bennett, Director, Cardus Religious Freedom
Institute, and Canada's Ambassador for Religious Freedom (2013-2016)
(via videoconference)................................................5
Dr. Sophie van Bijsterveld, Senator, Dutch Parliament, and
Professor of Religion, Law, and Society, Radboud University (via
videoconference).....................................................6
Beyond Tolerance: Faith in
the Public Square
----------
October 29, 2018
The briefing was held at 2:30 p.m. in Room 188, Russell Senate
Office Building, Washington, DC, Nathaniel Hurd, Senior Policy Advisor,
Commission for Security and Cooperation in Europe, presiding.
Panelists present: Nathaniel Hurd, Senior Policy Advisor,
Commission for Security and Cooperation in Europe; Eric Treene, Special
Counsel for Religious Discrimination, Civil Rights Division, U.S.
Department of Justice; Rev. Dr. Andrew Bennett, Director, Cardus
Religious Freedom Institute, and Canada's Ambassador for Religious
Freedom (2013-2016) (via videoconference); and Dr. Sophie van
Bijsterveld, Senator, Dutch Parliament, and Professor of Religion, Law,
and Society, Radboud University (via videoconference).
Mr. Hurd. Good afternoon. On behalf of the chairman of the Helsinki
Commission, Senator Roger Wicker, and our co-chairman, Congressman
Chris Smith, welcome to this briefing on ``Beyond Tolerance: Faith in
the Public Square.'' I'll be your moderator for today. My name is
Nathaniel Hurd, and I'm a senior policy advisor at the Helsinki
Commission.
This is a briefing on faith in the public square as a good in and
of itself, as a public good, and as the fruit of religious freedom.
Jewish communities have been part of the square of what is now the
United States at least since the 1650s. This past Saturday, a man
targeted and killed 11 of our Jewish brothers and sisters in the Tree
of Life Synagogue in Pittsburgh, Pennsylvania. Last night, on National
Public Radio, the executive editor of the Pittsburgh Post-Gazette,
David Shribman, remarked, ``I sometimes say that this is the only
community I've ever lived in in which the people who aren't Jews
actually pronounce the Yiddish words correctly.'' Such fraternity
reflects one of the most important exhortations in American history.
On August 18th, 1790, George Washington visited the Touro Synagogue
of Newport, Rhode Island. Later that day, he wrote a letter to the
congregants entitled, ``To the Hebrew congregation in Newport, Rhode
Island.'' He ended his letter with these words: ``May the children of
the Stock of Abraham, who dwell in this land, continue to merit and
enjoy the good will of the other inhabitants; while everyone shall sit
in safety under his own vine and fig tree, and there shall be none to
make him afraid. May the father of all mercies scatter light and not
darkness in our paths, and make us all in our several vocations useful
here, and in his own due time and way everlastingly happy.'' Words that
I hope will guide us as a country, including the local community of
Pittsburgh, in the coming weeks and months.
I will now introduce our panelists in the order in which they will
speak. Eric Treene, to my left, is special counsel for religious
discrimination at the U.S. Department of Justice's Civil Rights
Division. He oversees the Civil Rights Division's religious
discrimination enforcement, outreach, and policy efforts. Mr. Treene
also coordinates outreach to religious communities and the department's
outreach efforts to the Muslim, Arab, Sikh, and South Asian communities
regarding post-9/11 discrimination and hate crimes. Before joining the
Department of Justice in 2002, he was director of litigation at the
Becket Fund for Religious Liberty, where he represented Christians,
Muslims, Jews, Sikhs, Buddhists, and Native Americans in a wide range
of discrimination cases. Mr. Treene received his Bachelor of Arts in
political science from Amherst College and his law degree from Harvard
Law School. He was a law clerk to Judge John Walker, Jr. of the United
States Court of Appeals for the Second Circuit. Mr. Treene is the
author of a number of articles and a contributor to two books on
constitutional law and civil rights.
Welcome.
Mr. Treene. Thank you.
Mr. Hurd. The Reverend Dr. Andrew Bennett is program director for
Cardus Law. He is an ordained deacon in the Ukrainian Greek Catholic
Church in the Eparchy, or diocese, of Toronto and eastern Canada.
Father Deacon Andrew served as Canada's first Ambassador for Religious
Freedom and head of the Office of Religious Freedom from 2013-2016. He
simultaneously served as Canada's head of delegation to the
International Holocaust Remembrance Alliance, a 31-country body which
leads international efforts in Holocaust education, research, and
remembrance. Father Deacon Andrew holds degrees in history from McGill
and Dalhousie Universities. He received his Ph.D. in politics from the
University of Edinburgh. And on a personal note, he and I have actually
known each other since 1997, when he was a precocious Ph.D. student and
I was a study-abroad student and actually had hair. [Laughter.] So this
is in many respects a continuation of the conversation that we were
having even back then.
Welcome, Father Deacon.
Dr. Sophie van Bijsterveld joins us from the Netherlands to reflect
on the subject in a Western European context. She graduated in law from
the University of Utrecht and received a doctorate in law from Tilburg
University. Since September 2014, she has been professor of religion,
law, and society at Radboud University. Dr. van Bijsterveld has
lectured and published extensively in the fields of international human
rights protection, religious liberty, constitutional law, and hybrid
governance. Her books include ``The Empty Throne: Democracy and the
Rule of Law in Transition.'' Her latest book is ``State and Religion:
Reassessing a Mutual Relationship.'' Since 2007, she has been a senator
in the Dutch upper house of Parliament for the Christian Democratic
Party. From 2008 to 2015, Dr. von Bijsterveld was a member of the board
of the scientific institute for the Christian Democratic Party. She was
also a founding editor of the Dutch Journal of Religion, Law and
Policy. I should note that there's a 6-hour time difference between us
and the Netherlands, so she's joining us at 8:30 at night. We're
especially grateful that she's with us.
Senior Counsel Treene.
Mr. Treene. Well, thank you very much. Like Americans everywhere
and people around the world, I am grieving today the horrific killing
at the Tree of Life Synagogue. And my thoughts and prayers are with the
victims and their families. And 11 killed, six injured. And the
Department of Justice--the attorney general spoke about, quite
forcefully, hatred and violence on the basis of religion could have no
place in our society. And he said every American has the right to
attend their house of worship in safety. We are saddened by this. We
are also resolute to pursue this hate crime. And charges have been
brought. We've been very active in religious hate crimes against all
people.
Two weeks ago we had a man sentenced to 24 \1/2\ years in prison
for--a Texas man--for arson in a mosque in Victoria, Texas. We've been
very aggressive. And the attorney general has been quite forthright
about the importance of prosecuting hate crimes as part of religious
liberty.
Normally we think of religious liberty as the right of people as
against the state. You're free from infringement by the state. But the
attorney general, speaking to the Union of Orthodox Jewish
Congregations of America back in June said religious freedom means not
only freedom from government intrusion, but also freedom from violence.
The first civil right is the right to be safe.
The idea that we have religious freedom is one of our greatest
treasures in America. We speak of it as our first freedom. It's the
first right listed in the Bill of Rights. It's foundational to the
right of conscience and our other freedoms. But I think the attorney
general is acknowledging that this right will mean very little if we
don't have the right to be safe in our places of worship, to worship as
we see fit, to walk down the street without fear of attack because of
what we believe and how we express that. So we stand with the people of
the Tree of Life Synagogue and all Americans.
Religious freedom is the first freedom, as I mentioned. Nathaniel
mentioned the letter to the Touro Synagogue, which was a community of
Jews developed there in the late 1600s to bring their faith, to do what
many Christian sects were doing, to see in a new land a place where
they could worship freely. President Washington in his letter--I want
to use it as a framework of what I want to talk about--he said, ``It is
now no more that toleration is spoken of, as if it were the indulgence
of one class of people, that another enjoyed the exercise of their
inherent natural rights. For happily the Government of the United
States, which gives to bigotry no sanction, to persecution no
assistance requires only that they who live under its protection should
demean themselves as good citizens . . . ''
This letter was pivotal for two reasons. One, it was the nature of
the right that it was inalienable, it was an inherent right. It wasn't
a gift from the government to the people. It was something that the
Jews of Newport, of the Baptists of Virginia, that they had as an
inherent right. The second part is that it was a principle applied to
everybody--to not only the Christian sects that were multiplying in the
United States at the time, but people of all faiths. President Trump
has followed other recent presidents in proclaiming January 16th as
Religious Freedom Day. It's a day we celebrate at the national level
and a kind of obscure event. It's the passage of the Virginia Statute
of Religious Freedom.
Why is a state statute so important? One, it was penned by Thomas
Jefferson, who wrote the Declaration of Independence. But it also is
important because it lays out the framework in three ways for religious
liberty in America, that President Washington also touched on in his
letter to the Hebrew congregation in Newport. First, the preamble. He
says, ``God has created the mind free.'' And therefore, any
interference with freedom, and with conscience, is not only something
that is, as he said, meanness and hypocrisy for the government to try
to punish such things, but it is an affront to the natural order.
Second, Jefferson said in the Virginia statute that ``no man shall
be compelled to frequent or support any religious worship, place, or
ministry,'' nor ``suffer on account of his religious opinions or
belief.'' So it has a duality to it. You can't be forced against your
conscience to support a faith. That's what we are familiar with as the
establishment clause of the Constitution. But also, you can't suffer on
account of your opinion and belief under your conscience. And that's
free exercise.
And Jefferson had a third section saying that we know we're just
passing a statute, but if some future legislature were to take it away,
they could. They have the right. But they would be wrong in doing so
because this is an inherent right that no one should be taking away.
And looking back on this, someone said, oh, wasn't this wonderful?
Thomas Jefferson, you created freedom for the Christians of Virginia.
And he said, no, no, this wasn't about Christians. And he specifically
mentions Hindus, Muslims, and Jews as all enjoying the protection. So
there are two key takeaways. One is religious liberty is a fundamental
right, not a gift from the state. Second, the protection of conscience
is at the very core of this right. And, third, that it applies to
everybody.
Now, when you look out in the world, there are three different
approaches to religious--this is very, very rough--but the way I see
it, it breaks into sort of three categories. There's theocracy. It can
be sort of rigid where, you know, religion controls everything. It can
be the milder theocracy of Britain in the 1700s, where you could be
punished for working on the Sabbath and you had to worship at certain
times and so forth, sort of a milder theocracy. But that's a theocratic
view. There's sort of a secularism that governments should ensure a
secular public order. That's what you see in France, where laicite is a
high value.
And then there's a third vision, which I think Jefferson was laying
out, which is a pluralistic vision, where religion is something the
government will stay out. It will not become overbearing in the
religious sphere and endorse one religion at the expense of others. But
at the same time, the government will create room for religion, will
make space for religion to flourish. So in schools, you don't have the
teacher leading the class in prayer, but on the other hand you protect
students' rights to gather. And we brought a case in the Department of
Justice where kids were not allowed to gather for prayers at lunchtime
in a small group.
So this is sort of the model. We're trying to keep introductions
brief, but I'll get into as we go along with your questions how we're
implementing this through the civil rights laws that we enforce--the
hate crime laws, but also the law to allow places of worship to build
students' rights of religious expression, people's ability in the
workplace to have their religion accommodated so they don't have to
choose between their livelihood and their faith. With that, I look
forward to what our other panelists have to say.
Mr. Hurd. Thank you.
Father Deacon Andrew.
Rev. Bennett. Thank you very much. I'd like to focus my talk on the
related rights of freedom of religion and conscience and view them from
my perspective as Canada's first Ambassador for Religious Freedom
between 2013 and 2016, and now as Director of Cardus Religious Freedom
Institute, which seeks to educate and advocate for religious freedom
and conscience rights. And I also understand these rights as a
Catholic, and so view it through the lens of the Catholic tradition,
rooted in incarnational anthropology.
We find in section two of the Canadian Charter of Rights and
Freedoms embedded in the Constitutional Act of 1982 enumeration of
fundamental freedoms, the equivalent of the inalienable rights of the
American Bill of Rights. It's neither whimsy nor accidental that the
first fundamental freedom is freedom of conscience and religion. We
bind them together in the Canadian Charter. If we're to share a common
life in Canada, or anywhere else for that matter, robust freedom of
religion and conscience must be affirmed and upheld. It is the freedom
that enables us to live fully as we are, and as we are called to do.
Freedom of religion bears witness to the truth that human beings
desire to make sense of our world and to encounter the divine. Unlike
the freedoms that relate to public action--such as freedom of
expression, freedom of association, freedom of assembly--to which it is
bound, freedom of conscience and religion addresses what Professor
Rabbi David Novak of the University of Toronto has referred to as the
``metaphysical need of the human person.'' In this sense, religious
freedom can perhaps be more fully defined beyond international human
rights covenants, beyond simply the Bill of Rights or the Canadian
Charter of Rights as having the initial freedom to contemplate the
metaphysical and--[audio break]--just who am I? Who am I in
relationship to you? Who am I in relationship to the world in which I
live? And who am I in relationship to God to a particular philosophy to
which I elect to subscribe and follow?
Thought necessarily precedes action. In a religious way, freedom of
conscience does not necessarily relate to theological or creedal
statements, but rather to the inherent human freedom to believe and
assert certain truths. For example, that medical-assisted suicide is
wrong, a belief that is not necessarily dependent on confessing a
particular religious faith. It can come from a humanistic view. The
frequent and mistaken post-modern assumption gaining currency in
certain quarters, including in Canada, is that freedom of religion or
conscience can be relegated in favor of upholding a broader freedom of
expression of association. To diminish the defense of religious freedom
conscience rights this way, I would argue, is a symptom of an amnesia--
an amnesia that is increasingly forgetful of who we are as human
beings, forgetful of our deepest longings, and of our true dignity.
The ability to freely, publicly and privately act upon this
metaphysical need that I talked about is foundational to our democracy
and foundational to our common life together. Without the guarantee of
this freedom, we are no less free in our interior life, but when
freedom of conscience and religion is threatened or ignored, our public
common living out of our lives of faith can be undermined, sometimes
gravely. So in a truly pluralist democracy, acceptance of difference
must include the right to hold different theological and different
ethical and moral positions, even when they go against the prevailing
spirit of our age. So long as these views are held and advanced
peacefully and do not advocate physical violence that would violate
human dignity, they must be allowed to inhabit the public space.
We must reject what I would label an ``illiberal totalitarianism''
in the public square that seeks to establish socially correct and
acceptable beliefs, treating any peacefully contrary view as deviant
and something to be silenced. There must be no totalitarianism of
accepted belief or accepted opinion in a pluralistic democracy such as
Canada or the United States. A true pluralism must embrace and enable
difference, but not simply a subset of differences that may be
permitted at a moment by a given set of beliefs at a given moment in
our history. This, I would argue, is illiberal pluralism that embraces
a cultish secularism where the state imposes values and dictates what
religious beliefs are publicly permissible. The freedom to practice
one's deeply held religious faith and hold positions of conscience in
the public square is a freedom that implicitly advances and supports
true pluralism.
To champion religious freedom, and also conscience rights, is to
also implicitly accept that there are those in our common life who will
hold beliefs, theological and philosophical and moral, that many of us
will vehemently reject. And that's okay. If people in our society,
whether they be Muslims, Christians, Sikhs, or Jews, or people of no
religious faith, are constrained in their faith through practice and
how that faith informs their conscience, and profoundly shapes their
understanding of the human person, they will become increasingly
marginalized and our society increasingly atomized.
In building our common life and maintaining the public square, we
must champion human flourishing as the common good so that our fellow
human beings may flourish and be able to live their lives of faith
fully--both privately and publicly. Increasingly in Canada, there are
growing and persistent challenges to the inherent freedom of conscience
and religion. These challenges come from our secular institutions--
legislative, administrative, and judicial--from the overstepping and
infringing on Canadians' freedom in this regard. Again, a freedom that,
as our first presenter noted, is not the gift of the state, but rather
a freedom that we bear in virtue of being human beings.
So in conclusion, in recent years there have been encroachments by
a self-proclaimed ``neutral secular order'' to advance a rival secular
democracy, intolerant of genuine diversity. There have also been
statutory and regulatory actions taken to constrain freedom of religion
and conscience at both the federal and municipal levels. Some of the
most notable cases include the 2018 Canada Summer Jobs Attestation, the
2018 Supreme Court of Canada decisions in the Trinity Western Law
School case, and the Wall case, the bubble zone legislation in Ontario,
and the violation of conscience rights by the College of Physicians and
Surgeons of Ontario. And I am happy to speak to some of these cases in
greater detail in response to questions.
Thank you.
Mr. Hurd. Thank you, Father Deacon.
Dr. van Bijsterveld.
Dr. van Bijsterveld. Thank you very much. It is a great honor to
participate in this meeting. And I thank the Helsinki Commission very
much for inviting me.
My presentation focuses on Western European developments, and
certainly religious freedom and the place of religion in the public
square. And I will approach this topic first by outlining some
characteristics of the debates and, second, I will sketch some public
responses toward the current challenges. I will start with some
preliminary remarks and I will close with a few personal observations.
Three preliminary remarks. The first: 57 countries, including the
United States, Canada, and all the countries of Europe, are
participating states of the Organization for Security and Cooperation
in Europe (OSCE). The relations between state, society, and religion
differ from country to country. This is also true for the part of this
region that is formed by Western Europe. Over the centuries, different
political realities, differences in religious makeup of the society,
differences in interrelation between secular and ecclesiastical
authorities and historical facts all have had an impact on what we now
call the place of religion in the public square.
My second remark--in the OSCE context, the notions of ``respect''
and ``tolerance'' are often featured. However positive these notions
appear, their meaning is not always clear or even defined. Where
``respect'' is concerned, the distinction must be made, in my view,
between persons on the one hand and views and actions on the other. The
person deserves respect as a person. But views and actions, not
necessarily so. And as of ``tolerance,'' I prefer to speak in terms of
liberty and restrictions to liberty when possible. Either persons enjoy
liberty or they do not, in which case there must be valid reasons to
legitimize restrictions. Alternatively, one could speak in terms of
equal treatment or non-discrimination.
My third remark--the word ``secularism'' often features in debates
on religion in the public square. And this word can have different
meanings as various authors also realize. In the words of the former
Archbishop of Canterbury, Rowan Williams, it can refer to
``programmatic secularism'' or ``procedural secularism.'' In this
realm, programmatic secularism stands for fending off manifestations of
religion in the public square and procedural secularism is
fundamentally open to manifestations of religion--the state, itself,
being secular. In a given context, it's important the use of secularism
is clear.
Now, for my preliminary remarks: I now come to the general
characteristics of the debates. Three general characteristics mark the
current debates. The first is the nature of the issues. In the roughly
200 years of modern debates on religion in the public square and
freedom of religion in Western European countries, various periods can
be discerned. In previous periods, the focus was of institutional
competences between church and state, or accommodation of religious
social activities in the framework of the emerging welfare state. And
current issues of contention mostly concern values--which values are
being expressed or promoted through religion, and how much liberty do
they deserve?
Second, there is a transnational dimension of many issues
concerning religion. During the 20th century, religious issues were by
and large purely domestic issues. Currently, these issues are often
connected to controversial societal contexts as immigration,
integration, foreign influencing, and radicalization. And as a result,
the debates are often conducted in terms of limitations of liberty
rather than liberty.
Third, over the last decades, religion has increasingly become
experienced as a purely private matter, and religious liberty as an
individual personal liberty. The current issues of controversy,
however, have once again fostered an awareness of the societal and
public dimensions of religion. This rediscovery also has positive
sides. In many Western European countries, functional welfare states
have felt overburdened and religion is retreating somewhat from the
social domain, notably financially. And this goes hand-in-hand with the
renewed positive valuation of the social functions of religious
organizations. New forms of contact, and cooperation, and coordination
between such organizations and, notably, local authorities take place.
I now come to my next point--public responses toward current
challenges. And, again, I make three observations.
First, Americans scholars or academics observe a trend that legal
issues concerning religion are seen through the lens of equal treatment
rather than religious liberty. Insofar as individuals are concerned,
this resonates with experiences in Western Europe for the same reasons
as have been mentioned. And for institutional liberty basis, it is less
self-evident.
Second, legal and political responses to religious diversification
may rely on basic instincts of traditional church-state systems. Thus,
France continues to bar visible signs of religion in the public sphere,
whereas, for example, in Italy Catholicism may function as a symbolic
focal point, the crucifix in the public classroom being an example. And
other countries experience more of a dilemma.
Third, the European Court of Human Rights tends to leave national
states some room for maneuver in finding a right balance with regard to
these issues. Although the Court is sometimes criticized for this, one
must realize--especially in the United States--that this is a
supranational court that deals with countries with a variety of
different starting points where the place of religion in the public
domain is concerned. And there are many issues that are controversial
in the various states as well.
Finally, a few personal observations. First, it is unavoidable that
religious issues tend to be assessed through the lens of equality
rather than liberty. However, the one should not replace the other.
Furthermore, equal treatment applies in equal circumstances. And equal
treatment therefore is not necessarily identical treatment. Second,
restrictions to religious liberty may be necessary. However, applying
general solutions to a specific problem must be avoided. Legislation,
therefore, is not always the most fruitful response to an issue.
And third, and last, the development of a relaxed attitude of
public authorities toward religion begins with a basic familiarity with
concrete religious traditions and denominations. For both public
authorities and religious communities, it is important to get to know
each other, if they do not already. Thank you for your attention.
Mr. Hurd. Thank you. We'll now have a period of sort of a moderated
Q&A. So I'll be asking the panelists some questions. Once that's done,
we'll open it up to questions from you who are here in the room, as
well as those of you that are watching online on Facebook. For those of
you in the room, if you could use the standing microphone and identify
yourself when it's time for that Q&A period.
Just a note about the context of my questions: A lot of the debates
and discussions about this topic often are mostly restricted to
questions about law and public policy. And unfortunately, there aren't
enough discussions about people's first principles, about their basic
assumptions, about distinctions between different kind of categories
and words, et cetera. So a lot of my questions are intended to tease
that out of our panelists.
My first line of questions is going to focus on philosophy. I think
philosophy can be one of those subjects that's easy to have a go at.
Seems to be somewhat impractical. But the fact is that all of us have
existential questions, metaphysical questions that tug on the human
heart. And Father Deacon Andrew highlighted some of them.
Philosophy actually helps us to seek and receive answers to some of
those questions. I think it's also worth noting that how we view the
world, our ideas-in this modern, contemporary setting--are often not
entirely new. They have roots in earlier times and in earlier ages. And
philosophy can help us trace back those roots.
A lot of the discussions and debates about faith in the public
square intersect with broader debates about the very nature of truth.
Does truth exist? Is it objective? Does it exist outside of us? Is it
something that we can know and access, or is it something that we at
the individual level just sort of generate and create, or is it
something that we can actually receive? What we're discussing now
reflects in many respects philosophical shifts. In particular, from the
Medieval period to the period of the Renaissance, and then forthgoing
the period of the Enlightenment and its sort of philosophical
successors. In particular, I'm thinking of Descartes.
And so my first set of questions are in particular for Father
Deacon Andrew and Dr. van Bijsterveld. What is the philosophical
lineage about some of the contemporary skepticism that we see about
truth as something that's objective, as existing outside of us, as
something that is accessible and knowable, evidenced in ordinary human
experience, and received rather than self-created?
And then for Mr. Treene, if you could say a word or two about the
philosophical lineage of faith in the public square and the religious
freedom that enables it, that we can see in the founding documents in
the United States? And then I'll ask you to go into a more provocative
area, which is as you look at faith in the public square now, basic
discussions about religious freedom, and reflect on our founding
documents, do you think that there were any philosophical presumptions
that the founders made, perhaps unintentionally, that have sort of led
to some of the challenges that we see today?
We'll start with Father Deacon Andrew and Dr. van Bijsterveld.
Rev. Bennett. Well, thank you very much. That's certainly a very
big question about, theological--[inaudible]--traditional
understandings of truth as being objective and universal. Our
understanding of fundamental freedoms--such as freedom of religion,
freedom of conscience--certainly in Western democracies derives
directly from the Judeo-Christian understanding of the human being,
human person, and the human person's relationship to an existential
reality, metaphysical reality, their relationship to God.
So this understanding of truth is definitely something that exists
in and of itself. It is something that exists in and of itself, and it
is beyond us in a certain sense, but also accessible by us because we
believe that certainly as Christians, and as Jews, and some other
faiths as well, that truth is revealed to us. So we have a particular
understanding of revelation and that core understanding of revealed
truth as objective and universal. Certainly from the Christian
perspective, we understand that truth is not a particular philosophy or
a particular abstraction but rather it's a person. It's the person of
Jesus Christ. And so we have that understanding as Christians that
truth is a person with whom you have a relationship. And you have a
relationship with, and that grows as you enter more fully into that
truth.
So that understanding of truth certainly is implicit within our
understanding of fundamental freedoms, because there's this
understanding that we have these freedoms by virtue of being human
beings. And because we are human beings, created in the image and
likeness of God, there is a certain dignity that we have. Now, it's
important, I think, in these days to sort of unpack what we mean by
human dignity, because human dignity now often has a very different
meaning or is construed in different ways--as are other terms such as
compassion and even truth itself. But from my perspective, that would
be how I would respond to your question, Nathaniel.
Mr. Hurd. And Dr. van Bijsterveld?
Dr. van Bijsterveld. Yes. Thank you. Well, I find your basic first
question quite hard to answer. What I could say is this: At a time when
Western European countries' freedom of religion was first incorporated
in the constitutions, we see that in a context of societies that are
thoroughly Christian, whatever sort of divisions or predominance of a
particular religion there may be. What we see, of course, now is that
freedom of religion functions in a much more secularized context, and a
context where diversity has gained a different meaning. And it's clear
that those differences over time may also influence the interpretation
of religious freedom, or at least can understand that there will be
debate about what religious freedom actually means.
Mr. Hurd. Thank you.
Mr. Treene. Yes. And to respond to something that Dr. van
Bijsterveld said in her opening remarks, where she mentioned in U.S.
law things have moved from religious liberty more toward equal
treatment, I would say in some respects that I would agree with that.
But both of these have roots with the founders. The founders, as I
mentioned, looked at equal treatment of all persons regardless of
religion, as well as this idea of conscience being precedent to the
demands of the state. And if you look at the law, there have been a
number of decisions that have moved the ball in religious liberty by
using equal treatment paradigms. Most recently Trinity Lutheran, saying
if you have a program giving playground equipment--here, it was
actually the rubber surface so that the kids don't get injured on the
playground--you had to treat churches equally. Same thing with the
school choice decisions. If you give out a scholarship to parents you
can't discriminate. Parents are able to use those at the school of
their choice. Same thing in free speech cases. If there's a forum for
speech, you can't exclude religious speech.
Now, the law has moved in that direction, but all of those have
been five-four decisions, six-three decisions on our Supreme Court. I
think it's worth nothing that if you look at the unanimous decisions in
the religious liberty space, they've all been pure religious liberty
cases. Most recently Hosanna-Tabor case, where a church wanted to hire
ministers, even where that conflicted with non-discrimination laws, the
state had to keep its hands off, that there was something precious and
different about religious liberty, that a church must be allowed to
decide who its leaders will be. That was a unanimous decision.
Then we have decisions interpreting some statutes, like the
Religious Freedom and Restoration Act. Unanimously, the Supreme Court
held you can't prosecute somebody who has a sincere belief in using a
hallucinogenic tea, in the Gonzales case. And then you have the
prisoner case involving a Muslim prisoner under a statute here we have
that protects prisoner and religious rights, that a prisoner had a
right to wear a beard, even though it wasn't an equality argument. It
was a pure conscience versus the state argument. So I just think it's
interesting that those three pure religious liberty cases were
unanimous Supreme Court decisions, and the equality cases--while there
are more of them and they have been moving in that equality direction,
were more split in the court.
Mr. Hurd. There have been several references today to the subject
of secularism. Father Deacon Andrew, you referred to a ``self-
proclaimed neutral secular order'' that has limited conscience rights
in the medical and legal profession in order to advance a prevailing
secular orthodoxy, intolerant in genuine diversity. So just two quick
questions for you, and then after you've answered----
Ms. Hope. Nathaniel, we've lost them.
Mr. Hurd. Ah.
Ms. Hope. They'll be back, but you may want to----
Mr. Hurd. Let me move then onto the intersection between faith in
the public square and social change movements--something of great
significance here in the United States. Just an observation first. Many
champions of the abolition of slavery, suffrage for women, and civil
rights for African Americans were explicitly animated by their
religious faith. It is rare to encounter contemporary criticisms of
faith in the public square in these specific contexts. General organs
as well as legal, policy, and cultural challenges against faith in the
public square most often seem to arise when people of faith are
advocating for something specific with which the critic disagrees. I'm
wondering if you might be able to say a few words maybe elaborating a
bit on the intersection between social change movements, the role that
faith played in those, and then these discussions and debates that we
have more broadly about faith in the public square, and whether or not
you would concur that there may be a bit of inconsistency about the
criticism.
Mr. Treene. Well, I would say that coming from the civil rights
division, where we just celebrated our anniversary--we were founded in
1958, so we had our 60th anniversary. We focused on our history, and we
looked at Martin Luther King, who, A, was animated by faith. And I
think that's what you're getting at. But also, he was imprisoned. His
supporters had charges filed against them for disturbing the peace. He
had a vision that conflicted with some of the mores and standards of
the time and it was jarring. I'm always struck to look back, when we
ask this question of just how critical his faith was to his movement,
and also how much resistance he got. In retrospect Bill Nye said, Oh,
yes, Martin Luther King, that's the paradigm of faith in the public
square. But it was tumultuous at the time. And you can't get around
that.
Mr. Hurd. Looking at some of the debates and discussions today
about a whole range of questions, ranging from immigration, to
abortion, and everything in between, again this impression that some of
us have that when people of faith bring their faith to the public
square in a way that, when it comes to questions of law or policy, you
happen to agree with, that often seems to be welcome, whereas where
there's a point of disagreement, there's a bit of a pushback. Would you
say that's a fair characterization?
Mr. Treene. Yes. And I think the Martin Luther King example
exemplifies that. I'd be curious to see what Dr. van Bijsterveld sees
as the Dutch--is she still on, or is just us?
Mr. Hurd. It's just us.
Mr. Treene. It's just us. [Laughter.]
Ms. Hope. We're trying to get them back.
Mr. Hurd. About just over a year ago there was an article published
in the online publication Public Discourse. And it was authored by a
professor, Dr. Margaret McCarthy. She teaches at the John Paul II
Institute for Studies on Marriage and Family here in Washington at The
Catholic University of America. To sort of summarize her argument, she
was certainly sympathetic to why advocates for faith in the public
square, in particular advocates for the religious freedom that enables
faith in the public square, were primarily emphasizing and appealing to
their sincerely held beliefs. She made explicit reference to our
founding documents, to law, et cetera, et cetera.
And you know, a lot of case law that relates to this very much
centers on that particular phrase. But her caution was that to people
that may hold a different point of view about faith more generally, or
at least faith in the public square, this may be something that's hard
for them to understand.
She said, ``We ought to be aware of the cost we incur by appealing
on such grounds. For reasons pertaining to the kind of religion that
has dominated the American landscape and the narrow and reductive
parameters of public reason in the liberal order, whatever we seek to
defend in virtue of religious freedom [or the rights of conscience]
will be invariably consigned to the realm of the private and
`personal,' which is to say, the utterly irrational. To see this, one
need only consider what it would mean for science were scientists to
insist on the `freedom of their science' or to appeal to their
`sincerely held beliefs about gravity.' Without diminishing the
importance of the fight to keep culture-forming institutions open, it
would be a Pyrrhic victory if success in the legal arena came at the
cost of vindicating the view that a person's religion is essentially
`nobody else's business.' '' And then she goes on to conclude, ``
`Sincerely held beliefs' currently in question are not sincerely held
beliefs at all, however much they have been privatized for their own
safety. Rather, they are rational judgments about the nature of things,
things that bear immediately on social and public life.''
She's proposing that maybe there's a bit of a tension when one
looks in sort of a legal sphere and when one looks more broadly to the
public square, the debate, the discussion of ideas, culture, society,
et cetera. As somebody who has been working on these things for a very
long time, particularly in the legal space, would you say this is sort
of a reasonable characterization of a tension? Does this tension exist?
And what are the implications if there is a desire to ensure that there
is, in the eyes of the law, a legal space for faith in the public
square, but at the same time not sort of conceding the privatization of
religion. How do you sort of square that tension, if it does exist?
Mr. Treene. Well, I guess I would answer it in my role, which is
someone at the Department of Justice. We're not concerned with what
arguments are listened to, right? So it's for the legislators to decide
what to listen to. It's for people in the public arena, writers, and
all this to hear thoughts and decide what's good and what's not. But
our role is to protect the fundamental rights. And we do that. We
brought a case on behalf of a student in Georgia Gwinnett University
who was told he could not proselytize on campus. He was confined to a
narrow free speech zone. That free speech zone actually was between the
dormitories and the classrooms and the rest of the facilities. This was
primarily a commuter college. Basically they were saying, you can talk
to 20 percent of the students, but the rest of them you've got no
chance of talking to.
So we're defending their right to put forth their arguments. That's
what the Constitution provides, various Federal laws provide. And
that's really our role. As far as which arguments are going to be
listened to and so forth, I'm going to leave that for other folks.
Mr. Hurd. One other question before we turn to the audience. I have
a whole line of questions for our other panelists, and hopefully
they'll be able to rejoin us. You sort of touch briefly on these three
models of governance, if you will--theocracy, secularism, and
pluralism. I appreciate the fact that you're trying to sort of stay
within time, but I'm wondering if you could sort of unpack those a
little bit more. And in particular, I'm wondering if you could walk us
through how you understand the distinction sort of between secularism
and pluralism.
Mr. Treene. Right. And I mentioned laicite, which is the French
model, which is the public square should be secular. So, for example,
barring girls from wearing religious clothing, the head scarves, hijab.
We at Department of Justice went to court to protect a girl's right to
wear a head scarf to school. The idea that the government shouldn't be
in the business of making religious choices for people, but the
government on the other hand should protect people's religious choices,
should make space for them, so that when you go forth into a job, into
a school, you don't have to leave that facet of your character behind.
You can bring it with you, without offending the idea that we're going
to be a country that doesn't establish one religion, that people can
bring their religions with them, participate in public life, try to
convince others share their faith with others.
Now, around a water cooler, if someone says, ``I don't want to hear
any more about gun control,'' or whatever, pick your hot issue, you
respect it, okay. You can step back. The same thing with religion. You
shouldn't be overbearing with it. But you certainly should be able to
share it with other people. That's the idea in a pluralistic model.
Mr. Hurd. While we wait for our other panelists to come back, I'm
presuming there are some questions from the audience. As you can see,
there's a standing mic right there. If you have a question, if you
could please identify yourself by name and by organization as well.
Questioner. The monitor's dead.
Mr. Hurd. Yes, I know. [Laughter.]
Questioner. Good afternoon. My name is Joe Ramallo. I'm an intern
for Congressman Leonard Lance over on the House side.
And I had a question today for you, Mr. Treene. Well, thanks for
being here. But Mr. Hurd had asked a question early on in regard to
some assumptions that the founding fathers, the framers of the
Constitution might have made when writing the Constitution. And you had
touched on the idea of inalienable rights. From what my understanding
of inalienable rights are, that there is an assumption that a belief in
a higher power is essential for the understanding or the belief in
inalienable rights. So, A, my question is, is that an assumption the
founding fathers had made? Second, more broadly, with that assumption
then does the First Amendment not protect freedom from religion?
Mr. Treene. No, certainly not. The founders certainly based this
right on natural law, the idea of a creator endowing people with
inalienable rights. But then look at the Constitution. Even before we
have the Bill of Rights we have the Constitution, which says there
shall be no religious test for public office. Right from the get-go I
think this comes down into this idea of the pluralistic model. The
pluralistic model doesn't push out religion from public life. You can
say, yes, the founders had a vision that religious liberty came from
God. But at the same time, that religious liberty applies to everybody,
believer and nonbeliever alike.
Questioner. Thank you.
Mr. Hurd. Any other questions? Well, I have one more.
Mr. Treene. Okay. [Laughter.]
Mr. Hurd. I do wonder sometimes whether the friction between people
of religious faith and people who may not have religious faith may
sometimes partially be rooted in a real or perceived lack of advocacy
on behalf of another, that is, the perception on the one hand is that
people of religious faith are not sort of robust enough in advocating
for the freedom of belief and conscience of the people who don't have
religious faith, and vice versa. I'm wondering, as you look back
through American law and public policy, some of the sort of laws and
statutes and sort of policies that we've seen, the public writings, et
cetera, from some of our founding fathers, were they just confined and
constrained to people of religious faith, or did they in fact cover
people who might not have religious faith?
Mr. Treene. Well, let me answer it this way: The Supreme Court's
been pretty clear on conscientious objector decisions that our
tradition of giving conscientious objection, which dates back to the
Civil War and the Quakers, nonetheless applies broadly to anyone with a
belief in the immorality of fighting a war that is general as opposed
to specific and opposed to a particular war. But anything, as they say,
that occupies the same space as traditional religious faith. So that
was a broad statement. It wouldn't cover everything, right? So any sort
of moral conclusion you came to that this was an unjust war. If
somebody has a deep-seated belief that war was wrong, it's as
comprehensive as to occupy the same space as religious faith, the
Supreme Court said that will suffice.
And it's the same thing when we look at free exercise of religion.
They look at what is sincerely held. Not does your belief kind of
reflect one of the major religions or even one of the minor religions.
There is a famous case involving Jehovah's Witnesses, and one said she
could not make tank turrets. And the employer said, wait a minute, this
other Jehovah's Witness who works for me makes tank turrets. Point to
me in the Jehovah's Witness documents where this violates your faith.
And the Supreme Court said, no. You can be a religion of one to have
that deep faith that we are going to protect. So I think that--mostly
it's just a question--we'll leave it to the philosophers to answer the
rest of it.
Mr. Hurd. And maybe just to tease something out about it, is the
understanding you just mentioned--is that in large part because there
has been a long-held deference to the rights of individuals and groups
to understand their own faith as they see fit, as opposed to having to
sort of demonstrate or prove something correct?
Mr. Treene. Yes. It goes back to Madison, right? Sort of conscience
is king, right? It would be very strange indeed if we said we're going
to define conscience according to how the government wants to define
conscience. But, no, rather they give it a broad reading, looking from
the standpoint of the person claiming the right of conscience.
Mr. Hurd. Any other questions from the audience?
I've actually been told that we're trying to get a bit of a
technical fix. So maybe if we could take maybe a 5-minute break, and
then we'll see if we can reconvene. Thank you.
[Break.]
Mr. Hurd. Great. With our panelists in Canada and Europe rejoining
us, we'll get back to some of the questions that I had intended to ask.
And again, we'll open it up again.
Mr. Treene. So I get a break now? I can, like, go get coffee and--
[inaudible]? [Laughter.]
Mr. Hurd. There were several references that you made to
secularism.
And Father Deacon Andrew, you referred to a quote, ``Self-
proclaimed neutral secular order that has limited conscience rights in
the medical and legal professions in order to advance a prevailing
secular orthodoxy, intolerant of genuine diversity.'' If this type of
secularism is not neutral, what is it? A second question would be, is
there such a thing as neutral secularism?
And I'm also wondering if you think that debates in the public
square suffer to a certain extent from the lack of a self-awareness and
openness about one's first principles? My impression from your comment
about neutral secularism was that there is a perception of neutrality
that doesn't actually reflect the reality.
So if you could answer those three and then, Dr. Van Bijsterveld,
I'll have some questions for you.
Rev. Bennett. Sure. Well, I have a certain knowledge, adding onto
Professor Van Bijesterveld's arguments about there being a secularism,
that there are various meanings of secularism. Charles Taylor has
really charted those quite nicely in ``A Secular Age,'' that the
understanding of secularism has evolved. Now I would say, certainly in
Canada and maybe also in other Western democracies, there is a premise
that secularism is neutral, that it appears at a neutral space where
people of different beliefs can exist. But in fact, certainly in the
Canadian case, what we're seeing is not that type of what I would call
open secularism, but rather a secular position that itself is a value
proposition and it has a particular faith, it has particular practices.
I would say, in Canada certainly, the types of secularism we're
seeing in our institutions is a type of secularism that tolerates
diversity, but it's a prescribed diversity. As long as you're the sort
of diversity that we like and fits with our definition of a diverse
society, then you're fine. However, if you hold beliefs or views that
contravene or are different from that identified diversity, then you
are going to be on the outs within society. I think there's the
possibility for the state to be neutral.
I'm glad that in Canada we have a secular state. I wouldn't want a
particular religious community being bound together with the state.
That secular model is very good, but it needs to be, in Charles
Taylor's way of expressing it, an open secularism where the state
ensures that people of different religious beliefs, different belief
systems generally, are able to flourish within the body politic. A
closed secularism is where the state would dictate that there could be
no public displays of religion.
I think in Canada right now, a lot of communities, but I would say
in particularly in my own Christian community, certainly Catholics and
also Protestants of different traditions, I would say in many ways have
accepted implicitly the privatization of public faith, that there has
been a willingness to back away from the public square in order to
embrace this desire for tolerance, a desire to have a neutrality. In
fact in backing away of the public square and into the comfortable pew,
let's say, where religious practice is simply something for the place
of worship or for the home, that public square then is a vacuum, it's
vacated by people of religious belief and there's a vacuum created,
which will be filled. When you have that vacant space, it means that
public debate is not being enriched by those particular religious
traditions.
I think a genuine pluralism is a very deep pluralism where you have
people of many different beliefs, many different philosophical
perspectives who are able to meet in the public square and engage with
one another. I think that's what we should be striving for and that, I
think, is at the heart of religious freedom in democracies.
Mr. Hurd. Thank you.
Dr. Van Bijsterveld, you spoke of at least two terms, programmatic
secularism and procedural secularism, defining programmatic secularism
as one that stands for fending off manifestations of religion in the
public square and procedural secularism that is, as you put it,
fundamentally open to manifestations of religion in the public square,
the state itself being the secular. Are programmatic and procedural
secularisms limited to law, policy and regulation or do they extend
into other spheres, like culture?
Dr. van Bijsterveld. Well, yes. First of all, I think it's very
helpful, and the distinction is not my own, I derived it from the
former archbishop of Canterbury. He says this procedural secularism, in
which he defines a state as a community of communities where various
voices may ring, is where the state itself has an ideal where fills to
public domains. What you would see is that in Western European
countries, the French laicite, the French system of church-state, in my
view, comes very close to that programmatic secularism. Whereas other
countries, for instance my own country, but also other European
countries, are much more, in the sense, procedural secularism.
He also talked about the word ``neutrality'' of the state and finds
the word ``neutrality'' very complicated and also very confusing and
fuzzy because neutrality of the state does not mean you're value
neutral, states are not value neutral, states in its policies is
continuously involved with all sorts of values. It's not value neutral.
But what could it mean? In my view, it would mean that the state
does not identify with one particular faith tradition. That seems to
say it's neutral, it doesn't identify with one particular faith
tradition. It can also mean that the state has a fundamental openness
for all religions.
I'm not so much in favor of using the words because it can mean so
many things, ``neutrality.'' If you use it, you should be very clear in
how you use it. In my sense, it certainly would mean that the state
does not identify with one particular tradition. Don't let us think
that the state is value neutral, because the state isn't.
Mr. Hurd. Mr. Treene, it's very striking in looking at the
establishment clause, that is that the state will not establish a
religion or favor any particular religion, that it seems to stand
somewhat in contrast with what we saw from some of the earliest
European settlers to the United States. I'm wondering, as someone who's
a bit of a historian when it comes to religious freedom and our
founding documents, the Founders, of course, were bearing in mind the
European experience where there was a very strong intermingling of sort
of temporal power and faith and religion in a very sort of explicit and
official way. Then, of course, they also were bearing in mind the early
American experience as well. Can you, to the extent that we sort of
have a sense of reflections on our own history here and that sort of
early pre-United States period--was that something that they very much
were thinking about?
Mr. Treene. Sure. The presumption in Europe was that this is the
1600s, 1700s and earlier was that, a godly king would make sure that
people within their kingdom followed the faith. That was not seen as
controversial. As I said, it was sort of a milder theocracy that you
saw in England where people were tolerated, but be taxed for support of
the Anglican Church, you could not work on the Sabbath and heresy was
punishable.
When they passed the Virginia Statute on Religious Freedom, though,
that swept all that away and it was sort of a two-part thing. It was
the defeat of a bill that would have supported clergy in the State of
Virginia, there would only be a few chosen sects that would have been
supported, so it essentially established the Anglican Church as the
main church and then a few others as well. And they struck down that
law.
Then the statute banned any heresy laws, laws barring people who
were atheists from serving as executors of wills and a whole range of
laws that were swept away to preserve that fundamental--again, that
duality of we're not going to establish religion, but at the same time
we're going to let people exercise their religion as their conscience
leads them and we will not tolerate any civil burdens or punishments.
Mr. Hurd. The next basket of questions has to do with the subjects
of friendship and civic engagement.
Dr. Van Bijsterveld had said that, ``for both public authorities
and religious communities, it is important to get to know each other,
if they do not already.'' One could argue that this could actually be
extended to sort of the full range of persons and relationships in a
society.
There's a very interesting and compelling book written by a
political scientist--he's now at Brown, he was at Michigan when he
wrote it--named Ashutosh Varshney. It's called ``Ethnic Conflict and
Civic Life: Hindus and Muslims in India.'' He and his team looked at
this massive dataset, focusing on violence between Hindus and Muslims
in the Indian context. A lot of the research that had been done to that
point had focused on where violence had happened and why it had
happened. He was more interested in why it didn't happen in particular
places. You might have the same rumor, the same spark that had sort of
prompted violence in another place, and yet in this other location, we
didn't see it. So the question was, why?
His thesis basically is that in these areas where the violence
didn't happen, there was very strong civic life. And what he meant by
that very specifically was you had Hindus and Muslims who came together
for cricket clubs or for book clubs or they had gotten tired of the
local sanitation not working and had decided it was time to come
together and do something about it. So they got to know each other in a
way where they weren't just sitting around and sort of having what we
might traditionally think of as interreligious dialog. These were
people who just kind of got to know each other and said as human
persons they had a common interest, maybe a common objective. Because
they got to know each other in an organizational context, when there
was conflict they were able to organize each other, they were able to
organize very, very quickly.
So, Father Deacon and Dr. Van Bijsterveld, with that in mind, what
is the role of friendship and working together on common interests or
working together on a common good specifically between people of
religious faith and people of no religious faith to sort of engage in
the enterprise, as Father Deacon put it, building our common life so
that our fellow human beings may flourish?
Dr. van Bijsterveld. Are you asking me?
Mr. Hurd. I'm asking both of you.
Dr. van Bijsterveld. Okay. Well, thank you. Well, I think it is
very important indeed. Of course, friendship is maybe a lot to ask, but
at least it's important that people need each other and that they
engage in professional relationships or other civic relationships
concerning civic activities. Because if you don't know each other, it's
very difficult to form a good understanding of the other. So, yes, I
think it is very important.
I think it is also especially important also in the law. If you
look at the history of church-state relationships in the Netherlands,
for example, we often think that they have evolved because the lawyers
got better understanding of the law and of religious freedom, and it
was implemented in a better way. Of course, that is true to a large
extent. In retrospect, we could also see these developments of more
relaxation of church-state relationships in the function of a societal
element where different new religious organizations got to know each
other and got to know the state and the other way around. I think that
is very important now where in Western Europe we have a large presence
of Islam, but Islam is still very much unknown to us, and so are the
different groups. So my answer is yes.
Mr. Hurd. Father Deacon?
Rev. Bennett. I would say I think there is, in the case of Canada,
and certainly I would hazard to guess it would be the same for the
United States, we are a country that has, for most of our history, been
very diverse. You can walk down any street in this country and you just
see that diversity is a demographic reality. This is a very diverse
country. Friendship between people of different faiths and different
beliefs is essential for that flourishing that I mentioned, for that
flourishing to build a common life together.
Now, if the official narrative or the narrative that is coming out
of our institutions is that somehow, implicitly, religion can be a
source of potential conflict and so, therefore, we can't have public
expressions of religion because that emphasizes maybe too much
difference and, therefore, we're not going to be able to build some
sort of perceived or false neutral society--if that's the case, then
it's going to be very hard for us to encounter one another and to share
our different faiths.
I think this is particularly true in the university, in the
workplace, in the factory, wherever it might be. So often we are told
or we are conditioned socially to leave our religious faith at home. We
have a little box on our table as we exit the house and we open the box
each morning, we drop our religious faith in there only to pick it up
when we come back home in the evening. When we're in the public space,
when we're at the university, when we're in our office, God forbid we
talk about our religious beliefs because it might offend someone or it
might lead to some sort of conflict. I think that is a very unfortunate
and very misguided approach.
Rather, we should be allowed to be our entire selves. Certainly,
this is a narrative that is dominant on a whole range of different
identities, whether we're talking--[inaudible]--certainly of a strength
about allowing people to be themselves. That's the same for the
religious self. We have to be able to live our lives, our religious
lives, publicly.
Historically throughout human history, our religious lives have
been lived publicly and that needs to be encouraged. Because when we
encounter one another and we encounter one another not in some sort of
relativistic, mushy middle where there's some sort of false consensus,
when we encounter one another and we can say ``I profoundly disagree
with your religious beliefs or I profoundly disagree with your moral
perspective, but I still recognize in you my neighbor and I still
recognize in you that you have a dignity as a human being and I am
called to be in a relationship with you so that we can build a society
together.'' That needs to be the narrative, rather than pushing
religious belief into the dark places, because that is not healthy.
Mr. Treene. Yes, just to respond to that, I agree, there's a
temptation to think that the more we allow for religious expression and
religious liberty, we're going to end up with more religious conflict
as people knock against each other in the public square. Actually, the
data suggests otherwise.
Tim Shah at Georgetown University, a sociologist, has done a lot of
work on this. If you plot out the levels of religious conflict in a
country and you also looked at the level of religious liberty, what you
actually find is, in general, there are a few outliers--but the more
freedom you have, the less social conflict you have between religious
groups. It's those countries that try to tamp down on religious freedom
that end up having the greatest interreligious conflict.
Mr. Hurd. I know that one of the legal questions that has come up
in the last decade, 15-plus years in particular, has been this question
of federal grants going to faith-based entities, particularly faith-
based organizations. And the charge has been that this is a violation
of the establishment clause, that the government is essentially
weighing in.
Is it that? Or is it ensuring that faith-based entities are able to
compete for grants just as any other entity, whether secular or not?
Mr. Treene. Well, to go back to something that Dr. Van Bijsterveld
said at the beginning, we said tension between religious equality
arguments and religious autonomy, this one involves both: The idea that
a religious group shouldn't have to compromise its beliefs and, say,
set up a secular parallel organization to carry out social works, that
it can integrate those. That's the autonomy.
But also, the equality argument is, if they're offering a secular
service--a homeless shelter, a jobs program--shouldn't the religious
organization be equal in coming forward with a plan that they think is
effective? And can't the government, if it's a secular program, fund
it, even if it's run by a religious group? That's something that the
Bush administration, the Obama administration, the Trump administration
have all embraced. This initiative has continued through all three of
those administrations.
And I'd be very curious to see how that's handled in Canada and in
the Netherlands. My take is that, generally, other countries aren't as
cautious about government funding in those situations.
Mr. Hurd. Yes. If the two of you would like to respond to that,
that would be great.
Rev. Bennett. Well, certainly in the Canadian case, separation of
church and state is not a constitutional principle in Canada. We don't
have the non-establishment clause or the free-exercise clause.
Certainly, freedom of religion or conscience in the Charter of Rights
and Freedoms would be sort of rough equivalency of the free-exercise
clause. But in Canada you will have provincial governments, municipal
governments, the Federal Government providing support to a variety of
faith-based institutions. Certainly in the province of Ontario,
taxpayer dollars are used to support a very wide and large network of
publicly funded Catholic schools in the province. That's been there for
a considerable period of time.
I would say that there's a fairly well-established series of
programs for federal funding and provincial funding where faith-based
groups can obtain funding to support, in many cases, explicitly faith-
based activities. We certainly have, as in the United States, a wide
array of public holidays that are oriented to the Christian calendar.
People are being paid to not be at work those days. That's another
example that I think often gets overlooked in the United States.
Mr. Hurd. And Dr. Van Bijsterveld, any reflections on the European
context?
Dr. van Bijsterveld. Yes. If I may take that situation as an
example, it's a fairly highly developed social welfare state where the
state, of course, plays a very strong role in the redistribution of
finances for public goals. The basic rule is that if the state gives
subsidies for carrying out the activities that it wants to promote,
then faith-based organizations should not be excluded on the basis of
their faith, only when it compounds very specific differences,
functional differences, then a difference may be made. But not on the
basis of faith.
Maybe for an American audience, it's also interesting to say that
our whole organization of our educational system shows this basic
understanding very much. We have a dual system where state education
and public education exists next to private education and private
education is practically 100 percent also conventional education. The
states raise funds for public education, public schools, but also for
those private conventional schools. Of course, those private
conventional schools are subject to most regulations that the state
schools are subject to as well, of course with the exception of
respectful religious identity.
Now what we've seen with the retreat of the social welfare state
somewhat in the financial domain, they have these cooperation
arrangements also exist. We even see new forms of cooperation between
states and the church exist also on a financial level.
Rev. Bennett. I think just to add to that, in the immediate case,
we have seen increasing tensions around the role that particularly
provincial funding for Catholic education and especially there have
been some fault lines that have been drawn over the last little while.
Also, with private schools that receive virtually no state funding,
there was a very famous case that went up to the supreme court of
Canada involving an independent Catholic high school, Jesuit high
school, in Montreal, Loyola High School. The provincial government in
Quebec brought in a new curriculum on teaching basically values and
ethics that was very--again, to use the word--neutral in that you could
not approach it from a particular faith perspective. This curriculum
was imposed on all schools across the province. Loyola said ``we will
not teach this according to the model that you've put forward, we will
teach it from a Catholic perspective, we're not going to teach that all
faiths are equal, we believe that there is a preeminence for
Catholicism because that's what we confess.'' The province took them to
court. In the end, the supreme court of Canada found in favor of Loyola
High School and said that as an independent Catholic school they had a
right to teach their students about their particular Catholic faith,
regardless of what the province had to say about it.
There are, even in a very strong social welfare state like Canada
or the Netherlands, there are some fault lines emerging, and certainly
here in Canada.
Mr. Hurd. Just on the subject of federal funding, we have a bit of
a different legal regime in the United States. There is, both for
funding purposes, for development, and also for activities in the
United States, there is an explicit prohibition on the use of those for
religious purposes, correct?
Mr. Treene. We don't want to get into all the legal niceties, but
there's a difference we have between direct aid, which is the
government giving money to an organization directly, choosing a
provider, like saying you have a good homeless shelter, I'm going to
fund you. If that's the case, it has to be a purely secular program.
If, however, it's an indirect aid, like we say we're going to give
people job training scholarships or a piece of paper that lets them get
job training and they want to take that to any job training that they
choose. Salvation Army has a program that integrates ministry and drug
treatment and job training and so forth, that's fine as long as it's
the person's choice to take that and indirectly give it to a religious
purpose. That's getting into the niceties of American law.
Mr. Hurd. We have a question from the audience.
Questioner. I was just wondering, all three of you have spoken
about the importance of, one way or the other of whether we like
neutrality or not, the government not taking sides in religious
controversies--you know, not writing prayers for schools and so on. I'm
just looking in this pamphlet of the 68 countries listed among the OSCE
participating States and their partners. I don't know about a lot of
them, but I have in my head at least 26 of them don't at all fit that
model. So I was just wondering--and even if you go back as recently as,
say, when President Reagan was saying that Engel v. Vitale was wrongly
decided and that there should be still prayers allowed in American
public schools. Most of our own history in this country doesn't seem to
reflect that, a lot of these other countries don't.
I was just wondering, for the three of you, from the point of view
of international religious freedom as promoted by the Helsinki Accords,
how important, even if you think that it's better to have a government
that doesn't take sides in these discussions, how important do you
think it is for the human right of religious freedom that the
government not takes sides in religious questions? Or is it licit for a
government to hold one particular religious tradition or set of
traditions in a public place of honor and give it place over others?
Mr. Hurd. And if you could--your name and affiliation?
Questioner. Sorry. Dan Burns, Catholic University of America.
Rev. Bennett. Sure. That's a very good question. As was raised
earlier on, there are various types of state systems in relation
between religion and the state.
I think, certainly as a Canadian, we come out of the British
tradition very strongly. In the United Kingdom right now, there are two
established churches--there's the Church of England and the Church of
Scotland. They're both established, and so there's a precedence for
them, particularly the Church of England, with bishops sitting as
spiritual peers and as lords. There's a particular preeminence for
Church of England schools and so forth.
The United Kingdom over its history has been able to fairly
successfully evolve into a state where you have an established church,
yet there is a very strong pluralism and respect for religious
difference. I think that model is acceptable as long as there is that
respect for pluralism and the state is, while being tied to a
particular church or a particular faith, it does respect the rights of
all of its citizens to live out their faith freely, both privately in
terms of worship and their practices at home, but also publicly, to act
on that faith in the public square.
When you look at it sort of through history, very often, certainly
in the case of the church, when the church and the state have been
fused, it's usually in the end not been that good for the church, but
the state certainly hasn't suffered. I would argue, from my own
perspective, from the perspective of the Canadian experience, that it's
good not to have a particular established religion, but rather that the
state should be very broad in its understanding of religious freedom
and should be very respectful to those citizens who do want to have
religion playing a central role in their lives, again, publicly and
privately.
There needs to be greater breadth than there is currently for a
state such as Canada. There needs to be a much broader understanding of
religious freedom rather than a narrowing as we're seeing.
Mr. Treene. Yes, I would say in the U.S. context, the Founders in
this respect, like in so many other respects, were both idealistic and
pragmatic. The idealistic vision is conscience, protection of
conscience, and they decided, looking back at history, established
churches tended to infringe conscience. I don't think it's the
establishment clause itself is a fundamental principle the way that
conscience is, but it's seen by the Founders as that which will lead to
the protection of conscience the same way many of our liberties are,
how they designed the United States, the Government, and divided the
powers. There's nothing in principle about division of three branches
of government that leads to liberty, but the ultimate goal was the
preservation of liberty and true democracy.
Mr. Hurd. Dr. Van Bijsterveld?
Dr. van Bijsterveld. Yes. In Europe, of course, our situation is
quite different from the United States. In many countries, there are
stratified systems of a church-state relationship. And the ultimate
example is, of course, a country where there is an established church.
We have various countries like that in Europe. England has been
mentioned as an example, but also Denmark or Greece. Among them, those
countries are quite different. For instance, in England the state and
church are really two different entities--the state and the Anglican
Church--but there are a number of connections between them,
institutionalized connections. In Denmark, for instance, it's very
difficult to distinguish the established church from the state as an
organization. In Greece, it's different altogether.
Apart from those state churches, there are also stratified systems
in which the states cooperate with particular churches or give some
churches a more elevated status. Usually, that is a system that is open
for all churches who fit the particular requirements.
I agree also with Andrew when it says that the issue is not so much
if there is a stratified system or whether there is an established
church. The basic issue is, given the system, is there real religious
freedom and also equality regardless of religion?
Mr. Hurd. Thank you. We'll have one last call for questions from
the audience and then we'll wrap after that.
Questioner. Hi. I have a question for Mr. Bennett, although, as far
as I understand, he's looking at my back. So that's really rude of me,
I'm really sorry. [Laughs.]
My name is Ann Sineva. I am working on government affairs and
public policy here in D.C. with the Church of Scientology National
Affairs Office.
It's good to see you, Mr. Bennett, again in your new capacity.
Rev. Bennett. Nice to see you.
Questioner. Yes, I have a question about mostly civil society
because there was a lot said tonight about church versus the
government. I want to challenge you on something you said earlier
today. Actually, I would be very honored if other panelists commented
as well, but the reason why I'm singling out Mr. Bennett is because he
said something earlier, which I'm paraphrasing slightly, but you said
that in a truly diverse, pluralistic society, people would live with
different theological and ethical views. I wanted to challenge you on
the point about ethical and see if you had more to say on that and
could elaborate. Because I believe that if we had a society built with
people that had completely different ethical views and no agreed-upon
moral code, then it would no longer be a community, a society.
So, obviously, the Supreme Court takes cases concerning ethical
matters and Mr. Treene deals with that constantly in his work. I'm
curious to see your perspective as a religious leader, what do you tell
your congregation? Where is the common-sense ground there between our
differences, but also ethical points that we could survive on together?
Rev. Bennett. Yes, very good question. Thank you for the point.
Just by stating that, obviously, I'm a Catholic, I'm a deacon in the
Ukrainian Greek Catholic Church, and so I believe that what I hold to
be true, both in terms of my theology, in terms of my ethical view and
my moral views that stem from that theology and from a Christian
anthropology, I believe that to be true. I believe it to be true not
just for me, but I believe it to be true for all of you. It's a
universal and objective truth, ethics and so forth. I think that as a
society, we should strive to have a common ethic and a common set of
moral beliefs that champion the whole dignity of the human person.
I'm also part of a society. There are going to be people who
disagree with me. So then, how do we go on? I think we have, again, an
open public square where I have the ability as a Catholic to try and
convince others of the truth of my belief. If, however, the public
square becomes tightened and if it's constrained to me and I can no
longer do that, then I'm going to be frustrated in my citizenship and
I'm going to probably begin to retreat.
It's not that I have a relativistic approach to ethics. I believe
that the ethic that I profess and try to live as a Christian, as a
Catholic, is true. I believe it's objectively and universally true, but
I need the ability in the public square to express that. And when I
come up against people that have different moral, ethical, theological,
philosophical beliefs, I need to be able to dialog with them. I need to
be able to engage with them. And I need to see in them a common
humanity with me.
We need common humanity and we need to be able to build a society
based on that common humanity, but also recognizing that there are very
different belief systems out there and a lot of us are going to claim
that our belief systems are true. That's the nature of society--it's a
very messy business, but there has to be that space in the public
square to engage with one another and to have the ability to convince
the other.
Mr. Hurd. I want to thank our panelists.
I want to thank those of you who came here today, those of you that
are watching online, and also a special thanks to my colleagues, to
Jordan, our hearing coordinator, to Stacy, our communications director,
to Cade and Thea, our fellows, and Alexa and Cecilia, our interns, for
helping put this together.
This was certainly not intended to be comprehensive--impossible to
be so in so short a period of time--but hopefully it has added
something to the conversations that are happening off the Hill.
Thank you. [Applause.]
Whereupon, at 4:16 p.m., the briefing ended.
[all]
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