[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                       

======================================================================

	              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
                      [email protected]
                      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.

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