Religion and Open Society Symposium - Session II

This event is part of the Religion and Foreign Policy Symposia Series, which is made possible by the generous support of the Henry Luce Foundation.

WALTER RUSSELL MEAD:  All right.  May I have your attention, please.  Would everyone please sit down?

All right.  I'd like to welcome you to the second session of our Council on Foreign Relations seminar today.  This is a symposium on Religion and the Open Society.  This is our second session, on Religion-State Relation.

I am Walter Russell Mead, senior fellow for U.S. foreign policy.  It is my honor to introduce to you Abdullahi Ahmed An-Na'im, professor of law, Emory University Law School; Noah Feldman, professor of law, Harvard Law School and adjunct senior fellow here at the Council; and Philip Hamburger, professor of law, Columbia University Law School.  Welcome.  Welcome, everyone here, and also welcome to all of those who are joining our symposium this morning on video.

I'd like to remind you all that this is an on-the-record session, so anything that you say may be taken down in evidence and used against you.  (Laughter.) 

In our second session this morning we're going to try to follow up some of the lines of conversation that were introduced in the first session and also introduce some new themes. 

As the discussion was proceeding this morning, I was rather forcefully reminded that Abrahamic religions in particular -- that is, Judaism, Christianity, and Islam -- and some of the secular ideologies that have historically derived from that mix of religious cultures are bodies of thought which believe that there is a way the world ought to work.  There's a right way to live.  And obviously, if there's a right way to live, there are wrong ways to live.

And there are universal standards of justice, of conduct, that at least in theory ought to apply to all people everywhere.  And in human societies, as a general rule, there are states -- that is, bodies of organized authority whose mandate it is to see that things are run properly.

And so in Abrahamic societies, the relationship between the religion, which teaches us how the world ought to be run, and the state, that group of people whose job it is to run the world or at least to run that portion of the world under the authority of a particular state, have a charged relationship. 

Religious authorities will often, in sermons or otherwise, tell political authorities and state authorities how they ought to work.  Religious authorities will try to shape the conscience of voters in democratic societies so that the voters will vote for politicians who espouse the values that -- by which the state ought to run.  Certainly in our society in the United States we see many efforts, particularly in an election year, in which religious leaders of various kinds are trying to shape political outcomes.

Now, our three panelists today who, I guess, represent at least a good percentage of the faiths of the family of Abraham, are scholars who have spent a lot of time investigating the relationship of religion and state -- how it actually operates and how it ought to operate.  And I think it might be useful for the audience if we proceeded maybe just right down the panel and each of you share a kind of an overview of your sense of how religion and the state ought to operate, from your own particular perspective, whether that's a faith-based perspective or a more secular approach. 

And if you would like to start, Professor?

ABDULLAHI AHMED AN-NA'IM:  Good morning, everybody, and thank you for being here. 

I speak as a Muslim, so my perspective is religious.  And it is my perspective that indicates for me that I need the state to be secular in order for me to be the Muslim I choose to be.  And the only possibility of being Muslim is by choice. 

So I stake the secular state as a prerequisite, as one of the conditions for the possibility of being Muslim.  I may not be a good Muslim -- I'm sure I'm not -- but whatever degree of being Muslim it is, it has to be within a framework of a secular state.

But I make a distinction between the state and politics.  And I think this is a point that often, in the American system, is not clear enough -- that often people assume that separating church and state takes care of religion and politics.  (Laughter.)  My claim is that we need to deal with the other issue separately; that is, the state and religion should be separate.  By a secular state, I mean a state that is neutral regarding religious doctrine, but religion and politics cannot and should not be separated.

So the paradox is how -- for me is how to regulate and organize the connectedness of religion and politics in a way that safeguards the separation of religion and the state.

MEAD:  Okay.  Noah.

NOAH FELDMAN:  Thanks, Walter.  Thank you, Abdullahi. 

I just want to say quickly that I'm really grateful to be asked to participate on the panel with such distinguished scholars whose views I have drawn on in my own work.  I guess -- let me start with a quick historical point that draws on Walter's. 

I think that in modern Europe, one solution that was proffered to the problem of how to arrange religious affairs and the affairs of state was to suggest that the religion of the sovereign of the state would be the religion of the state.  You see this already in the Treaty of Augsburg, and then it becomes hardened at Westphalia, and it becomes in some way a basis for all of our modern thinking about church and state.

And that's easy to do when the sovereign is one guy.  When there's one person who is the king or the queen and says I'm the sovereign, that person picks a religion and then the state religion is that religion.  Now, of course, in practice, if that person flips religions, that makes things very complicated.  If you don't know whether that person is born into one religion or another, it makes things complicated.  But it sounds like a pretty good sort of working solution to the problem.

I don't think we would have the same set of church-state problems we have today if it weren't for a weird quirk that happened about a hundred years after that solution, and that quirk was the idea of popular sovereignty.  The core idea that underlies all of our democratic states, the core political idea, is this idea that it's not that one person is the sovereign; it's that all of the people are sovereign. 

Then if all of the people belong to the same religion, it's still not so difficult to say that the religion of the sovereign is the religion of the state, because if all of the people think of themselves as Muslims, and let's say they're the same -- belong to the same school of Islam, then you could still say that the state religion is the religion of that group of people and nobody will make much of an argument about it.

But if the sovereign people are plural with respect to religion, if they belong to lots of different religions, now you have a very serious practical problem.  How can you have the religion of the sovereign be the religion of the state if the sovereign belongs to many religions?  And it's at that point, I think, historically, that you start to see people saying maybe the state should not associate itself with any religion.  Maybe there shouldn't be any official religion.

Now, I wanted to use that historical background because I think it helps for me to see why I think that not every country in the world needs to have the exact same arrangement with respect to religion and government.

To my mind, there are some principles that are universal and should apply everywhere -- this goes to Walter's first point about the Abrahamic religions and their universalism -- and others that could be different in different places.

The parts that seem to me to be universal are the ideas of a basic human right to choose your religion.  Not everyone in the world necessarily agrees with this, but almost all of the great world religious traditions claim at least that there's no coercion in their religion.  The Koran actually says this explicitly, which gives it one step up on the Hebrew Bible or the New Testament.  But all of the world's religious traditions talk this way, I think it's fair to say.  Not all -- in fact, none -- are very good at implementing this in practice. 

But I think that that is enough of a universal value to say that every state, no matter where it is, even if it has an official religion, ought to allow people the freedom to choose their own religion, and with that comes the right as well not to be discriminated against on the basis of your religion.  To me, that's a universal value.

What's not a universal value, to me, is the idea of a secular state.  To me, if the society wants to arrange itself because the vast majority of people, or even just a slight majority of people prefer there to be an official state religion, provided that they grant every individual the basic human right to religious liberty, I think that that's just fine.  I think England is a good example of this.  There the established church may not be very active today.  It may be very difficult to find people in Anglican churches -- (laughter) -- but it's nevertheless the case that the Archbishop of Canterbury is a politically significant figure, not just because he says things that get people riled up every so often, but because he is connected to the organization of the state in an important way.

Similarly, in many Muslim countries, I think it would be practically absurd and, in principle, unnecessary to demand that the state not identify itself as Islamic, because that is what many, many, many -- the great majority, in many cases, of the population wants.  What is not absurd, however, is to insist in those cases that such states respect the basic human right to freedom of religion. 

And in a country like the United States where we have tremendous religious diversity, it would equally be absurd to say that we should have an established religion.  And as a matter of fact, our Constitution recognizes that and makes it impossible, at least formally, for there to be an established religion.

So I'll stop there, without claiming to have resolved any of the complicated difficulties that analysis raises, but at least it gives a framework for thinking that there are some things that everyone should do in every state, some rights that everyone should respect, but that the arrangement of church and state could still differ very significantly from place to place.

HAMBURGER:  Well, I confess I largely agree with what's been said thus far and -- in pursuing the theme that perhaps there can be variety in the world that's perfectly wholesome and that need not trouble us.  I can't help, though, observing that it may be easier to figure out what should not be than what should.  And that leads us to the very sort of narrow range of objections to sort of bullying that we don't like, that can come in many forms.  But that still leaves open many, many possibilities.  And fortunately, England is just one of them, though amusing these days.

It strikes me that religion is often treated in this country as something distinct from the state, something to be kept apart from it, perhaps something even dangerous.  And I -- one of the things one has to worry about is that Americans tend to forget the degree to which the state is itself constituted by religion.

Now, politically we find this an anathema to a Christian nation, but in a more profound sense, this is inevitable, and any anthropologist would point out you can hardly discuss a society without getting into its religion.

The very notion of equal liberty has its foundations in religion.  Now, we can claim equal liberty, equal rights, as some sort of right.  But if it's any more than just a demand, if it's actually going to be a moral duty -- for example, if slavery is immoral, and you actually have a duty to resist it.  If suicide is immoral, you have a duty to resist that -- where are we draw these conclusions from? 

And Locke has a lot to say about this, for all of his failings as a serious philosopher.  Nonetheless, on this point, he comes as close to profound as he ever gets, I think.  And we are too quick to forget that without the religious basis for equal rights, we would be impoverished and we might still have slavery.  So religion is fundamental to the very liberty that we think we sometimes need to protect from religion.

Second, it strikes me that in all societies, and although I'm not an expert in the Middle East, I gather from scholars of the Ottoman Empire that there are a lot of sermons, even in the 14th century, that are very similar to Christian sermons being given at the same time about the role of religion as part of the social structure.  If you want a degree of freedom from severe laws, you'd better hope these moral constraints (is ?) a fairly successful sort.  And religion inevitably has its own way of accomplishing that.

And then finally, it was only recently that we have escaped the notion that we have a government ordained by God.  And in the West we may think we're above religion now -- almost, perhaps, above God.  But in most of the world, such heady thoughts haven't yet permeated quite so far.  And it strikes me that if we are going to talk about religious liberty, we have to keep in mind the fairly -- importance of religion, even to the secular state. 

But I'll stop there.  Thank you.

MEAD:  Very good.

Well, I'm taking away a couple of things here.  One is I've been reminded again of just the sheer diversity of relationships that exist between religion and the state, even in the so-called Christian, so-called West.  So we not only have England, where the queen can't marry a Catholic or become a Catholic.  In Argentina, the president of the Argentine Republic must be a Roman Catholic, something that caused Carlos Menem to get baptized. 

In Germany, the president of the republic can be any religion he chooses or doesn't choose, but if you do sign up for church membership, the state will take a percentage of your income in tax each year and give it to those the state chooses to recognize as the legitimate authorities of the religion which you profess. 

So we can find all kinds of varieties with -- and yet it's interesting that all -- that certainly Germany, Argentina, and Britain, if you asked most citizens of those states do you live in a secular country, they would answer probably yes.  And it's -- while Americans like to talk about how much more religious America is than, say, Germany, I've been reminded by a member of the German Bundestag there are actually more doctors of divinity in the German parliament than in the American Congress.  That may explain something; I'm not quite sure what.  (Laughter.)

But then also I'm reminded, listening to the panelists, that our visions of what is the proper relationship of religion and state are often profoundly shaped by our own religious views.  There's the story in Belfast of a guy who's whisked into an alley by masked gunmen who point a gun to his head and they say what are you, Catholic or Protestant?  He goes, I'm an atheist!  I'm an atheist!  The gunmen think for a second and they say well, are you a Catholic atheist or a Protestant atheist?  (Laughter.)

And there's a sense in which a society can be Protestant secular or Catholic secular or Muslim secular, and those are not always the same thing. 

And what I'd like to do is ask the panelists to explore -- I think this is building on something that Philip said, that in America, certainly, our idea of this separation of church and state, or the relationship, is profoundly based on the overwhelming sort of Protestant character -- and Noah's written about this as well -- of our people at the time of -- you know, in the early American republic.

To what extent is that experience -- you may have some thoughts here, too -- applicable to people of other religious traditions and backgrounds, or how do we have to reconsider what seems to us to be natural in terms of separation of church and state that would work differently in another culture with a different background? 

Would you like to start on that, Phil?

HAMBURGER:  Sure.  Something you may know, I have a certain distaste for the notion of separation of church and state because, by accident, I fell into studying it and, to my horror, found out more about American history than I wanted to know.  (Laughter.)

To put it very bluntly, it's attributed straight to Jefferson, but it's popular --because of theological prejudice, a distaste for Catholicism, particularly Irish Catholic immigrants, the goal was to separate the church from the state.  And it's far from being a minoritarian position; it's a majoritarian position.  It's about protecting the majority of free individuals and their direct relationship to the state from a church which would exert its influence upon the people and deprive them of their mental liberty, thus debilitating them from being good citizens.

And in fact, if you -- just think for a minute.  Which is the organization that most popularized this idea in the first half of the 20th century?  The ACLU?  No.  The Ku Klux Klan.  And once that settles in, you get the idea.

So this fits in with what Noah was saying earlier.  It strikes me that it's very dangerous for us Americans to go around the world talking in broad generalities that seem natural to us, but may be only because we haven't looked at ourselves too carefully.

Our most common generalizations are separation of church and state and democracy.  Well, God help us if that's what we're exporting, and God help the rest of the world.

Democracy isn't what we practice here and it's the last thing we should wish on anyone else.  Our Founders quite deliberately established a republic.  And when one talks about democracy in many parts of the world, it sounds like majority rule.  In fact, it could have an almost fascist implication in some parts of the world.  One has to be very, very careful about overgeneralization.

And by the same token, I think separation of church and state imposes, as Noah suggested, such a high burden on nations for which this is just incompatible, obviously incompatible with their history.  So the best thing we need -- and this fits in with the views of my colleague from Emory -- we need a little modesty, not only in contemplating religion, but also our own propaganda. 

There's an old line from World War I about propaganda: one will not quite persuade one's enemies, and almost defeat oneself.  And I fear separation leads us in that direction.

MEAD:  Abdullahi, would you like to --

AN-NA'IM:  Okay.  I think various ideas will determine that the secular state everywhere is distinctive, historic, and contextual.  I mean, there are no two identical secular states anywhere. 

So secularism, or secular states, and the question of the relationship between religion and the state and religion and politics, which I try to always emphasize are different propositions, this relationship is contextual and historical.  And therefore every society has to negotiate this for itself over time, and this negotiation can go one way or the other.

But I think the -- one point I would like to bring to our discussion is I think we tend to dichotomize too much the secular and the religious.  And the so-called secular-religious dichotomy I think is overstated because religion becomes relevant in the secular world.  It is not the abstract sort of sensuality.  It is -- the relevance of religion in guiding people live -- lies in this world.  And therefore there is an inherent connectedness between the two.

Just referring back to what this morning was being said about the Koran and about the possibility of reinterpretation and so on, Ali ibn Abi Talib, the fourth caliph and the prophets' cousin and -- for the Shi'a, he is the first imam.  He said the Koran does not speak.  It is people who speak for the Koran.

And the point is that the Koran is a revelation to me as a Muslim, is divine to me as a Muslim.  But as soon as it enters human comprehension, it become secular.  It enters into this world to tell me how to live my life in this world.  And because every comprehension of the Koran is a human comprehension -- of course the possibility that there is more to the Koran than what humans can comprehend remains in the realm of individual religious experience. 

But collectively, socially, we are always dealing with someone's understanding of the Koran.  That makes me nervous about calling the state Islamic.  I don't believe that the state was ever Islamic.  Not a single day.  The state is a political institution.  It is incapable of having a religion.

Whenever we give the adjective of a religious state to any state, what we are saying is that, as you said rightly, it is the religion of the ruling elite.  So once you see it is not the religion of the state as such, but the religion of the ruling elite, you see how dangerous it is to permit the elite to attribute their religious belief to the state which we all share.

I would rather have it for me to negotiate what role Shari'a has in society and in the state in a framework that ensures a degree of equality of human rights, of freedom of religion and other freedoms.  And the proscription, as Professor Feldman describes, is to say the state can't have a religion, but at the same ensure freedom of religion for everybody, is a contradiction. 

The very fact that the state identifies with a religion is, by definition, a violation of freedom of religion.  And for that reason, I will try to strive to keep the state neutral, realizing it is not easy.  It's a constant struggle.  And where in the realm of politics to enable people to identify religiously as also as citizens in a variety of ways.

FELDMAN:  It would be very boring for the audience if we all agreed on everything, so I'm glad that we're hitting -- the rubber's meeting the road here a little bit. 

So I'm going to disagree, first with Abdullahi and then with Philip, if I might, and the framework for my disagreement is the same in both cases.  And it's the observation that when we use words that are big, grand words -- which I usually --

I have a 2-year-old son, and I know I'm dealing with a big, grand word when I can't point to the thing when I define it.  Right?  If he wants to know what a chair is, I can point to the chair.  If he wants to know what religion is, I can't point to anything in particular.  The same is true of the state.  I can't point to anyone; there's nothing I -- these are true abstractions, right?

When we talk about abstractions, which we have to do because much of our world is shaped out of these abstractions, we're never defining them in some way that is objectively correct.  We're always injecting into what we say the way we think they should be.

When we say, "religion is," what we mean is religion is and should be.  The same is true when we talk about the state.  They're just two, the two that happen to be in play in this conversation.

Now, when we talk about can there be such a thing as an Islamic state, I understand that argument, the political and religious argument that says no, there can be no such thing as an Islamic state because Islam is a faith and the state is not a faith.  There can be the religion of the people who run the state.

But if all of the people who run the state and organize the institutions of the state say that their state is religious -- right? -- if they assert this and if they have institutions that exist in the real world that they administer according to these ideas, if there are certain people who are in charge of deciding on this aspect of the expenditure of funds with regard to religion, and this group of people who are in charge of that aspect of making sure that -- I don't know -- as in Saudi Arabia, that people attend the mosque.  You know, if you're in the marketplace and prayer time comes in Saudi Arabia, someone comes along and urges you to attend the mosque.  And if notice that you're not a Muslim, then they say oh, sorry -- you know? -- not you.

But if you have people these sorts of things, then it's practically useful to be able to say that you're speaking in the context of an Islamic state, and that's all I need, I think, for me to be able to say that people may speak of themselves as having an Islamic state.

Now, is there a certain contradiction between that and the idea that some citizens would nevertheless be free to exercise their religious rights? And here I'm going to turn to Philip.  So this is the point that Abdullahi made.  There is a contradiction here.

I agree that there's some tension, because if all the people who run the state are saying this is an Islamic state, the person who's a non-Muslim may feel marginal, may have the experience of feeling like, well, wait a minute.  It's not my state.  I don't fully participate in that state.  Right?  And I agree that that can be a subjective experience that the person will have -- will be likely to have.

If, however, they have that feeling, I don't think it follows from that that they are not free to act in the realm of their own religion.  They might not be free.  You might have a great tendency to take away their rights, but it doesn't necessarily follow, I don't think, that they are not free to act in the realm of their own religion. 

And let me just give a practical example of why this so, and here I'll turn to -- my disagreement -- this is apart of where Philip and I disagree.  Although I think Philip and I often agree on the bottom line, we almost always disagree completely about how to get there.  (Laughter.)

So if you look at the Protestant tradition of the separation of church and state, which Philip has done so much to elucidate, it begins with the idea that the state does have a religion, but that that religion demands equal liberty and free choice of religion for each of its citizens.  Right?  Now, not everyone in the Protestant tradition says this, but let's just take Locke, whom Philip mentioned, who for Americans, at least, is the most influential thinker about the relationship between religion and government, I would argue.  

Locke, in his famous letter on toleration, does say that there's no such thing under the gospels as a Christian commonwealth.  He thinks there was a Jewish commonwealth under the Hebrew Bible, but that because of Christian liberty, there's no such thing as a truly Christian commonwealth.  So actually he agrees with Abdullahi on that point.

But he's imagining that the Church of England will remain the established church, and he is imagining that government money and church money will be fully intertwined.  But he thinks that his own religion, which is the religion of the state, in effect, itself demands -- and he makes a religious argument for this -- itself demands that each person be left free to choose his own religion, because the religion wants free choice of faith, and not coerced choice of faith.

Now, does that make separation of church and state a Protestant idea?  In some sense, yeah.  Yes, it does, in America.  And once you see that it's a Protestant idea, it's impossible to disentangle it from a long strain of anti-Catholicism in English-speaking Protestantism.  And so when you look at the historical materials, as Philip does very well in his very important book on this subject, you see, and what do you know -- the same people who were advocating religious liberty are also not in favor of the Catholic Church -- which, they note, as late as the 1860s and '70s says that, quote, "Liberty of conscience is a delirimentum."  Walter's Latin is better than mine, but it's nothing good to say that something is -- it's a, you know, a false imagining.  Something that you ought not to believe.  Right? 

So there's an actual disagreement there on whether the liberty of conscience is in fact an important value -- and, of course, the Catholic Church has changed its view on this radically since that time, and that's wonderful.  But the fact is that once you acknowledge in a historical sense that there is something distinctively Protestant about this development of separation of church and state, you find all the nasty stuff, too.  But that's okay -- and this is where Philip and I disagree.

You find the nasty stuff -- and he's right that it's there, but that doesn't trouble me very much, because all traditions of thought, whether they're religious, secular, or otherwise, have this nasty stuff caught up in it.  So when I read the new atheists, as they are -- they're sometimes called, you know, these writers who get so much attention these days who are, in fact, amazingly similar to the atheists of the 1870s and '80s. 

I mean, in fact, almost all of the arguments, with only a few exceptions, can already be found in those earlier texts.  So once a century they get their chance to really, you know -- (laughter) -- flex and stretch their muscles, and that's probably a good thing.  They're focusing on nasty things that religion has done, and it's almost never the case that they're wrong.  The nasty things they say religion has done, it has done.  But so has every other ideology. 

I'll leave it there.

AN-NA'IM:  Can I --

MEAD:  Sure.

AN-NA'IM:  I'm saying just about the -- because when you say when all the Muslims of a country say that we want our -- or say to me -- Muslims never agree on anything -- never agree.  But the day the prophet died, and before he was buried, Muslims disagreed about how to succeed and who to succeed.  So disagreements have been -- (inaudible) -- you will never agree and you will always disagree, and it's only God in the next life who will adjudicate your differences among you; several verses to this extent.

So the point is that my problem with a -- Islamic state is that what does Islamic mean?  When we cannot agree on what Islamic means, using the term is confusing; in fact, dangerous, because it hides all the nasty stuff that he was talking about behind this veneer of Islamic, so that it becomes harder to challenge it.

He gives an example of Saudi Arabia.  In Saudi Arabia, there is a significant minority of Shi'a in eastern Arabia.  I don't like to say Saudi Arabia.  I like to say Arabia.  How can you name a country after a family?  In Arabia, there is significant Shi'a in the east to whom the Wahhabi doctrine of the state is a heresy, and they are obliged to live under this heresy as the law of the state.

And when you see that Iran is an Islamic state and Saudi Arabia is an Islamic state, what will it mean when, to each of them, the other is a heresy?  So the term Islamic becomes totally incoherent.  You know, as you travel in the region, you will find that people call Islamic law -- Islamic sort of -- (inaudible) -- the term is overused that there is no thought as to exactly what we mean by it.  And when we look closely to what we mean by it, we see that no Muslims of any country will agree on what their state is when they call it an Islamic state.

All of this is to be in the realm of politics.  And that's why I will say let people affirm their Islamic identity and values through politics, but not through a state institutions, which is what I need to have for it to be possible for me to negotiate Shari'a in politics.

MEAD:  Philip.

PHILIP HAMBURGER:  I'm not learned enough to take a position on Islamic law such as Professor An-Na'im just did, but in defense of -- of his position against Professor Feldman's, I must say I fear that Professor Feldman, in defense of his view that there should be possibly should admit there to be an Islamic state, looks to Europe to say, "Well, there are Christian states there."  And it strikes me that, at least in the Anglo-American tradition, which is the freer part of the European tradition, that's not so clear.

So, yes, there would have been a social establishment of Christianity, particularly Anglicanism in England.  And, yes, the monarch is the head of the English church, but if one looks at the theological and political writings of the late 17th century and early 18th century, defending Anglican establishments, the writings that Americans look to and understand, the argument isn't the state is religious, let alone that it's Protestant, let alone that it's Anglican, but rather that there's an alliance between church and state.

So even in the English church's own writings, it's not asserted that there's an Anglican church -- I'm sorry -- an Anglican state, except in the strongest -- (inaudible) -- Tory writings.  In the mainstream English writings, for example, by Bishop Warburton is about an alliance of church and state, in which he does very interesting Madisonian-style reasons.  And so it's really, I think, much more cautious.  So I don't think we can look to Europe and say, "Well, that's what the Europeans did.  Therefore, we should be comfortable with a religious state elsewhere."

I'd also like to disagree, much as I appreciate Professor Feldman's views on this, with his casual use of separation of church and state, as if that is what we're talking about when we talk about disestablishment.  Disestablishment and separation are very different metaphors.  Establishment is about one object elevating another, and therefore it's about a restraint on the government elevating the church.  Separation of church and state, which we think of horizontally, it's about keeping apart two institutions, and necessarily it limits both.  And instead of talking about religion generally, it focuses on organized religion rather than individual spirituality.

So it seems to me, yes, a lot of violence has been pursued in this country even in the name of separation of church and state, as well as in the name of religion.  But that's not our ideal.  Our ideal is actually quite carefully drafted in the Constitution.  It's about disestablishment.

And then, finally, I can't help talking about violence, since that's what lies behind so much of this, right?  We're not talking about violence -- "Let's have some fun" -- because violence has its fun aspect, unfortunately; we're human, and we indulge in it occasionally.  So if it looks back, as the Supreme Court likes to do, they'll say, "Oh, we have to be careful of divisiveness and religious violence," and they allude to Europe, particularly the happy years of the 16th and 17th century when there was a lot of violence.

It's by no means clear that religion has a monopoly on this.  In fact, religion turned out to be rather inefficient.  The Inquisition only killed a few thousand people.  What were they up to?  Their mind was on God, not on the efficiency of killing.  And it strikes me that the secular state in the past century has really done a much better job of it, if you're into that sort of thing, which gets to the larger set of issues, I think, here that we haven't yet discussed, the relationship, as it were, social structures, if we include religion amongst these.

So let's not talk about religion.  I agree with Professor Feldman about this.  It's an amorphous concept.  Let's think just for a minute; not say this is what religion really is, but about unrealistic aspirations for purity and transcendence.

Now, if that is part of the human condition, how should it be pursued, with unrealistic aspirations for purity and transcendence in this world or another world?  And which is more dangerous?  I don't know that I know the answer.  But it's by no means clear to me that pursuing those unrealistic aspirations in another world is more dangerous than in this world.  And I think, sadly, the comparisons to the Soviet Union and the proceedings of the 16th Century illustrate that.

MEAD:  All right.  Boy, well, you certainly know how to bring the fun into a gathering.  (Laughter.)

HAMBURGER:  I don't like violence myself, but it's fun to talk about.

MEAD:  All right.  Well, I think, speaking of fun, maybe it's time to give the audience some and open this up for questions.  Again, I'd like to remind you that a question is a statement which can be grammatically ended with a question mark.  (Laughter.)  One can usually tell one's being asked a question by sort of a rising inflection that comes at the end of the sentence.  And questions are, generally speaking, rather short.

So if anybody has questions, please raise your hand.  We'll bring a microphone to you.  State your name and your affiliation for the sake of those watching by video.

QUESTIONER:  Charles Harper, John Templeton Foundation.

I want to state a thesis as a question for all of you.  Do you think that strategically, for the Council on Foreign Relations and the United States generally, that this issue for intellectuals of clarifying the difference in religion between a situation before and after an American-style politic -- constitutionally of the separation of state power from religious culture, do you see that as something that's vital for American intellectuals to engage with in the world to clarify what the American experiment and experience has been?

MEAD:  So if I rephrase that, gentlemen, does your life's work have any meaning or purpose?  (Laughter.)  Anybody want to jump in there?

FELDMAN:  One think that I think is fair to say is that, though it's obviously crucially important in the American realm for us to understand what we're doing ourselves domestically, we shouldn't draw the conclusion from that that once we've figured it out, then we'll have something we can hold their hands and export.

I mean, one of the weirdest experiences of my life was sitting in the Green Zone and hearing U.S. government officials, who were aligned with the political movement of deeply skeptical of, for example, the idea of a secular state -- we don't have a secular state here -- saying things like, "The most important thing we have to keep in mind for the new Iraq is that there must be a strictly secular state."

First of all, it bespoke a willingness to sort of imagine something on the U.S. side that they themselves denied exists on the U.S. side.  But second of all, it bespoke this idea that they knew exactly what we had in the United States and we should export that.

So I want to (exploit ?) all of that -- (inaudible).  I think the other panelists do too.  We do want to understand what we have here.  We want to understand the fights that we still have in the United States, the lack of clarity that we have.  And then we want to realize that whatever the lack of -- (inaudible) -- that we have is, that's probably not the suitable thing to impose on anybody else.  At least that's my own view.

MEAD:  They should have their own lack of clarity.

FELDMAN:  Exactly.  They should have their own version of confusion.

And this is the last thing I would say.  I mean, a constitutional tradition that works is one that is in a constant state of dynamic evolution.  You have a written constitution that says "x," but no constitutional system works if it just follows what's in that written constitution and never changes.  Interpretation gives it the freedom to change.  And if it doesn't even have a text, so much the better, often, because then you have a little bit more freedom for the dynamism.

So everyone's going to have some complex dynamic unresolved form of the relationship between religion and government, but they shouldn't all have the same confusion.

MEAD:   Abdullahi, do you want to --

AN-NA'IM:  I was going to -- I am from Sudan.  At this point I am an American citizen, but I am from Sudan and am formed by being from Sudan.  And one term or concept, idea that has not really been raised much is colonialism.  Much of what we see is post-colonialism, that it is more informed by colonialism than it is by anything else about Muslim societies and their history.

The Islamic state discourse is a post-colonial discourse, because one position that we have not clarified, what do we mean by the state?  The form of state -- the type of state that we now live with is a European model of the state.  And the idea of law that Muslims -- when Muslims talk about an Islamic state before Shari'a, they think of it as Shari'a as positive law; European idea of law, European idea of the state.

So it's a contradiction, I think, to claim to affirm Islamic identity through two European institutions, the state and law.  The type of state that Muslims lived with historically is a very different type of state than the state they are living with now in the post-colonial.

Now, coming to the American, also one question.  Iraq was mentioned a couple of times.  But the fact is that Iraq has been a colonial experience; that is, the United States has colonized and is still colonizing Iraq.  Iraq is not a sovereign state now, as we speak.  And probably in my book, the biggest moral failure of the United States since the Second World War has been the invasion, occupation and colonization of Iraq.

And this event, if we can call it an event, has done sort of horrendous consequences for decades to come and outraged, completely outraged, that we can talk about it as if it is something that happened and, okay, we'll just now deal with the consequences.  No, it has to be condemned for having happened in the first place.  And thus, having had to be condemned for having done it, now the impulse is the Americans go out in the world to engage in conversation about the American experience -- absolutely fine, wonderful.  In fact, we do this all the time.

I studied constitutional law with an American professor in the 1960s in Sudan, and I learned a lot from him.  And I continue to learn from my American experience.  But if you send your armies to missionize for your view of what freedom of religion is and what church and state is, that's completely unacceptable and utterly counterproductive.

FELDMAN:  Just for the record, I mean, we did invade Iraq; there's no question.  And there's no question, further, that our presence there has features that are in common with colonialism, or with imperialism maybe more precisely.  But if you look at the constitutional structure that emerged in Iraq, it has nothing to do with the U.S. constitutional structure.  I mean, for better or worse, it makes Iraq an Islamic state and says that no law passed may violate the judgments of Islam.  I mean, it says that when it comes to family law -- I mean, you can say these are terrible things.  I think you do think they're terrible things.  But whatever they are, they're not American things.

AN-NA'IM:  No, but the fact is that it was drafted during an American occupation, that the people of Iraq -- I mean, the question is also Britain colonized Sudan and Uganda and Kenya; I mean, most of African states.  And it was -- and the French did it too.  At the end of the colonial period, they drafted a constitution in Lancaster House in England for the new state to just go on and become independent and sovereign as of today, because we have made you sovereign.

When our secretary of State sends a letter to the government of Iraq to say that "We have your sovereignty for a year.  Here, have it back.  But we will keep 150,000 troops heavily armed under foreign command who will protect you from your own population, but you are a sovereign state."  The constitution of Iraq has not happened.  And the fact that you have a document called the constitution of Iraq is not and does not make it the constitution of Iraq.

You know, constitutions are not made in documents.  Constitutions are hearts and minds of people.  And until the people of Iraq have the freedom and the stability and the ability to draft their own constitution completely free, without any foreign advisers, without technocrats telling them how to draft this or how to work it out or not work it out, it is not a constitution.

MEAD:  Well, I think -- let's try to -- points taken, but let's try to keep this on the broader agenda of responding, I think, to the question of, you know, the validity -- sort of the importance for American foreign policy of trying to understand this issue of religious --

HAMBURGER:  I do want to get back to the original question.  I just cannot help engaging a little bit on this point.

MEAD:  Please don't.  (Laughter.)

HAMBURGER:  One sentence.  It's simply that if one takes everything that Professor An-Na'im just said as true, it just does strike me that we won't have to worry that the colonial discourse tends to lead us only to look at some tragedies and not others.  And I think if one's really to be concerned about the people of any nation in this world, as a human being, one has to recognize disasters can happen from any direction, including from within, and that's certainly been the case with Iraq.

Now, getting back to the question, though, it strikes me that, yes, we do need to be engaging.  I almost agreed with Noah there until he went on about the living constitution, and then I had to back -- can't win 'em all.  It strikes me that we have had a remarkable experience here, perhaps just by accident.  None of us in this room, I think, can take credit for it, but we have lived in a genuinely blessed country in a blessed period of time where it is just not normal in human experience to have what we have in the United States.

And by whatever grace that is, I think it is worth talking about.  It's worth talking about with all the caution that my colleagues have mentioned, because we don't know which elements are essential, and there's a danger we will misstate it, so we need to be very modest about it.  And it may be that we should not impose this; that's surely true.  And yet, at the same time, just to show the model of living, a Lutheran pastor once explained to me how he reached his congregation, and he said to me, "I don't have a congregation; I just try to live right, and people notice that."

And we can take the same approach.  But I think, at the same time, one can't just live right.  One has to talk about it.  And, yes, we need to be engaged with a sense of prudence, with a sense of the diversity of the world, but sharing at least the model so that people can adapt from it what I think they will undoubtedly find deeply attractive.  And frankly, people across the world do.

MEAD:  And I would probably add, from the standpoint of the Council on Foreign Relations, or at least some of us here, we think that certainly since September 11th, but a lot of events before that, have raised the importance of trying to get a clearer understanding in the U.S. of how our own traditions have evolved in this respect and then trying to understand better where those do and don't intersect with the experiences of other societies and what usefully can we do to try to advance some of the universal values that Noah was talking about in these very different contexts.

Sir.

QUESTIONER:  Jim Dingman, INN World Report.

When one travels to Europe, one's constantly confronted with the question of "What are you Americans doing letting these fundamentalist Christians dominate your foreign policy?"  All the time last fall, I got that continually.  And we know that operationally that influence has been realized in the HIV-AIDS policy of Bush's administration in Africa.

And I wanted to get your take on that and also how people in Europe are perceiving how religion is in the election process.  For example, we've had three weeks of Jeremiah Wright being thrown at us, and that has, of course, been perceived differently in Europe than in the United States.  I wanted to know how you see those things.

FELDMAN:  We're on the record, right?

MEAD:  No, go right ahead; sounds like you're itching to go.

FELDMAN:  Well, I mean, look, on the first point I would say welcome to participatory democracy.  There are all these foreign policy elites; some of them may be in this room.  Some of the people who helped create this room, who think that it might not be such a good idea for the general democratic population -- here I mean democratic, not a small "r" republican -- to be involved in foreign policymaking, right, because they think, "Wow, what happens when that happens is that all those people out there have these views that we elites don't agree with will impact our foreign policy -- yuk."

Now, you know, one of the costs of the democratization of foreign policy in the last 115 years, which is itself in part of a very complicated story that Walter has told part of very brilliantly of post-Cold War changes in the way foreign policy is shaped, one of the consequences of this democratization of foreign policy debates is that constituencies that historically didn't do that much or weren't able to do that much to affect our foreign policy now can and do.

I think that in many particular cases -- the one you mentioned is a good one -- I don't agree with what that particular constituency wants our foreign policy to be.  But I completely disagree that it somehow follows from that that public voices should be excluded from our foreign policy judgments.  I think if you're serious about being a democracy, you need to acknowledge that.

And when you make your foreign policy, you have to think seriously about the fact that that foreign policy is now going to be shaped in the long run by what the general public believes.  I think that's got to be now part of the foreign policy calculus.  When you decide to do something, you can't think, for example, that the next administration, even if it's of a different party, will do just what you expect it to do.  That's a mistake, I think, now in foreign policy, where then maybe it wasn't the case in certain aspects of the Cold War.  So that's on the first half of the question, and I'll leave Jeremiah Wright to my colleagues.

HAMBURGER:  I just want to comment on the notion of fundamentalists anywhere.  Who are the fundamentalists, right?  Fundamentalists are a small group that are more generally known as evangelicals.  The number of fundamentalists in this country who were actually traditional fundamentalists are tiny.  I mean, how many premillenarian literalists are there in this country?  That's not most evangelicals.

And so when people criticize fundamentalists, they're revealing a certain theological ignorance, I fear.  And what particularly worries me is that this is a theologically (inflected ?) term.  This is saying some people believe in fundamentals.  In other words, they believe in orthodoxies.  We are theologically liberal.  The implication is, "And we don't have orthodoxies."  And somehow this gets into class distinctions, too -- the educated versus uneducated and the rest.  And so I think we have to be very careful with labels.  Most evangelicals are highly individualistic.  Most of them are not fundamentalist in the traditional term.

And just a final thought here.  Since I am interested so much in the bullying of religious minorities, we would not ordinarily take the label for a small minority and treat that as a label for some sort of social ill or theological ill.  You know, if you're worried about some sort of habit that you associate with a particular religion, you wouldn't say, "How Protestant of you.  How Catholic of you.  How Islamic of you.  How Jewish of you."  We think how prejudiced that would be.  But we don't hesitate to say, "Gee, that's very fundamentalist," and we're not even talking about fundamentalists.  We're using minority label.

And so I just feel a lot of these criticisms don't even understand the theologies involved.  Now, it may be right, as Noah points out.  Perhaps we might disagree with the policies.  But that's a different issue altogether.

MEAD:  Yes.

QUESTIONER:  (Inaudible.)

MEAD:  I have a feeling we'll come back to Jeremiah Wright.

QUESTIONER:  I'm definitely not Jeremiah --

MEAD:  He'll take care of himself.

QUESTIONER:  Thank you.

I'd like to ask you to express an opinion.  Mr. Ratzinger, who has chosen the name of Pope Benedict XVI --

MEAD:  Are you a Protestant, by any chance?

QUESTIONER:  There's a chance.  There's a chance.  I'd like to ask you to comment on this too.  And I know you're the fair-minded moderator here.  I will not try to quote him, because he did it in Latin and my Latin is not that good.  But he said at one point here three or four months something to the effect that he would support the building of mosques in Rome when the Saudi government permitted the building of churches in Riyadh.  Would you comment on that?

AN-NA'IM:  There is so much more to the Muslim world than Saudi Arabia.

QUESTIONER:  (Off mike.)

AN-NA'IM:  (Laughs.)  Because he said Riyadh, so -- at least to be clear.  I made my point about the family and the country.  But now what I'm saying is this.  I noticed also this morning already that there is so much focus on the Middle East as if it is representative of the Muslim world at large.

The Arab Muslim region is about 10 (percent) to 12 percent of the total Muslim population -- 10 (percent) to 12 percent.  There are more Muslims in sub-Saharan Africa than there are Muslims in the Middle East.  There are -- India is the second-largest Muslim country in the world, or third, probably, when you compare it to Pakistan.

The point is that so much Muslims and Islam historically, as well as currently, are not anything to do with the Middle East; in fact, quite different, very much different, that -- so that I think for the pope's remark, I think it is unfair to sort of prejudge Muslims' attitudes about churches and Christian-Muslim relations and so on by what goes on in Arabia or Saudi Arabia, as your choice.

In that sense, the point is that also, I would say, I would hope that a pope would be more visionary and more leading the Christians than this tit-for-tat attitude.  He should say that "I would support building a mosque in Rome regardless of what" -- because he should be driven by his own religious conviction as a Christian, not by what -- and this is exactly what Muslims are doing now when they are (ranting ?) against the United States and condemning everything that's good about this country because they hate some aspects of the foreign policy of this country.

What the United States does or does not do should not define what I do or not do and my right as a Muslim.  And I would hope that the pope would think "What does my religious conviction as a Christian leader lead me to do about mosques in Rome?" rather than being defined by what Muslim leaders do or prefer to do in other countries.

MEAD:  I suppose the king of Saudi Arabia might also reply, "We'll separate mosque from state in Saudi Arabia when you do it in the Vatican, your holiness," and see what he gets.

QUESTIONER:  Hi.  Assam Rehman (sp), Muslim Bar Association of New York.

Just to take advantage of the fact that we have three law professors, I wanted to ask your opinion on the role of religious judicial bodies.  This is something that was discussed earlier this morning, but perhaps each of you can comment, because, for example, Professor An-Na'im, you talked about keeping religion out of the institutions.  How does that concept inform the existence of a judicial body or even a scholar who is empowered by the state to adjudicate matters?  Professor Feldman, you wrote about this recently.  I'd like to get your views as legal experts on that matter.

(Off mike commentary.) 

AN-NA'IM:  Okay.  You might be surprised, but I am opposed to what the archbishop has proposed.  I think it is bad for the state institutions to enforce religious adjudication.  Religious adjudication and other types of adjudication happen all the time.  And we can never stop it, and, in fact, we can encourage it.

My objection comes when you involve a state institution in enforcing the outcome of -- (inaudible) -- our situation.  If it is freely chosen by the parties, you can have types of issues where that happens outside the state institutions, and it will happen outside the state institutions, and it is good that it happens.

But implicating the state institutions into enforcing religious adjudication is dangerous for the state and for the religion.  Now, one point is that when -- say, if you have a Shari'a-based arbitrational family dispute in Britain go before English courts to enforce, is the court going to review only the procedural aspects, or is it going to review the substantive aspects?  Or is it going to enforce based on the authority of those who adjudicate it without questioning looking into what really went on and what are the issues?

Now, is an English court competent in Shari'a to be able to review adjudication outcomes?  If it is not, is it going to enforce an adjudication that it has no way of evaluating in terms of its good or bad nature, and so on?  Now, the point is that the realm of community life are very much -- I think my sense of separation of church and state, as you said, is protecting the state from religion and religion from the state.  And in that light, I would be opposed to enforcement of religious education.

Now, another point to add; I don't know how much time -- time, of course, is short.  The thing is, what is the Shari'a authorization for this selectivity, because if what you are doing is enforcing Shari'a, Shari'a has a lot to say on everything.  How come that you choose this particular limited issue and exclude all other issues on which Shari'a is as authoritative as it is on this issue?

In the sort of Ontario case, the same proposal was made in Ontario.  And the proposal was made excluding custody-of-children issues.  Because custody of children is a federal jurisdiction, so they were saying in Ontario, "Let us do it in other issues, not with custody of children."  How can you deal with a family dispute without including custody-of-children issues as a factor simply because the state structure is such that this is outside the realm of the provincial?  That is the sort of confusion that is bound to come through if you try to do this sort of thing.

HAMBURGER:  If I could just add a word here, for 480 years the law of the land has had complete obligation, within the jurisdiction of the common-law nations.  There is no room for a distinct jurisdiction independent of it.  And although in England church courts can be authorized by the state, it's always under their complete authority of the law of the land.  And that's just fundamental.  That's why our constitution refers to the supreme law of the land. 

And I agree with Professor An-Na'im.  It's very, very dangerous to start breaking that down.  That can go in a lot of different directions.  This was the split between the Catholic Church in England in the 1530s, and there's just nothing as fundamental as the complete force of the law of the land in jurisdiction.  And we're familiar with this in many areas, in questions of race, questions of religion and so forth.

There is some room for contractual arrangements by which individuals put themselves into someone else's judgment, be it religious or commercial, right?  But the secular courts must always have competence to decide the matter ultimately.  And to inquire, which is genuinely voluntary, there's potential for this to go in a very dangerous direction, and not, incidentally, to the advantage of Muslims.

FELDMAN:  Here I disagree with my colleagues.  To me, this question comes under the general category of things you could do differently in different countries, provided that basic human rights are respected.  And I would note that in his pretty tentative speech, if you actually read it, which obviously very few people have done -- in this room I'm sure many have, but in the world, very few people have done -- the archbishop of Canterbury spoke of, first of all -- the background assumption of the talk was that, of course, the laws of the state would ultimately be the ones that authorized the local court -- the arbitral body, and that the state law would be the supreme law of the land.  He was very explicit in this respect, and he also said very explicitly that equality of men and women would have to be respected, that that would trump any particular Islamic principles, and so forth and so on.

Now, I think it's worth noting the difference in approach -- and this goes back to the previous question -- between Pope Benedict and the archbishop of Canterbury because they both lead -- once much larger, but they both lead big Christian denominations -- when it comes to dealing with the question of Islam.  Pope Benedict's verbal practice thus far and his experience have been to be, let's say, on occasion sharply negative about aspects of Islam.  That has brought him a lot of opposition in the Muslim world, but it's been pretty good for him as a sort of political move within Europe.  I think it's fair to say that he has strengthened himself within Europe as a result.  An interesting strategy on his part, especially given that he has said explicitly when he became pope that one of the dangers for the church is becoming irrelevant in Europe.  So it turns out that being sharply negative about Islam is a very effective technique for making yourself a player in the contemporary European environment.

The archbishop of Canterbury --

(Cross talk.)

MEAD:  -- could maybe take a lead --

FELDMAN:  -- yeah, it's interesting.  Yeah.

The archbishop of Canterbury, by contrast, gave this very tentative and scholarly lecture in a pretty academic environment and all hell broke loose.  You know?  I mean, they were calling for his resignation.  And you know, he's been handling some pretty sensitive matters over the last couple of years that -- the Anglican community is not without its difficulties, as we know -- but nobody, as far as I know, has made as open, as loud, as angry a set of calls for his resignation as came over this one speech.  So there's an important lesson there about the political climate in Europe right now.  Say anything that might be construed as in some way -- and the archbishop was very explicit -- he was trying to experimentally think of ways to reach out to the Muslim community in England to make it feel fully a part, and you can think that that's a mistake; you can think it's wrong -- but the spirit of the speech I think is pretty clear, and look at the consequences. 

MEAD:  Okay.  We have a question from one of our very patient webcast viewers that I'd like to interject here.  This is from Rene Lape (sp) at Friends Academy, who asked, "Regarding the relationship between Christian believers in the United States and the state, when it comes to issue such as the prohibition we have always had on men having more than one wife, a rule strictly related, it seems, to our identity as a Christian nation, how do you see the role of the state in defining the nature of marriage -- whether we're speaking of same-sex marriage or monogamous marriages?" 

So, I guess behind that is the notion that religious presuppositions inform the approach of the state to such basic matters of family life -- is this appropriate? 

MR.     :  (Off mike.)  (Laughter.)

AN-NA'IM:  I'll try briefly.  I think it is legitimate that every society's legal order -- codes of family law included -- would reflect its values, its culture, its religious beliefs included in that.  But the point is that certain -- as it is enacted as law by virtue of the will of the state and not by virtue religious authority.  So monogamous marriage is now part of the -- of course we are clear, all of us, that the origin or the underpinnings of this are Christian or particularly at least some interpretation of Christian dogma, but the point is that it is family law by virtue of the will of the state, not by virtue of divine command.

If that is the case, then it can be changed, too.  Not that we are going to have polygamous marriages, but the point is that we are dealing with the secular world.  My view is that in Islamic-majority countries, family law also should be secular law and should be seen as such; that you have a family court.  If the peoples are Muslims, their values will be reflected in that court, but there is no confusion that what the law is is the rule of the state and not the religious commands according to some interpretations of it. 

So, in that sense, we can have polygamous marriage or not have this divorce or that divorce -- all of it as secular law so we can change it.  But once we say, "This is Shari'a," then what can we do about it?

MEAD:  So in some countries one can have multiple wives; in this country we have multiple conceptions of marriage.  But these come from the democratic system of politics.  And underlying this and the prior question really is the matter of women's rights.  Right?  To what -- whether we're talking about polygamy or we're talking about Shari'a is introduced as a set of -- a subpart of the legal system as to family matters, the concern that I think many people rightfully will have is what will happen to the woman as an individual?  Will her rights be fully respected?  And to what extent will her freedom remain under such a system?  And given the role of the equality of women generally one might say in the development of the set of political systems and freedoms that we appreciate -- and it's been a central part, frankly -- women's rights have been a central part of the movement against slavery in this country and in changing our polity I think in ways that are on the whole rather wholesome.  We ought to be very, very careful about inviting what might become instruments of undermining this.  In fact, if there's anything we can do for the rest of the world, it will be to remind the rest of the world that in fact half the population -- many parts -- are excluded from full participation as citizens.  And, to put it mildly, that's a shame.

Yes, in the back?

QUESTIONER:  Yes.  Eric Gregory from Princeton University.  I'm an academic, so you'll forgive me if I worry this is getting to concrete.  I'm going to ask an abstract question, and it was provoked by Professor Hamburger.  I think as a matter of intellectual history, the concept of the secular and even human rights and even the separation of church and state have their soil in theological and religious sources.  And you said that we would be impoverished today without those religious motivations to regard people as equal, et cetera.  Do you want to go further and say they're actually necessary and required?  And I wasn't sure if you meant that as a philosophical argument, as a sociological argument or as a historical argument.  Can we tick away the God talk as long as we have the constitutional practices and democratic republican institutions, or is religion necessary for the defense of human rights?  It's the question about Locke, really. 

HAMBURGER:  Yeah.  It's a good question.  It's an -- I don't know the answer, and I fear that we're living through an interesting experiment.  We won't know probably for a little while -- I hope not to live long enough to find out.  But this is the division between America and Europe, right?  And if we think -- I don't think America has ever really been the same as Europe, but there are some commonalities.  And if one looks at the fate of Europe and the fate of the United States, we each have our problems, but their problems may turn out to be more fundamental precisely because they place such a burden on their mere humanity, and that is more than most societies have survived.

I don't want to suggest that nothing -- you know, it isn't possible.  That would be going too far, right?  We have no evidence for that.  But if one looks across history -- and of course, we only have a few thousand years of detailed evidence -- but if one looks across history, it's difficult to find a society which really gets very far, survives very long without some outside source to define and give stability to what we loosely call -- politely call "values," right, but which actually have to be a little bit more magnetic than that.  So I don't really know, but I'm -- although personally an optimist, professionally I'm a pessimist.  (Laughter.)

MEAD:  Yes?  Wait for the microphone.

QUESTIONER:  Paul de Vries with New York Divinity School.  I'm also on the board of the National Association of Evangelicals.  It puzzles us that we've had such a giant influence on foreign policy.  We look at many of our attempts to affect foreign policy in terms of restricting sex trade, nonviolent conflict resolution, creation care, environmental issues to be part of foreign policy and so forth.  And perhaps the -- (inaudible) -- list several more, perhaps the only success was the AIDS program that Bush pushed in Africa. 

But I guess the question -- we represent directly 20 million evangelicals, and indirectly probably equal number.  What can we do to wake up Washington to what we see as the eternal values?

MEAD:  How can evangelicals get more political influence?  (Laughter.)  Who wants to answer that?

FELDMAN:  I'll say something about at least the first part of the question -- how it's a surprise.  It's sometimes a surprise where one has influence and where one doesn't have influence. 

I think one of the key rules of American foreign policy is that if you pick an issue that nobody really feels strongly on the other side of, or at least where the opposition to you is not well organized and where no really fundamental national security interest is on the other side, that's where you're likely, in the first instance, to have a lot of impact.  Right?  I mean, this is a key point in understanding the role of the pro-Israel lobby -- both the Jewish pro-Israel lobby and the evangelical pro-Israel lobby.  Walter has written recently in an interesting review of Mearsheimer and Walt's book about this phenomenon.  It helps if you're advocating for something and no one is very organized in advocating on the other side of that issue.

In terms of how, though, one has an effect or a group of concerned citizens have a big effect where the national security interest doesn't obviously align with what they're pushing for or where there are other strong interests -- especially corporate interests -- on the other side, there the thing about our republican democracy is that the push really has to happen at the level of individual congresspeople.  I mean, that really is the way it works.  And although, for example, we speak of the tremendous corporate impact on our politics, which is enormous, that is accomplished via the mechanism of targeted support for particular representatives and senators.  That's our version of what we don't consider to be corruption.  I mean, at the margins it can become corrupt, but the American approach for better or for worse is to say money has a huge impact, so let's create a legal channel for money to have its influence so that it doesn't have its influence through non-legal channels. 

That may be a terrible mistake -- and again here, the European example is an interesting contrast where there's at least in many places in Europe a serious attempt to avoid the influence of money in politics, and yet there doesn't seem to be the kind of corruption that one sees in some other places.  That's an interesting contrast, and especially whether we could achieve that is I think the central question and the question of campaign finance reform. 

But that's really my view:  You do it by identifying particular people who are vulnerable and trying to get them elected or not elected. 

MEAD:  Okay.  We have time I think for one more question.

QUESTIONER:  I'm Sayed (sp).  Once again, I just wanted to make a brief observation in terms of open societies.  If both religion and the secular-minded groups are so much strongly in favor of open society, what is it that makes this a difficult thing to be realized?  Are we not looking at the moral aspect of it, or is there something else?  Thank you.

HAMBURGER:  Well, if I may, I feel that too often both secular attitudes and religion are used, right?  In the particularly in the democratic style government, religion is used to mobilize passions -- sometimes for good; sometimes for evil -- and so too, fears of religion.  And so it may be that the civilized conversation we can have here is not easily replicated out there simply because of the nature of politics, getting people mobilized, the way that Noah suggested.  So it may be something we just have to live with, which would be sad, but I don't have a solution. 

FELDMAN:  I think part of it has to do with the way that in politics no one is ever satisfied with just winning a particular debate.  If you can win a debate, you then want to move the goalposts to increase your chances of winning the next debate.  And I think that's where the real potential for conflict actually happens.  It's not just -- I mean, there's of course conflict if two different groups see an issue differently and they argue about it and they're each trying to lobby their congressman to get certain results and one wins and the other loses -- yeah, that's ordinary political fighting.  But rarely do they stop there. 

So we have constitutional politics, for example, where secularists -- legal secularists, as I sometimes call them, argue that religion should not be allowed into public discourse and then try to create constitutional rules that will make it harder -- will raise the barrier for religious folks to participate in that debate. 

And on the other side, you might have situations where people you might call "values evangelicals" -- I don't mean literally just evangelicals but people who evangelize for values -- also want to change the constitutional rules so that for example, state funds can be used to sustain their institutions, which will enable them to do a better job and win more future political debates.  And that's where I think you get the really heavy fighting.  And I don't think there's any solution to that.  I mean, this is an answer to your -- to try to be a direct answer to your question of why don't we all just get along.  (Laughter.)  It's because we're all trying to harden our advantage for the next time out. 

But that's just what constitutional politics always looks like, in my view.  And the test of a successful constitutional polity is that you keep that fighting within some bounds, and usually the bounds are nonviolence.  (Laughs.)  That's a pretty good bound to aim for.

AN-NA'IM:  So, just to close by saying that I can agree with Professor Feldman.  On this one I do agree with him -- that the point is that if you're -- I mean, when, we say open or closed, these are relative terms because it is relatively closed or relatively open, and also a question of how open or how closed -- in what ways?  And those are issues on which people are going to disagree constantly and permanently. 

And disagreement is good.  Conflict is good.  And in fact conflict is creative.  That's what makes us human.  It's part of our humanness is to be in disagreement because we tend to be distinctive as who we are, and that is not going to be who he is or who the next person is.  The only point is not to be violent about it. 

So the challenge is how to create normative institutions and mechanisms whereby we can negotiate our difference without resorting to violence.  Whenever we have this, there is no end to how open and variety of ways in which you can be open. 

MEAD:  Well, we never did get back to Professor Wright, but I think you'll -- Pastor Wright, but I think you'll agree with me this was still a very successful session.  (Laughter.)  We have lunch now, and we reconvene -- (applause) -- thank you.  

AN-NA'IM:  Thank you.

####

®FC¯END

®FL¯

.STX

      (C) COPYRIGHT 2008, FEDERAL NEWS SERVICE, INC., 1000 VERMONT AVE.

NW; 5TH FLOOR; WASHINGTON, DC - 20005, USA.  ALL RIGHTS RESERVED.  ANY REPRODUCTION, REDISTRIBUTION OR RETRANSMISSION IS EXPRESSLY PROHIBITED.

      UNAUTHORIZED REPRODUCTION, REDISTRIBUTION OR RETRANSMISSION CONSTITUTES A MISAPPROPRIATION UNDER APPLICABLE UNFAIR COMPETITION LAW, AND FEDERAL NEWS SERVICE, INC. RESERVES THE RIGHT TO PURSUE ALL REMEDIES AVAILABLE TO IT IN RESPECT TO SUCH MISAPPROPRIATION.

      FEDERAL NEWS SERVICE, INC. IS A PRIVATE FIRM AND IS NOT AFFILIATED WITH THE FEDERAL GOVERNMENT.  NO COPYRIGHT IS CLAIMED AS TO ANY PART OF THE ORIGINAL WORK PREPARED BY A UNITED STATES GOVERNMENT OFFICER OR EMPLOYEE AS PART OF THAT PERSON'S OFFICIAL DUTIES.

      FOR INFORMATION ON SUBSCRIBING TO FNS, PLEASE CALL CARINA NYBERG AT 202-347-1400.

      THIS IS A RUSH TRANSCRIPT.

-------------------------

This event is part of the Religion and Foreign Policy Symposia Series, which is made possible by the generous support of the Henry Luce Foundation.

WALTER RUSSELL MEAD:  All right.  May I have your attention, please.  Would everyone please sit down?

All right.  I'd like to welcome you to the second session of our Council on Foreign Relations seminar today.  This is a symposium on Religion and the Open Society.  This is our second session, on Religion-State Relation.

I am Walter Russell Mead, senior fellow for U.S. foreign policy.  It is my honor to introduce to you Abdullahi Ahmed An-Na'im, professor of law, Emory University Law School; Noah Feldman, professor of law, Harvard Law School and adjunct senior fellow here at the Council; and Philip Hamburger, professor of law, Columbia University Law School.  Welcome.  Welcome, everyone here, and also welcome to all of those who are joining our symposium this morning on video.

I'd like to remind you all that this is an on-the-record session, so anything that you say may be taken down in evidence and used against you.  (Laughter.) 

In our second session this morning we're going to try to follow up some of the lines of conversation that were introduced in the first session and also introduce some new themes. 

As the discussion was proceeding this morning, I was rather forcefully reminded that Abrahamic religions in particular -- that is, Judaism, Christianity, and Islam -- and some of the secular ideologies that have historically derived from that mix of religious cultures are bodies of thought which believe that there is a way the world ought to work.  There's a right way to live.  And obviously, if there's a right way to live, there are wrong ways to live.

And there are universal standards of justice, of conduct, that at least in theory ought to apply to all people everywhere.  And in human societies, as a general rule, there are states -- that is, bodies of organized authority whose mandate it is to see that things are run properly.

And so in Abrahamic societies, the relationship between the religion, which teaches us how the world ought to be run, and the state, that group of people whose job it is to run the world or at least to run that portion of the world under the authority of a particular state, have a charged relationship. 

Religious authorities will often, in sermons or otherwise, tell political authorities and state authorities how they ought to work.  Religious authorities will try to shape the conscience of voters in democratic societies so that the voters will vote for politicians who espouse the values that -- by which the state ought to run.  Certainly in our society in the United States we see many efforts, particularly in an election year, in which religious leaders of various kinds are trying to shape political outcomes.

Now, our three panelists today who, I guess, represent at least a good percentage of the faiths of the family of Abraham, are scholars who have spent a lot of time investigating the relationship of religion and state -- how it actually operates and how it ought to operate.  And I think it might be useful for the audience if we proceeded maybe just right down the panel and each of you share a kind of an overview of your sense of how religion and the state ought to operate, from your own particular perspective, whether that's a faith-based perspective or a more secular approach. 

And if you would like to start, Professor?

ABDULLAHI AHMED AN-NA'IM:  Good morning, everybody, and thank you for being here. 

I speak as a Muslim, so my perspective is religious.  And it is my perspective that indicates for me that I need the state to be secular in order for me to be the Muslim I choose to be.  And the only possibility of being Muslim is by choice. 

So I stake the secular state as a prerequisite, as one of the conditions for the possibility of being Muslim.  I may not be a good Muslim -- I'm sure I'm not -- but whatever degree of being Muslim it is, it has to be within a framework of a secular state.

But I make a distinction between the state and politics.  And I think this is a point that often, in the American system, is not clear enough -- that often people assume that separating church and state takes care of religion and politics.  (Laughter.)  My claim is that we need to deal with the other issue separately; that is, the state and religion should be separate.  By a secular state, I mean a state that is neutral regarding religious doctrine, but religion and politics cannot and should not be separated.

So the paradox is how -- for me is how to regulate and organize the connectedness of religion and politics in a way that safeguards the separation of religion and the state.

MEAD:  Okay.  Noah.

NOAH FELDMAN:  Thanks, Walter.  Thank you, Abdullahi. 

I just want to say quickly that I'm really grateful to be asked to participate on the panel with such distinguished scholars whose views I have drawn on in my own work.  I guess -- let me start with a quick historical point that draws on Walter's. 

I think that in modern Europe, one solution that was proffered to the problem of how to arrange religious affairs and the affairs of state was to suggest that the religion of the sovereign of the state would be the religion of the state.  You see this already in the Treaty of Augsburg, and then it becomes hardened at Westphalia, and it becomes in some way a basis for all of our modern thinking about church and state.

And that's easy to do when the sovereign is one guy.  When there's one person who is the king or the queen and says I'm the sovereign, that person picks a religion and then the state religion is that religion.  Now, of course, in practice, if that person flips religions, that makes things very complicated.  If you don't know whether that person is born into one religion or another, it makes things complicated.  But it sounds like a pretty good sort of working solution to the problem.

I don't think we would have the same set of church-state problems we have today if it weren't for a weird quirk that happened about a hundred years after that solution, and that quirk was the idea of popular sovereignty.  The core idea that underlies all of our democratic states, the core political idea, is this idea that it's not that one person is the sovereign; it's that all of the people are sovereign. 

Then if all of the people belong to the same religion, it's still not so difficult to say that the religion of the sovereign is the religion of the state, because if all of the people think of themselves as Muslims, and let's say they're the same -- belong to the same school of Islam, then you could still say that the state religion is the religion of that group of people and nobody will make much of an argument about it.

But if the sovereign people are plural with respect to religion, if they belong to lots of different religions, now you have a very serious practical problem.  How can you have the religion of the sovereign be the religion of the state if the sovereign belongs to many religions?  And it's at that point, I think, historically, that you start to see people saying maybe the state should not associate itself with any religion.  Maybe there shouldn't be any official religion.

Now, I wanted to use that historical background because I think it helps for me to see why I think that not every country in the world needs to have the exact same arrangement with respect to religion and government.

To my mind, there are some principles that are universal and should apply everywhere -- this goes to Walter's first point about the Abrahamic religions and their universalism -- and others that could be different in different places.

The parts that seem to me to be universal are the ideas of a basic human right to choose your religion.  Not everyone in the world necessarily agrees with this, but almost all of the great world religious traditions claim at least that there's no coercion in their religion.  The Koran actually says this explicitly, which gives it one step up on the Hebrew Bible or the New Testament.  But all of the world's religious traditions talk this way, I think it's fair to say.  Not all -- in fact, none -- are very good at implementing this in practice. 

But I think that that is enough of a universal value to say that every state, no matter where it is, even if it has an official religion, ought to allow people the freedom to choose their own religion, and with that comes the right as well not to be discriminated against on the basis of your religion.  To me, that's a universal value.

What's not a universal value, to me, is the idea of a secular state.  To me, if the society wants to arrange itself because the vast majority of people, or even just a slight majority of people prefer there to be an official state religion, provided that they grant every individual the basic human right to religious liberty, I think that that's just fine.  I think England is a good example of this.  There the established church may not be very active today.  It may be very difficult to find people in Anglican churches -- (laughter) -- but it's nevertheless the case that the Archbishop of Canterbury is a politically significant figure, not just because he says things that get people riled up every so often, but because he is connected to the organization of the state in an important way.

Similarly, in many Muslim countries, I think it would be practically absurd and, in principle, unnecessary to demand that the state not identify itself as Islamic, because that is what many, many, many -- the great majority, in many cases, of the population wants.  What is not absurd, however, is to insist in those cases that such states respect the basic human right to freedom of religion. 

And in a country like the United States where we have tremendous religious diversity, it would equally be absurd to say that we should have an established religion.  And as a matter of fact, our Constitution recognizes that and makes it impossible, at least formally, for there to be an established religion.

So I'll stop there, without claiming to have resolved any of the complicated difficulties that analysis raises, but at least it gives a framework for thinking that there are some things that everyone should do in every state, some rights that everyone should respect, but that the arrangement of church and state could still differ very significantly from place to place.

HAMBURGER:  Well, I confess I largely agree with what's been said thus far and -- in pursuing the theme that perhaps there can be variety in the world that's perfectly wholesome and that need not trouble us.  I can't help, though, observing that it may be easier to figure out what should not be than what should.  And that leads us to the very sort of narrow range of objections to sort of bullying that we don't like, that can come in many forms.  But that still leaves open many, many possibilities.  And fortunately, England is just one of them, though amusing these days.

It strikes me that religion is often treated in this country as something distinct from the state, something to be kept apart from it, perhaps something even dangerous.  And I -- one of the things one has to worry about is that Americans tend to forget the degree to which the state is itself constituted by religion.

Now, politically we find this an anathema to a Christian nation, but in a more profound sense, this is inevitable, and any anthropologist would point out you can hardly discuss a society without getting into its religion.

The very notion of equal liberty has its foundations in religion.  Now, we can claim equal liberty, equal rights, as some sort of right.  But if it's any more than just a demand, if it's actually going to be a moral duty -- for example, if slavery is immoral, and you actually have a duty to resist it.  If suicide is immoral, you have a duty to resist that -- where are we draw these conclusions from? 

And Locke has a lot to say about this, for all of his failings as a serious philosopher.  Nonetheless, on this point, he comes as close to profound as he ever gets, I think.  And we are too quick to forget that without the religious basis for equal rights, we would be impoverished and we might still have slavery.  So religion is fundamental to the very liberty that we think we sometimes need to protect from religion.

Second, it strikes me that in all societies, and although I'm not an expert in the Middle East, I gather from scholars of the Ottoman Empire that there are a lot of sermons, even in the 14th century, that are very similar to Christian sermons being given at the same time about the role of religion as part of the social structure.  If you want a degree of freedom from severe laws, you'd better hope these moral constraints (is ?) a fairly successful sort.  And religion inevitably has its own way of accomplishing that.

And then finally, it was only recently that we have escaped the notion that we have a government ordained by God.  And in the West we may think we're above religion now -- almost, perhaps, above God.  But in most of the world, such heady thoughts haven't yet permeated quite so far.  And it strikes me that if we are going to talk about religious liberty, we have to keep in mind the fairly -- importance of religion, even to the secular state. 

But I'll stop there.  Thank you.

MEAD:  Very good.

Well, I'm taking away a couple of things here.  One is I've been reminded again of just the sheer diversity of relationships that exist between religion and the state, even in the so-called Christian, so-called West.  So we not only have England, where the queen can't marry a Catholic or become a Catholic.  In Argentina, the president of the Argentine Republic must be a Roman Catholic, something that caused Carlos Menem to get baptized. 

In Germany, the president of the republic can be any religion he chooses or doesn't choose, but if you do sign up for church membership, the state will take a percentage of your income in tax each year and give it to those the state chooses to recognize as the legitimate authorities of the religion which you profess. 

So we can find all kinds of varieties with -- and yet it's interesting that all -- that certainly Germany, Argentina, and Britain, if you asked most citizens of those states do you live in a secular country, they would answer probably yes.  And it's -- while Americans like to talk about how much more religious America is than, say, Germany, I've been reminded by a member of the German Bundestag there are actually more doctors of divinity in the German parliament than in the American Congress.  That may explain something; I'm not quite sure what.  (Laughter.)

But then also I'm reminded, listening to the panelists, that our visions of what is the proper relationship of religion and state are often profoundly shaped by our own religious views.  There's the story in Belfast of a guy who's whisked into an alley by masked gunmen who point a gun to his head and they say what are you, Catholic or Protestant?  He goes, I'm an atheist!  I'm an atheist!  The gunmen think for a second and they say well, are you a Catholic atheist or a Protestant atheist?  (Laughter.)

And there's a sense in which a society can be Protestant secular or Catholic secular or Muslim secular, and those are not always the same thing. 

And what I'd like to do is ask the panelists to explore -- I think this is building on something that Philip said, that in America, certainly, our idea of this separation of church and state, or the relationship, is profoundly based on the overwhelming sort of Protestant character -- and Noah's written about this as well -- of our people at the time of -- you know, in the early American republic.

To what extent is that experience -- you may have some thoughts here, too -- applicable to people of other religious traditions and backgrounds, or how do we have to reconsider what seems to us to be natural in terms of separation of church and state that would work differently in another culture with a different background? 

Would you like to start on that, Phil?

HAMBURGER:  Sure.  Something you may know, I have a certain distaste for the notion of separation of church and state because, by accident, I fell into studying it and, to my horror, found out more about American history than I wanted to know.  (Laughter.)

To put it very bluntly, it's attributed straight to Jefferson, but it's popular --because of theological prejudice, a distaste for Catholicism, particularly Irish Catholic immigrants, the goal was to separate the church from the state.  And it's far from being a minoritarian position; it's a majoritarian position.  It's about protecting the majority of free individuals and their direct relationship to the state from a church which would exert its influence upon the people and deprive them of their mental liberty, thus debilitating them from being good citizens.

And in fact, if you -- just think for a minute.  Which is the organization that most popularized this idea in the first half of the 20th century?  The ACLU?  No.  The Ku Klux Klan.  And once that settles in, you get the idea.

So this fits in with what Noah was saying earlier.  It strikes me that it's very dangerous for us Americans to go around the world talking in broad generalities that seem natural to us, but may be only because we haven't looked at ourselves too carefully.

Our most common generalizations are separation of church and state and democracy.  Well, God help us if that's what we're exporting, and God help the rest of the world.

Democracy isn't what we practice here and it's the last thing we should wish on anyone else.  Our Founders quite deliberately established a republic.  And when one talks about democracy in many parts of the world, it sounds like majority rule.  In fact, it could have an almost fascist implication in some parts of the world.  One has to be very, very careful about overgeneralization.

And by the same token, I think separation of church and state imposes, as Noah suggested, such a high burden on nations for which this is just incompatible, obviously incompatible with their history.  So the best thing we need -- and this fits in with the views of my colleague from Emory -- we need a little modesty, not only in contemplating religion, but also our own propaganda. 

There's an old line from World War I about propaganda: one will not quite persuade one's enemies, and almost defeat oneself.  And I fear separation leads us in that direction.

MEAD:  Abdullahi, would you like to --

AN-NA'IM:  Okay.  I think various ideas will determine that the secular state everywhere is distinctive, historic, and contextual.  I mean, there are no two identical secular states anywhere. 

So secularism, or secular states, and the question of the relationship between religion and the state and religion and politics, which I try to always emphasize are different propositions, this relationship is contextual and historical.  And therefore every society has to negotiate this for itself over time, and this negotiation can go one way or the other.

But I think the -- one point I would like to bring to our discussion is I think we tend to dichotomize too much the secular and the religious.  And the so-called secular-religious dichotomy I think is overstated because religion becomes relevant in the secular world.  It is not the abstract sort of sensuality.  It is -- the relevance of religion in guiding people live -- lies in this world.  And therefore there is an inherent connectedness between the two.

Just referring back to what this morning was being said about the Koran and about the possibility of reinterpretation and so on, Ali ibn Abi Talib, the fourth caliph and the prophets' cousin and -- for the Shi'a, he is the first imam.  He said the Koran does not speak.  It is people who speak for the Koran.

And the point is that the Koran is a revelation to me as a Muslim, is divine to me as a Muslim.  But as soon as it enters human comprehension, it become secular.  It enters into this world to tell me how to live my life in this world.  And because every comprehension of the Koran is a human comprehension -- of course the possibility that there is more to the Koran than what humans can comprehend remains in the realm of individual religious experience. 

But collectively, socially, we are always dealing with someone's understanding of the Koran.  That makes me nervous about calling the state Islamic.  I don't believe that the state was ever Islamic.  Not a single day.  The state is a political institution.  It is incapable of having a religion.

Whenever we give the adjective of a religious state to any state, what we are saying is that, as you said rightly, it is the religion of the ruling elite.  So once you see it is not the religion of the state as such, but the religion of the ruling elite, you see how dangerous it is to permit the elite to attribute their religious belief to the state which we all share.

I would rather have it for me to negotiate what role Shari'a has in society and in the state in a framework that ensures a degree of equality of human rights, of freedom of religion and other freedoms.  And the proscription, as Professor Feldman describes, is to say the state can't have a religion, but at the same ensure freedom of religion for everybody, is a contradiction. 

The very fact that the state identifies with a religion is, by definition, a violation of freedom of religion.  And for that reason, I will try to strive to keep the state neutral, realizing it is not easy.  It's a constant struggle.  And where in the realm of politics to enable people to identify religiously as also as citizens in a variety of ways.

FELDMAN:  It would be very boring for the audience if we all agreed on everything, so I'm glad that we're hitting -- the rubber's meeting the road here a little bit. 

So I'm going to disagree, first with Abdullahi and then with Philip, if I might, and the framework for my disagreement is the same in both cases.  And it's the observation that when we use words that are big, grand words -- which I usually --

I have a 2-year-old son, and I know I'm dealing with a big, grand word when I can't point to the thing when I define it.  Right?  If he wants to know what a chair is, I can point to the chair.  If he wants to know what religion is, I can't point to anything in particular.  The same is true of the state.  I can't point to anyone; there's nothing I -- these are true abstractions, right?

When we talk about abstractions, which we have to do because much of our world is shaped out of these abstractions, we're never defining them in some way that is objectively correct.  We're always injecting into what we say the way we think they should be.

When we say, "religion is," what we mean is religion is and should be.  The same is true when we talk about the state.  They're just two, the two that happen to be in play in this conversation.

Now, when we talk about can there be such a thing as an Islamic state, I understand that argument, the political and religious argument that says no, there can be no such thing as an Islamic state because Islam is a faith and the state is not a faith.  There can be the religion of the people who run the state.

But if all of the people who run the state and organize the institutions of the state say that their state is religious -- right? -- if they assert this and if they have institutions that exist in the real world that they administer according to these ideas, if there are certain people who are in charge of deciding on this aspect of the expenditure of funds with regard to religion, and this group of people who are in charge of that aspect of making sure that -- I don't know -- as in Saudi Arabia, that people attend the mosque.  You know, if you're in the marketplace and prayer time comes in Saudi Arabia, someone comes along and urges you to attend the mosque.  And if notice that you're not a Muslim, then they say oh, sorry -- you know? -- not you.

But if you have people these sorts of things, then it's practically useful to be able to say that you're speaking in the context of an Islamic state, and that's all I need, I think, for me to be able to say that people may speak of themselves as having an Islamic state.

Now, is there a certain contradiction between that and the idea that some citizens would nevertheless be free to exercise their religious rights? And here I'm going to turn to Philip.  So this is the point that Abdullahi made.  There is a contradiction here.

I agree that there's some tension, because if all the people who run the state are saying this is an Islamic state, the person who's a non-Muslim may feel marginal, may have the experience of feeling like, well, wait a minute.  It's not my state.  I don't fully participate in that state.  Right?  And I agree that that can be a subjective experience that the person will have -- will be likely to have.

If, however, they have that feeling, I don't think it follows from that that they are not free to act in the realm of their own religion.  They might not be free.  You might have a great tendency to take away their rights, but it doesn't necessarily follow, I don't think, that they are not free to act in the realm of their own religion. 

And let me just give a practical example of why this so, and here I'll turn to -- my disagreement -- this is apart of where Philip and I disagree.  Although I think Philip and I often agree on the bottom line, we almost always disagree completely about how to get there.  (Laughter.)

So if you look at the Protestant tradition of the separation of church and state, which Philip has done so much to elucidate, it begins with the idea that the state does have a religion, but that that religion demands equal liberty and free choice of religion for each of its citizens.  Right?  Now, not everyone in the Protestant tradition says this, but let's just take Locke, whom Philip mentioned, who for Americans, at least, is the most influential thinker about the relationship between religion and government, I would argue.  

Locke, in his famous letter on toleration, does say that there's no such thing under the gospels as a Christian commonwealth.  He thinks there was a Jewish commonwealth under the Hebrew Bible, but that because of Christian liberty, there's no such thing as a truly Christian commonwealth.  So actually he agrees with Abdullahi on that point.

But he's imagining that the Church of England will remain the established church, and he is imagining that government money and church money will be fully intertwined.  But he thinks that his own religion, which is the religion of the state, in effect, itself demands -- and he makes a religious argument for this -- itself demands that each person be left free to choose his own religion, because the religion wants free choice of faith, and not coerced choice of faith.

Now, does that make separation of church and state a Protestant idea?  In some sense, yeah.  Yes, it does, in America.  And once you see that it's a Protestant idea, it's impossible to disentangle it from a long strain of anti-Catholicism in English-speaking Protestantism.  And so when you look at the historical materials, as Philip does very well in his very important book on this subject, you see, and what do you know -- the same people who were advocating religious liberty are also not in favor of the Catholic Church -- which, they note, as late as the 1860s and '70s says that, quote, "Liberty of conscience is a delirimentum."  Walter's Latin is better than mine, but it's nothing good to say that something is -- it's a, you know, a false imagining.  Something that you ought not to believe.  Right? 

So there's an actual disagreement there on whether the liberty of conscience is in fact an important value -- and, of course, the Catholic Church has changed its view on this radically since that time, and that's wonderful.  But the fact is that once you acknowledge in a historical sense that there is something distinctively Protestant about this development of separation of church and state, you find all the nasty stuff, too.  But that's okay -- and this is where Philip and I disagree.

You find the nasty stuff -- and he's right that it's there, but that doesn't trouble me very much, because all traditions of thought, whether they're religious, secular, or otherwise, have this nasty stuff caught up in it.  So when I read the new atheists, as they are -- they're sometimes called, you know, these writers who get so much attention these days who are, in fact, amazingly similar to the atheists of the 1870s and '80s. 

I mean, in fact, almost all of the arguments, with only a few exceptions, can already be found in those earlier texts.  So once a century they get their chance to really, you know -- (laughter) -- flex and stretch their muscles, and that's probably a good thing.  They're focusing on nasty things that religion has done, and it's almost never the case that they're wrong.  The nasty things they say religion has done, it has done.  But so has every other ideology. 

I'll leave it there.

AN-NA'IM:  Can I --

MEAD:  Sure.

AN-NA'IM:  I'm saying just about the -- because when you say when all the Muslims of a country say that we want our -- or say to me -- Muslims never agree on anything -- never agree.  But the day the prophet died, and before he was buried, Muslims disagreed about how to succeed and who to succeed.  So disagreements have been -- (inaudible) -- you will never agree and you will always disagree, and it's only God in the next life who will adjudicate your differences among you; several verses to this extent.

So the point is that my problem with a -- Islamic state is that what does Islamic mean?  When we cannot agree on what Islamic means, using the term is confusing; in fact, dangerous, because it hides all the nasty stuff that he was talking about behind this veneer of Islamic, so that it becomes harder to challenge it.

He gives an example of Saudi Arabia.  In Saudi Arabia, there is a significant minority of Shi'a in eastern Arabia.  I don't like to say Saudi Arabia.  I like to say Arabia.  How can you name a country after a family?  In Arabia, there is significant Shi'a in the east to whom the Wahhabi doctrine of the state is a heresy, and they are obliged to live under this heresy as the law of the state.

And when you see that Iran is an Islamic state and Saudi Arabia is an Islamic state, what will it mean when, to each of them, the other is a heresy?  So the term Islamic becomes totally incoherent.  You know, as you travel in the region, you will find that people call Islamic law -- Islamic sort of -- (inaudible) -- the term is overused that there is no thought as to exactly what we mean by it.  And when we look closely to what we mean by it, we see that no Muslims of any country will agree on what their state is when they call it an Islamic state.

All of this is to be in the realm of politics.  And that's why I will say let people affirm their Islamic identity and values through politics, but not through a state institutions, which is what I need to have for it to be possible for me to negotiate Shari'a in politics.

MEAD:  Philip.

PHILIP HAMBURGER:  I'm not learned enough to take a position on Islamic law such as Professor An-Na'im just did, but in defense of -- of his position against Professor Feldman's, I must say I fear that Professor Feldman, in defense of his view that there should be possibly should admit there to be an Islamic state, looks to Europe to say, "Well, there are Christian states there."  And it strikes me that, at least in the Anglo-American tradition, which is the freer part of the European tradition, that's not so clear.

So, yes, there would have been a social establishment of Christianity, particularly Anglicanism in England.  And, yes, the monarch is the head of the English church, but if one looks at the theological and political writings of the late 17th century and early 18th century, defending Anglican establishments, the writings that Americans look to and understand, the argument isn't the state is religious, let alone that it's Protestant, let alone that it's Anglican, but rather that there's an alliance between church and state.

So even in the English church's own writings, it's not asserted that there's an Anglican church -- I'm sorry -- an Anglican state, except in the strongest -- (inaudible) -- Tory writings.  In the mainstream English writings, for example, by Bishop Warburton is about an alliance of church and state, in which he does very interesting Madisonian-style reasons.  And so it's really, I think, much more cautious.  So I don't think we can look to Europe and say, "Well, that's what the Europeans did.  Therefore, we should be comfortable with a religious state elsewhere."

I'd also like to disagree, much as I appreciate Professor Feldman's views on this, with his casual use of separation of church and state, as if that is what we're talking about when we talk about disestablishment.  Disestablishment and separation are very different metaphors.  Establishment is about one object elevating another, and therefore it's about a restraint on the government elevating the church.  Separation of church and state, which we think of horizontally, it's about keeping apart two institutions, and necessarily it limits both.  And instead of talking about religion generally, it focuses on organized religion rather than individual spirituality.

So it seems to me, yes, a lot of violence has been pursued in this country even in the name of separation of church and state, as well as in the name of religion.  But that's not our ideal.  Our ideal is actually quite carefully drafted in the Constitution.  It's about disestablishment.

And then, finally, I can't help talking about violence, since that's what lies behind so much of this, right?  We're not talking about violence -- "Let's have some fun" -- because violence has its fun aspect, unfortunately; we're human, and we indulge in it occasionally.  So if it looks back, as the Supreme Court likes to do, they'll say, "Oh, we have to be careful of divisiveness and religious violence," and they allude to Europe, particularly the happy years of the 16th and 17th century when there was a lot of violence.

It's by no means clear that religion has a monopoly on this.  In fact, religion turned out to be rather inefficient.  The Inquisition only killed a few thousand people.  What were they up to?  Their mind was on God, not on the efficiency of killing.  And it strikes me that the secular state in the past century has really done a much better job of it, if you're into that sort of thing, which gets to the larger set of issues, I think, here that we haven't yet discussed, the relationship, as it were, social structures, if we include religion amongst these.

So let's not talk about religion.  I agree with Professor Feldman about this.  It's an amorphous concept.  Let's think just for a minute; not say this is what religion really is, but about unrealistic aspirations for purity and transcendence.

Now, if that is part of the human condition, how should it be pursued, with unrealistic aspirations for purity and transcendence in this world or another world?  And which is more dangerous?  I don't know that I know the answer.  But it's by no means clear to me that pursuing those unrealistic aspirations in another world is more dangerous than in this world.  And I think, sadly, the comparisons to the Soviet Union and the proceedings of the 16th Century illustrate that.

MEAD:  All right.  Boy, well, you certainly know how to bring the fun into a gathering.  (Laughter.)

HAMBURGER:  I don't like violence myself, but it's fun to talk about.

MEAD:  All right.  Well, I think, speaking of fun, maybe it's time to give the audience some and open this up for questions.  Again, I'd like to remind you that a question is a statement which can be grammatically ended with a question mark.  (Laughter.)  One can usually tell one's being asked a question by sort of a rising inflection that comes at the end of the sentence.  And questions are, generally speaking, rather short.

So if anybody has questions, please raise your hand.  We'll bring a microphone to you.  State your name and your affiliation for the sake of those watching by video.

QUESTIONER:  Charles Harper, John Templeton Foundation.

I want to state a thesis as a question for all of you.  Do you think that strategically, for the Council on Foreign Relations and the United States generally, that this issue for intellectuals of clarifying the difference in religion between a situation before and after an American-style politic -- constitutionally of the separation of state power from religious culture, do you see that as something that's vital for American intellectuals to engage with in the world to clarify what the American experiment and experience has been?

MEAD:  So if I rephrase that, gentlemen, does your life's work have any meaning or purpose?  (Laughter.)  Anybody want to jump in there?

FELDMAN:  One think that I think is fair to say is that, though it's obviously crucially important in the American realm for us to understand what we're doing ourselves domestically, we shouldn't draw the conclusion from that that once we've figured it out, then we'll have something we can hold their hands and export.

I mean, one of the weirdest experiences of my life was sitting in the Green Zone and hearing U.S. government officials, who were aligned with the political movement of deeply skeptical of, for example, the idea of a secular state -- we don't have a secular state here -- saying things like, "The most important thing we have to keep in mind for the new Iraq is that there must be a strictly secular state."

First of all, it bespoke a willingness to sort of imagine something on the U.S. side that they themselves denied exists on the U.S. side.  But second of all, it bespoke this idea that they knew exactly what we had in the United States and we should export that.

So I want to (exploit ?) all of that -- (inaudible).  I think the other panelists do too.  We do want to understand what we have here.  We want to understand the fights that we still have in the United States, the lack of clarity that we have.  And then we want to realize that whatever the lack of -- (inaudible) -- that we have is, that's probably not the suitable thing to impose on anybody else.  At least that's my own view.

MEAD:  They should have their own lack of clarity.

FELDMAN:  Exactly.  They should have their own version of confusion.

And this is the last thing I would say.  I mean, a constitutional tradition that works is one that is in a constant state of dynamic evolution.  You have a written constitution that says "x," but no constitutional system works if it just follows what's in that written constitution and never changes.  Interpretation gives it the freedom to change.  And if it doesn't even have a text, so much the better, often, because then you have a little bit more freedom for the dynamism.

So everyone's going to have some complex dynamic unresolved form of the relationship between religion and government, but they shouldn't all have the same confusion.

MEAD:   Abdullahi, do you want to --

AN-NA'IM:  I was going to -- I am from Sudan.  At this point I am an American citizen, but I am from Sudan and am formed by being from Sudan.  And one term or concept, idea that has not really been raised much is colonialism.  Much of what we see is post-colonialism, that it is more informed by colonialism than it is by anything else about Muslim societies and their history.

The Islamic state discourse is a post-colonial discourse, because one position that we have not clarified, what do we mean by the state?  The form of state -- the type of state that we now live with is a European model of the state.  And the idea of law that Muslims -- when Muslims talk about an Islamic state before Shari'a, they think of it as Shari'a as positive law; European idea of law, European idea of the state.

So it's a contradiction, I think, to claim to affirm Islamic identity through two European institutions, the state and law.  The type of state that Muslims lived with historically is a very different type of state than the state they are living with now in the post-colonial.

Now, coming to the American, also one question.  Iraq was mentioned a couple of times.  But the fact is that Iraq has been a colonial experience; that is, the United States has colonized and is still colonizing Iraq.  Iraq is not a sovereign state now, as we speak.  And probably in my book, the biggest moral failure of the United States since the Second World War has been the invasion, occupation and colonization of Iraq.

And this event, if we can call it an event, has done sort of horrendous consequences for decades to come and outraged, completely outraged, that we can talk about it as if it is something that happened and, okay, we'll just now deal with the consequences.  No, it has to be condemned for having happened in the first place.  And thus, having had to be condemned for having done it, now the impulse is the Americans go out in the world to engage in conversation about the American experience -- absolutely fine, wonderful.  In fact, we do this all the time.

I studied constitutional law with an American professor in the 1960s in Sudan, and I learned a lot from him.  And I continue to learn from my American experience.  But if you send your armies to missionize for your view of what freedom of religion is and what church and state is, that's completely unacceptable and utterly counterproductive.

FELDMAN:  Just for the record, I mean, we did invade Iraq; there's no question.  And there's no question, further, that our presence there has features that are in common with colonialism, or with imperialism maybe more precisely.  But if you look at the constitutional structure that emerged in Iraq, it has nothing to do with the U.S. constitutional structure.  I mean, for better or worse, it makes Iraq an Islamic state and says that no law passed may violate the judgments of Islam.  I mean, it says that when it comes to family law -- I mean, you can say these are terrible things.  I think you do think they're terrible things.  But whatever they are, they're not American things.

AN-NA'IM:  No, but the fact is that it was drafted during an American occupation, that the people of Iraq -- I mean, the question is also Britain colonized Sudan and Uganda and Kenya; I mean, most of African states.  And it was -- and the French did it too.  At the end of the colonial period, they drafted a constitution in Lancaster House in England for the new state to just go on and become independent and sovereign as of today, because we have made you sovereign.

When our secretary of State sends a letter to the government of Iraq to say that "We have your sovereignty for a year.  Here, have it back.  But we will keep 150,000 troops heavily armed under foreign command who will protect you from your own population, but you are a sovereign state."  The constitution of Iraq has not happened.  And the fact that you have a document called the constitution of Iraq is not and does not make it the constitution of Iraq.

You know, constitutions are not made in documents.  Constitutions are hearts and minds of people.  And until the people of Iraq have the freedom and the stability and the ability to draft their own constitution completely free, without any foreign advisers, without technocrats telling them how to draft this or how to work it out or not work it out, it is not a constitution.

MEAD:  Well, I think -- let's try to -- points taken, but let's try to keep this on the broader agenda of responding, I think, to the question of, you know, the validity -- sort of the importance for American foreign policy of trying to understand this issue of religious --

HAMBURGER:  I do want to get back to the original question.  I just cannot help engaging a little bit on this point.

MEAD:  Please don't.  (Laughter.)

HAMBURGER:  One sentence.  It's simply that if one takes everything that Professor An-Na'im just said as true, it just does strike me that we won't have to worry that the colonial discourse tends to lead us only to look at some tragedies and not others.  And I think if one's really to be concerned about the people of any nation in this world, as a human being, one has to recognize disasters can happen from any direction, including from within, and that's certainly been the case with Iraq.

Now, getting back to the question, though, it strikes me that, yes, we do need to be engaging.  I almost agreed with Noah there until he went on about the living constitution, and then I had to back -- can't win 'em all.  It strikes me that we have had a remarkable experience here, perhaps just by accident.  None of us in this room, I think, can take credit for it, but we have lived in a genuinely blessed country in a blessed period of time where it is just not normal in human experience to have what we have in the United States.

And by whatever grace that is, I think it is worth talking about.  It's worth talking about with all the caution that my colleagues have mentioned, because we don't know which elements are essential, and there's a danger we will misstate it, so we need to be very modest about it.  And it may be that we should not impose this; that's surely true.  And yet, at the same time, just to show the model of living, a Lutheran pastor once explained to me how he reached his congregation, and he said to me, "I don't have a congregation; I just try to live right, and people notice that."

And we can take the same approach.  But I think, at the same time, one can't just live right.  One has to talk about it.  And, yes, we need to be engaged with a sense of prudence, with a sense of the diversity of the world, but sharing at least the model so that people can adapt from it what I think they will undoubtedly find deeply attractive.  And frankly, people across the world do.

MEAD:  And I would probably add, from the standpoint of the Council on Foreign Relations, or at least some of us here, we think that certainly since September 11th, but a lot of events before that, have raised the importance of trying to get a clearer understanding in the U.S. of how our own traditions have evolved in this respect and then trying to understand better where those do and don't intersect with the experiences of other societies and what usefully can we do to try to advance some of the universal values that Noah was talking about in these very different contexts.

Sir.

QUESTIONER:  Jim Dingman, INN World Report.

When one travels to Europe, one's constantly confronted with the question of "What are you Americans doing letting these fundamentalist Christians dominate your foreign policy?"  All the time last fall, I got that continually.  And we know that operationally that influence has been realized in the HIV-AIDS policy of Bush's administration in Africa.

And I wanted to get your take on that and also how people in Europe are perceiving how religion is in the election process.  For example, we've had three weeks of Jeremiah Wright being thrown at us, and that has, of course, been perceived differently in Europe than in the United States.  I wanted to know how you see those things.

FELDMAN:  We're on the record, right?

MEAD:  No, go right ahead; sounds like you're itching to go.

FELDMAN:  Well, I mean, look, on the first point I would say welcome to participatory democracy.  There are all these foreign policy elites; some of them may be in this room.  Some of the people who helped create this room, who think that it might not be such a good idea for the general democratic population -- here I mean democratic, not a small "r" republican -- to be involved in foreign policymaking, right, because they think, "Wow, what happens when that happens is that all those people out there have these views that we elites don't agree with will impact our foreign policy -- yuk."

Now, you know, one of the costs of the democratization of foreign policy in the last 115 years, which is itself in part of a very complicated story that Walter has told part of very brilliantly of post-Cold War changes in the way foreign policy is shaped, one of the consequences of this democratization of foreign policy debates is that constituencies that historically didn't do that much or weren't able to do that much to affect our foreign policy now can and do.

I think that in many particular cases -- the one you mentioned is a good one -- I don't agree with what that particular constituency wants our foreign policy to be.  But I completely disagree that it somehow follows from that that public voices should be excluded from our foreign policy judgments.  I think if you're serious about being a democracy, you need to acknowledge that.

And when you make your foreign policy, you have to think seriously about the fact that that foreign policy is now going to be shaped in the long run by what the general public believes.  I think that's got to be now part of the foreign policy calculus.  When you decide to do something, you can't think, for example, that the next administration, even if it's of a different party, will do just what you expect it to do.  That's a mistake, I think, now in foreign policy, where then maybe it wasn't the case in certain aspects of the Cold War.  So that's on the first half of the question, and I'll leave Jeremiah Wright to my colleagues.

HAMBURGER:  I just want to comment on the notion of fundamentalists anywhere.  Who are the fundamentalists, right?  Fundamentalists are a small group that are more generally known as evangelicals.  The number of fundamentalists in this country who were actually traditional fundamentalists are tiny.  I mean, how many premillenarian literalists are there in this country?  That's not most evangelicals.

And so when people criticize fundamentalists, they're revealing a certain theological ignorance, I fear.  And what particularly worries me is that this is a theologically (inflected ?) term.  This is saying some people believe in fundamentals.  In other words, they believe in orthodoxies.  We are theologically liberal.  The implication is, "And we don't have orthodoxies."  And somehow this gets into class distinctions, too -- the educated versus uneducated and the rest.  And so I think we have to be very careful with labels.  Most evangelicals are highly individualistic.  Most of them are not fundamentalist in the traditional term.

And just a final thought here.  Since I am interested so much in the bullying of religious minorities, we would not ordinarily take the label for a small minority and treat that as a label for some sort of social ill or theological ill.  You know, if you're worried about some sort of habit that you associate with a particular religion, you wouldn't say, "How Protestant of you.  How Catholic of you.  How Islamic of you.  How Jewish of you."  We think how prejudiced that would be.  But we don't hesitate to say, "Gee, that's very fundamentalist," and we're not even talking about fundamentalists.  We're using minority label.

And so I just feel a lot of these criticisms don't even understand the theologies involved.  Now, it may be right, as Noah points out.  Perhaps we might disagree with the policies.  But that's a different issue altogether.

MEAD:  Yes.

QUESTIONER:  (Inaudible.)

MEAD:  I have a feeling we'll come back to Jeremiah Wright.

QUESTIONER:  I'm definitely not Jeremiah --

MEAD:  He'll take care of himself.

QUESTIONER:  Thank you.

I'd like to ask you to express an opinion.  Mr. Ratzinger, who has chosen the name of Pope Benedict XVI --

MEAD:  Are you a Protestant, by any chance?

QUESTIONER:  There's a chance.  There's a chance.  I'd like to ask you to comment on this too.  And I know you're the fair-minded moderator here.  I will not try to quote him, because he did it in Latin and my Latin is not that good.  But he said at one point here three or four months something to the effect that he would support the building of mosques in Rome when the Saudi government permitted the building of churches in Riyadh.  Would you comment on that?

AN-NA'IM:  There is so much more to the Muslim world than Saudi Arabia.

QUESTIONER:  (Off mike.)

AN-NA'IM:  (Laughs.)  Because he said Riyadh, so -- at least to be clear.  I made my point about the family and the country.  But now what I'm saying is this.  I noticed also this morning already that there is so much focus on the Middle East as if it is representative of the Muslim world at large.

The Arab Muslim region is about 10 (percent) to 12 percent of the total Muslim population -- 10 (percent) to 12 percent.  There are more Muslims in sub-Saharan Africa than there are Muslims in the Middle East.  There are -- India is the second-largest Muslim country in the world, or third, probably, when you compare it to Pakistan.

The point is that so much Muslims and Islam historically, as well as currently, are not anything to do with the Middle East; in fact, quite different, very much different, that -- so that I think for the pope's remark, I think it is unfair to sort of prejudge Muslims' attitudes about churches and Christian-Muslim relations and so on by what goes on in Arabia or Saudi Arabia, as your choice.

In that sense, the point is that also, I would say, I would hope that a pope would be more visionary and more leading the Christians than this tit-for-tat attitude.  He should say that "I would support building a mosque in Rome regardless of what" -- because he should be driven by his own religious conviction as a Christian, not by what -- and this is exactly what Muslims are doing now when they are (ranting ?) against the United States and condemning everything that's good about this country because they hate some aspects of the foreign policy of this country.

What the United States does or does not do should not define what I do or not do and my right as a Muslim.  And I would hope that the pope would think "What does my religious conviction as a Christian leader lead me to do about mosques in Rome?" rather than being defined by what Muslim leaders do or prefer to do in other countries.

MEAD:  I suppose the king of Saudi Arabia might also reply, "We'll separate mosque from state in Saudi Arabia when you do it in the Vatican, your holiness," and see what he gets.

QUESTIONER:  Hi.  Assam Rehman (sp), Muslim Bar Association of New York.

Just to take advantage of the fact that we have three law professors, I wanted to ask your opinion on the role of religious judicial bodies.  This is something that was discussed earlier this morning, but perhaps each of you can comment, because, for example, Professor An-Na'im, you talked about keeping religion out of the institutions.  How does that concept inform the existence of a judicial body or even a scholar who is empowered by the state to adjudicate matters?  Professor Feldman, you wrote about this recently.  I'd like to get your views as legal experts on that matter.

(Off mike commentary.) 

AN-NA'IM:  Okay.  You might be surprised, but I am opposed to what the archbishop has proposed.  I think it is bad for the state institutions to enforce religious adjudication.  Religious adjudication and other types of adjudication happen all the time.  And we can never stop it, and, in fact, we can encourage it.

My objection comes when you involve a state institution in enforcing the outcome of -- (inaudible) -- our situation.  If it is freely chosen by the parties, you can have types of issues where that happens outside the state institutions, and it will happen outside the state institutions, and it is good that it happens.

But implicating the state institutions into enforcing religious adjudication is dangerous for the state and for the religion.  Now, one point is that when -- say, if you have a Shari'a-based arbitrational family dispute in Britain go before English courts to enforce, is the court going to review only the procedural aspects, or is it going to review the substantive aspects?  Or is it going to enforce based on the authority of those who adjudicate it without questioning looking into what really went on and what are the issues?

Now, is an English court competent in Shari'a to be able to review adjudication outcomes?  If it is not, is it going to enforce an adjudication that it has no way of evaluating in terms of its good or bad nature, and so on?  Now, the point is that the realm of community life are very much -- I think my sense of separation of church and state, as you said, is protecting the state from religion and religion from the state.  And in that light, I would be opposed to enforcement of religious education.

Now, another point to add; I don't know how much time -- time, of course, is short.  The thing is, what is the Shari'a authorization for this selectivity, because if what you are doing is enforcing Shari'a, Shari'a has a lot to say on everything.  How come that you choose this particular limited issue and exclude all other issues on which Shari'a is as authoritative as it is on this issue?

In the sort of Ontario case, the same proposal was made in Ontario.  And the proposal was made excluding custody-of-children issues.  Because custody of children is a federal jurisdiction, so they were saying in Ontario, "Let us do it in other issues, not with custody of children."  How can you deal with a family dispute without including custody-of-children issues as a factor simply because the state structure is such that this is outside the realm of the provincial?  That is the sort of confusion that is bound to come through if you try to do this sort of thing.

HAMBURGER:  If I could just add a word here, for 480 years the law of the land has had complete obligation, within the jurisdiction of the common-law nations.  There is no room for a distinct jurisdiction independent of it.  And although in England church courts can be authorized by the state, it's always under their complete authority of the law of the land.  And that's just fundamental.  That's why our constitution refers to the supreme law of the land. 

And I agree with Professor An-Na'im.  It's very, very dangerous to start breaking that down.  That can go in a lot of different directions.  This was the split between the Catholic Church in England in the 1530s, and there's just nothing as fundamental as the complete force of the law of the land in jurisdiction.  And we're familiar with this in many areas, in questions of race, questions of religion and so forth.

There is some room for contractual arrangements by which individuals put themselves into someone else's judgment, be it religious or commercial, right?  But the secular courts must always have competence to decide the matter ultimately.  And to inquire, which is genuinely voluntary, there's potential for this to go in a very dangerous direction, and not, incidentally, to the advantage of Muslims.

FELDMAN:  Here I disagree with my colleagues.  To me, this question comes under the general category of things you could do differently in different countries, provided that basic human rights are respected.  And I would note that in his pretty tentative speech, if you actually read it, which obviously very few people have done -- in this room I'm sure many have, but in the world, very few people have done -- the archbishop of Canterbury spoke of, first of all -- the background assumption of the talk was that, of course, the laws of the state would ultimately be the ones that authorized the local court -- the arbitral body, and that the state law would be the supreme law of the land.  He was very explicit in this respect, and he also said very explicitly that equality of men and women would have to be respected, that that would trump any particular Islamic principles, and so forth and so on.

Now, I think it's worth noting the difference in approach -- and this goes back to the previous question -- between Pope Benedict and the archbishop of Canterbury because they both lead -- once much larger, but they both lead big Christian denominations -- when it comes to dealing with the question of Islam.  Pope Benedict's verbal practice thus far and his experience have been to be, let's say, on occasion sharply negative about aspects of Islam.  That has brought him a lot of opposition in the Muslim world, but it's been pretty good for him as a sort of political move within Europe.  I think it's fair to say that he has strengthened himself within Europe as a result.  An interesting strategy on his part, especially given that he has said explicitly when he became pope that one of the dangers for the church is becoming irrelevant in Europe.  So it turns out that being sharply negative about Islam is a very effective technique for making yourself a player in the contemporary European environment.

The archbishop of Canterbury --

(Cross talk.)

MEAD:  -- could maybe take a lead --

FELDMAN:  -- yeah, it's interesting.  Yeah.

The archbishop of Canterbury, by contrast, gave this very tentative and scholarly lecture in a pretty academic environment and all hell broke loose.  You know?  I mean, they were calling for his resignation.  And you know, he's been handling some pretty sensitive matters over the last couple of years that -- the Anglican community is not without its difficulties, as we know -- but nobody, as far as I know, has made as open, as loud, as angry a set of calls for his resignation as came over this one speech.  So there's an important lesson there about the political climate in Europe right now.  Say anything that might be construed as in some way -- and the archbishop was very explicit -- he was trying to experimentally think of ways to reach out to the Muslim community in England to make it feel fully a part, and you can think that that's a mistake; you can think it's wrong -- but the spirit of the speech I think is pretty clear, and look at the consequences. 

MEAD:  Okay.  We have a question from one of our very patient webcast viewers that I'd like to interject here.  This is from Rene Lape (sp) at Friends Academy, who asked, "Regarding the relationship between Christian believers in the United States and the state, when it comes to issue such as the prohibition we have always had on men having more than one wife, a rule strictly related, it seems, to our identity as a Christian nation, how do you see the role of the state in defining the nature of marriage -- whether we're speaking of same-sex marriage or monogamous marriages?" 

So, I guess behind that is the notion that religious presuppositions inform the approach of the state to such basic matters of family life -- is this appropriate? 

MR.     :  (Off mike.)  (Laughter.)

AN-NA'IM:  I'll try briefly.  I think it is legitimate that every society's legal order -- codes of family law included -- would reflect its values, its culture, its religious beliefs included in that.  But the point is that certain -- as it is enacted as law by virtue of the will of the state and not by virtue religious authority.  So monogamous marriage is now part of the -- of course we are clear, all of us, that the origin or the underpinnings of this are Christian or particularly at least some interpretation of Christian dogma, but the point is that it is family law by virtue of the will of the state, not by virtue of divine command.

If that is the case, then it can be changed, too.  Not that we are going to have polygamous marriages, but the point is that we are dealing with the secular world.  My view is that in Islamic-majority countries, family law also should be secular law and should be seen as such; that you have a family court.  If the peoples are Muslims, their values will be reflected in that court, but there is no confusion that what the law is is the rule of the state and not the religious commands according to some interpretations of it. 

So, in that sense, we can have polygamous marriage or not have this divorce or that divorce -- all of it as secular law so we can change it.  But once we say, "This is Shari'a," then what can we do about it?

MEAD:  So in some countries one can have multiple wives; in this country we have multiple conceptions of marriage.  But these come from the democratic system of politics.  And underlying this and the prior question really is the matter of women's rights.  Right?  To what -- whether we're talking about polygamy or we're talking about Shari'a is introduced as a set of -- a subpart of the legal system as to family matters, the concern that I think many people rightfully will have is what will happen to the woman as an individual?  Will her rights be fully respected?  And to what extent will her freedom remain under such a system?  And given the role of the equality of women generally one might say in the development of the set of political systems and freedoms that we appreciate -- and it's been a central part, frankly -- women's rights have been a central part of the movement against slavery in this country and in changing our polity I think in ways that are on the whole rather wholesome.  We ought to be very, very careful about inviting what might become instruments of undermining this.  In fact, if there's anything we can do for the rest of the world, it will be to remind the rest of the world that in fact half the population -- many parts -- are excluded from full participation as citizens.  And, to put it mildly, that's a shame.

Yes, in the back?

QUESTIONER:  Yes.  Eric Gregory from Princeton University.  I'm an academic, so you'll forgive me if I worry this is getting to concrete.  I'm going to ask an abstract question, and it was provoked by Professor Hamburger.  I think as a matter of intellectual history, the concept of the secular and even human rights and even the separation of church and state have their soil in theological and religious sources.  And you said that we would be impoverished today without those religious motivations to regard people as equal, et cetera.  Do you want to go further and say they're actually necessary and required?  And I wasn't sure if you meant that as a philosophical argument, as a sociological argument or as a historical argument.  Can we tick away the God talk as long as we have the constitutional practices and democratic republican institutions, or is religion necessary for the defense of human rights?  It's the question about Locke, really. 

HAMBURGER:  Yeah.  It's a good question.  It's an -- I don't know the answer, and I fear that we're living through an interesting experiment.  We won't know probably for a little while -- I hope not to live long enough to find out.  But this is the division between America and Europe, right?  And if we think -- I don't think America has ever really been the same as Europe, but there are some commonalities.  And if one looks at the fate of Europe and the fate of the United States, we each have our problems, but their problems may turn out to be more fundamental precisely because they place such a burden on their mere humanity, and that is more than most societies have survived.

I don't want to suggest that nothing -- you know, it isn't possible.  That would be going too far, right?  We have no evidence for that.  But if one looks across history -- and of course, we only have a few thousand years of detailed evidence -- but if one looks across history, it's difficult to find a society which really gets very far, survives very long without some outside source to define and give stability to what we loosely call -- politely call "values," right, but which actually have to be a little bit more magnetic than that.  So I don't really know, but I'm -- although personally an optimist, professionally I'm a pessimist.  (Laughter.)

MEAD:  Yes?  Wait for the microphone.

QUESTIONER:  Paul de Vries with New York Divinity School.  I'm also on the board of the National Association of Evangelicals.  It puzzles us that we've had such a giant influence on foreign policy.  We look at many of our attempts to affect foreign policy in terms of restricting sex trade, nonviolent conflict resolution, creation care, environmental issues to be part of foreign policy and so forth.  And perhaps the -- (inaudible) -- list several more, perhaps the only success was the AIDS program that Bush pushed in Africa. 

But I guess the question -- we represent directly 20 million evangelicals, and indirectly probably equal number.  What can we do to wake up Washington to what we see as the eternal values?

MEAD:  How can evangelicals get more political influence?  (Laughter.)  Who wants to answer that?

FELDMAN:  I'll say something about at least the first part of the question -- how it's a surprise.  It's sometimes a surprise where one has influence and where one doesn't have influence. 

I think one of the key rules of American foreign policy is that if you pick an issue that nobody really feels strongly on the other side of, or at least where the opposition to you is not well organized and where no really fundamental national security interest is on the other side, that's where you're likely, in the first instance, to have a lot of impact.  Right?  I mean, this is a key point in understanding the role of the pro-Israel lobby -- both the Jewish pro-Israel lobby and the evangelical pro-Israel lobby.  Walter has written recently in an interesting review of Mearsheimer and Walt's book about this phenomenon.  It helps if you're advocating for something and no one is very organized in advocating on the other side of that issue.

In terms of how, though, one has an effect or a group of concerned citizens have a big effect where the national security interest doesn't obviously align with what they're pushing for or where there are other strong interests -- especially corporate interests -- on the other side, there the thing about our republican democracy is that the push really has to happen at the level of individual congresspeople.  I mean, that really is the way it works.  And although, for example, we speak of the tremendous corporate impact on our politics, which is enormous, that is accomplished via the mechanism of targeted support for particular representatives and senators.  That's our version of what we don't consider to be corruption.  I mean, at the margins it can become corrupt, but the American approach for better or for worse is to say money has a huge impact, so let's create a legal channel for money to have its influence so that it doesn't have its influence through non-legal channels. 

That may be a terrible mistake -- and again here, the European example is an interesting contrast where there's at least in many places in Europe a serious attempt to avoid the influence of money in politics, and yet there doesn't seem to be the kind of corruption that one sees in some other places.  That's an interesting contrast, and especially whether we could achieve that is I think the central question and the question of campaign finance reform. 

But that's really my view:  You do it by identifying particular people who are vulnerable and trying to get them elected or not elected. 

MEAD:  Okay.  We have time I think for one more question.

QUESTIONER:  I'm Sayed (sp).  Once again, I just wanted to make a brief observation in terms of open societies.  If both religion and the secular-minded groups are so much strongly in favor of open society, what is it that makes this a difficult thing to be realized?  Are we not looking at the moral aspect of it, or is there something else?  Thank you.

HAMBURGER:  Well, if I may, I feel that too often both secular attitudes and religion are used, right?  In the particularly in the democratic style government, religion is used to mobilize passions -- sometimes for good; sometimes for evil -- and so too, fears of religion.  And so it may be that the civilized conversation we can have here is not easily replicated out there simply because of the nature of politics, getting people mobilized, the way that Noah suggested.  So it may be something we just have to live with, which would be sad, but I don't have a solution. 

FELDMAN:  I think part of it has to do with the way that in politics no one is ever satisfied with just winning a particular debate.  If you can win a debate, you then want to move the goalposts to increase your chances of winning the next debate.  And I think that's where the real potential for conflict actually happens.  It's not just -- I mean, there's of course conflict if two different groups see an issue differently and they argue about it and they're each trying to lobby their congressman to get certain results and one wins and the other loses -- yeah, that's ordinary political fighting.  But rarely do they stop there. 

So we have constitutional politics, for example, where secularists -- legal secularists, as I sometimes call them, argue that religion should not be allowed into public discourse and then try to create constitutional rules that will make it harder -- will raise the barrier for religious folks to participate in that debate. 

And on the other side, you might have situations where people you might call "values evangelicals" -- I don't mean literally just evangelicals but people who evangelize for values -- also want to change the constitutional rules so that for example, state funds can be used to sustain their institutions, which will enable them to do a better job and win more future political debates.  And that's where I think you get the really heavy fighting.  And I don't think there's any solution to that.  I mean, this is an answer to your -- to try to be a direct answer to your question of why don't we all just get along.  (Laughter.)  It's because we're all trying to harden our advantage for the next time out. 

But that's just what constitutional politics always looks like, in my view.  And the test of a successful constitutional polity is that you keep that fighting within some bounds, and usually the bounds are nonviolence.  (Laughs.)  That's a pretty good bound to aim for.

AN-NA'IM:  So, just to close by saying that I can agree with Professor Feldman.  On this one I do agree with him -- that the point is that if you're -- I mean, when, we say open or closed, these are relative terms because it is relatively closed or relatively open, and also a question of how open or how closed -- in what ways?  And those are issues on which people are going to disagree constantly and permanently. 

And disagreement is good.  Conflict is good.  And in fact conflict is creative.  That's what makes us human.  It's part of our humanness is to be in disagreement because we tend to be distinctive as who we are, and that is not going to be who he is or who the next person is.  The only point is not to be violent about it. 

So the challenge is how to create normative institutions and mechanisms whereby we can negotiate our difference without resorting to violence.  Whenever we have this, there is no end to how open and variety of ways in which you can be open. 

MEAD:  Well, we never did get back to Professor Wright, but I think you'll -- Pastor Wright, but I think you'll agree with me this was still a very successful session.  (Laughter.)  We have lunch now, and we reconvene -- (applause) -- thank you.  

AN-NA'IM:  Thank you.

####

®FC¯END

®FL¯

.STX

      (C) COPYRIGHT 2008, FEDERAL NEWS SERVICE, INC., 1000 VERMONT AVE.

NW; 5TH FLOOR; WASHINGTON, DC - 20005, USA.  ALL RIGHTS RESERVED.  ANY REPRODUCTION, REDISTRIBUTION OR RETRANSMISSION IS EXPRESSLY PROHIBITED.

      UNAUTHORIZED REPRODUCTION, REDISTRIBUTION OR RETRANSMISSION CONSTITUTES A MISAPPROPRIATION UNDER APPLICABLE UNFAIR COMPETITION LAW, AND FEDERAL NEWS SERVICE, INC. RESERVES THE RIGHT TO PURSUE ALL REMEDIES AVAILABLE TO IT IN RESPECT TO SUCH MISAPPROPRIATION.

      FEDERAL NEWS SERVICE, INC. IS A PRIVATE FIRM AND IS NOT AFFILIATED WITH THE FEDERAL GOVERNMENT.  NO COPYRIGHT IS CLAIMED AS TO ANY PART OF THE ORIGINAL WORK PREPARED BY A UNITED STATES GOVERNMENT OFFICER OR EMPLOYEE AS PART OF THAT PERSON'S OFFICIAL DUTIES.

      FOR INFORMATION ON SUBSCRIBING TO FNS, PLEASE CALL CARINA NYBERG AT 202-347-1400.

      THIS IS A RUSH TRANSCRIPT.

-------------------------

This event is part of the Religion and Foreign Policy Symposia Series, which is made possible by the generous support of the Henry Luce Foundation.

WALTER RUSSELL MEAD:  All right.  May I have your attention, please.  Would everyone please sit down?

All right.  I'd like to welcome you to the second session of our Council on Foreign Relations seminar today.  This is a symposium on Religion and the Open Society.  This is our second session, on Religion-State Relation.

I am Walter Russell Mead, senior fellow for U.S. foreign policy.  It is my honor to introduce to you Abdullahi Ahmed An-Na'im, professor of law, Emory University Law School; Noah Feldman, professor of law, Harvard Law School and adjunct senior fellow here at the Council; and Philip Hamburger, professor of law, Columbia University Law School.  Welcome.  Welcome, everyone here, and also welcome to all of those who are joining our symposium this morning on video.

I'd like to remind you all that this is an on-the-record session, so anything that you say may be taken down in evidence and used against you.  (Laughter.) 

In our second session this morning we're going to try to follow up some of the lines of conversation that were introduced in the first session and also introduce some new themes. 

As the discussion was proceeding this morning, I was rather forcefully reminded that Abrahamic religions in particular -- that is, Judaism, Christianity, and Islam -- and some of the secular ideologies that have historically derived from that mix of religious cultures are bodies of thought which believe that there is a way the world ought to work.  There's a right way to live.  And obviously, if there's a right way to live, there are wrong ways to live.

And there are universal standards of justice, of conduct, that at least in theory ought to apply to all people everywhere.  And in human societies, as a general rule, there are states -- that is, bodies of organized authority whose mandate it is to see that things are run properly.

And so in Abrahamic societies, the relationship between the religion, which teaches us how the world ought to be run, and the state, that group of people whose job it is to run the world or at least to run that portion of the world under the authority of a particular state, have a charged relationship. 

Religious authorities will often, in sermons or otherwise, tell political authorities and state authorities how they ought to work.  Religious authorities will try to shape the conscience of voters in democratic societies so that the voters will vote for politicians who espouse the values that -- by which the state ought to run.  Certainly in our society in the United States we see many efforts, particularly in an election year, in which religious leaders of various kinds are trying to shape political outcomes.

Now, our three panelists today who, I guess, represent at least a good percentage of the faiths of the family of Abraham, are scholars who have spent a lot of time investigating the relationship of religion and state -- how it actually operates and how it ought to operate.  And I think it might be useful for the audience if we proceeded maybe just right down the panel and each of you share a kind of an overview of your sense of how religion and the state ought to operate, from your own particular perspective, whether that's a faith-based perspective or a more secular approach. 

And if you would like to start, Professor?

ABDULLAHI AHMED AN-NA'IM:  Good morning, everybody, and thank you for being here. 

I speak as a Muslim, so my perspective is religious.  And it is my perspective that indicates for me that I need the state to be secular in order for me to be the Muslim I choose to be.  And the only possibility of being Muslim is by choice. 

So I stake the secular state as a prerequisite, as one of the conditions for the possibility of being Muslim.  I may not be a good Muslim -- I'm sure I'm not -- but whatever degree of being Muslim it is, it has to be within a framework of a secular state.

But I make a distinction between the state and politics.  And I think this is a point that often, in the American system, is not clear enough -- that often people assume that separating church and state takes care of religion and politics.  (Laughter.)  My claim is that we need to deal with the other issue separately; that is, the state and religion should be separate.  By a secular state, I mean a state that is neutral regarding religious doctrine, but religion and politics cannot and should not be separated.

So the paradox is how -- for me is how to regulate and organize the connectedness of religion and politics in a way that safeguards the separation of religion and the state.

MEAD:  Okay.  Noah.

NOAH FELDMAN:  Thanks, Walter.  Thank you, Abdullahi. 

I just want to say quickly that I'm really grateful to be asked to participate on the panel with such distinguished scholars whose views I have drawn on in my own work.  I guess -- let me start with a quick historical point that draws on Walter's. 

I think that in modern Europe, one solution that was proffered to the problem of how to arrange religious affairs and the affairs of state was to suggest that the religion of the sovereign of the state would be the religion of the state.  You see this already in the Treaty of Augsburg, and then it becomes hardened at Westphalia, and it becomes in some way a basis for all of our modern thinking about church and state.

And that's easy to do when the sovereign is one guy.  When there's one person who is the king or the queen and says I'm the sovereign, that person picks a religion and then the state religion is that religion.  Now, of course, in practice, if that person flips religions, that makes things very complicated.  If you don't know whether that person is born into one religion or another, it makes things complicated.  But it sounds like a pretty good sort of working solution to the problem.

I don't think we would have the same set of church-state problems we have today if it weren't for a weird quirk that happened about a hundred years after that solution, and that quirk was the idea of popular sovereignty.  The core idea that underlies all of our democratic states, the core political idea, is this idea that it's not that one person is the sovereign; it's that all of the people are sovereign. 

Then if all of the people belong to the same religion, it's still not so difficult to say that the religion of the sovereign is the religion of the state, because if all of the people think of themselves as Muslims, and let's say they're the same -- belong to the same school of Islam, then you could still say that the state religion is the religion of that group of people and nobody will make much of an argument about it.

But if the sovereign people are plural with respect to religion, if they belong to lots of different religions, now you have a very serious practical problem.  How can you have the religion of the sovereign be the religion of the state if the sovereign belongs to many religions?  And it's at that point, I think, historically, that you start to see people saying maybe the state should not associate itself with any religion.  Maybe there shouldn't be any official religion.

Now, I wanted to use that historical background because I think it helps for me to see why I think that not every country in the world needs to have the exact same arrangement with respect to religion and government.

To my mind, there are some principles that are universal and should apply everywhere -- this goes to Walter's first point about the Abrahamic religions and their universalism -- and others that could be different in different places.

The parts that seem to me to be universal are the ideas of a basic human right to choose your religion.  Not everyone in the world necessarily agrees with this, but almost all of the great world religious traditions claim at least that there's no coercion in their religion.  The Koran actually says this explicitly, which gives it one step up on the Hebrew Bible or the New Testament.  But all of the world's religious traditions talk this way, I think it's fair to say.  Not all -- in fact, none -- are very good at implementing this in practice. 

But I think that that is enough of a universal value to say that every state, no matter where it is, even if it has an official religion, ought to allow people the freedom to choose their own religion, and with that comes the right as well not to be discriminated against on the basis of your religion.  To me, that's a universal value.

What's not a universal value, to me, is the idea of a secular state.  To me, if the society wants to arrange itself because the vast majority of people, or even just a slight majority of people prefer there to be an official state religion, provided that they grant every individual the basic human right to religious liberty, I think that that's just fine.  I think England is a good example of this.  There the established church may not be very active today.  It may be very difficult to find people in Anglican churches -- (laughter) -- but it's nevertheless the case that the Archbishop of Canterbury is a politically significant figure, not just because he says things that get people riled up every so often, but because he is connected to the organization of the state in an important way.

Similarly, in many Muslim countries, I think it would be practically absurd and, in principle, unnecessary to demand that the state not identify itself as Islamic, because that is what many, many, many -- the great majority, in many cases, of the population wants.  What is not absurd, however, is to insist in those cases that such states respect the basic human right to freedom of religion. 

And in a country like the United States where we have tremendous religious diversity, it would equally be absurd to say that we should have an established religion.  And as a matter of fact, our Constitution recognizes that and makes it impossible, at least formally, for there to be an established religion.

So I'll stop there, without claiming to have resolved any of the complicated difficulties that analysis raises, but at least it gives a framework for thinking that there are some things that everyone should do in every state, some rights that everyone should respect, but that the arrangement of church and state could still differ very significantly from place to place.

HAMBURGER:  Well, I confess I largely agree with what's been said thus far and -- in pursuing the theme that perhaps there can be variety in the world that's perfectly wholesome and that need not trouble us.  I can't help, though, observing that it may be easier to figure out what should not be than what should.  And that leads us to the very sort of narrow range of objections to sort of bullying that we don't like, that can come in many forms.  But that still leaves open many, many possibilities.  And fortunately, England is just one of them, though amusing these days.

It strikes me that religion is often treated in this country as something distinct from the state, something to be kept apart from it, perhaps something even dangerous.  And I -- one of the things one has to worry about is that Americans tend to forget the degree to which the state is itself constituted by religion.

Now, politically we find this an anathema to a Christian nation, but in a more profound sense, this is inevitable, and any anthropologist would point out you can hardly discuss a society without getting into its religion.

The very notion of equal liberty has its foundations in religion.  Now, we can claim equal liberty, equal rights, as some sort of right.  But if it's any more than just a demand, if it's actually going to be a moral duty -- for example, if slavery is immoral, and you actually have a duty to resist it.  If suicide is immoral, you have a duty to resist that -- where are we draw these conclusions from? 

And Locke has a lot to say about this, for all of his failings as a serious philosopher.  Nonetheless, on this point, he comes as close to profound as he ever gets, I think.  And we are too quick to forget that without the religious basis for equal rights, we would be impoverished and we might still have slavery.  So religion is fundamental to the very liberty that we think we sometimes need to protect from religion.

Second, it strikes me that in all societies, and although I'm not an expert in the Middle East, I gather from scholars of the Ottoman Empire that there are a lot of sermons, even in the 14th century, that are very similar to Christian sermons being given at the same time about the role of religion as part of the social structure.  If you want a degree of freedom from severe laws, you'd better hope these moral constraints (is ?) a fairly successful sort.  And religion inevitably has its own way of accomplishing that.

And then finally, it was only recently that we have escaped the notion that we have a government ordained by God.  And in the West we may think we're above religion now -- almost, perhaps, above God.  But in most of the world, such heady thoughts haven't yet permeated quite so far.  And it strikes me that if we are going to talk about religious liberty, we have to keep in mind the fairly -- importance of religion, even to the secular state. 

But I'll stop there.  Thank you.

MEAD:  Very good.

Well, I'm taking away a couple of things here.  One is I've been reminded again of just the sheer diversity of relationships that exist between religion and the state, even in the so-called Christian, so-called West.  So we not only have England, where the queen can't marry a Catholic or become a Catholic.  In Argentina, the president of the Argentine Republic must be a Roman Catholic, something that caused Carlos Menem to get baptized. 

In Germany, the president of the republic can be any religion he chooses or doesn't choose, but if you do sign up for church membership, the state will take a percentage of your income in tax each year and give it to those the state chooses to recognize as the legitimate authorities of the religion which you profess. 

So we can find all kinds of varieties with -- and yet it's interesting that all -- that certainly Germany, Argentina, and Britain, if you asked most citizens of those states do you live in a secular country, they would answer probably yes.  And it's -- while Americans like to talk about how much more religious America is than, say, Germany, I've been reminded by a member of the German Bundestag there are actually more doctors of divinity in the German parliament than in the American Congress.  That may explain something; I'm not quite sure what.  (Laughter.)

But then also I'm reminded, listening to the panelists, that our visions of what is the proper relationship of religion and state are often profoundly shaped by our own religious views.  There's the story in Belfast of a guy who's whisked into an alley by masked gunmen who point a gun to his head and they say what are you, Catholic or Protestant?  He goes, I'm an atheist!  I'm an atheist!  The gunmen think for a second and they say well, are you a Catholic atheist or a Protestant atheist?  (Laughter.)

And there's a sense in which a society can be Protestant secular or Catholic secular or Muslim secular, and those are not always the same thing. 

And what I'd like to do is ask the panelists to explore -- I think this is building on something that Philip said, that in America, certainly, our idea of this separation of church and state, or the relationship, is profoundly based on the overwhelming sort of Protestant character -- and Noah's written about this as well -- of our people at the time of -- you know, in the early American republic.

To what extent is that experience -- you may have some thoughts here, too -- applicable to people of other religious traditions and backgrounds, or how do we have to reconsider what seems to us to be natural in terms of separation of church and state that would work differently in another culture with a different background? 

Would you like to start on that, Phil?

HAMBURGER:  Sure.  Something you may know, I have a certain distaste for the notion of separation of church and state because, by accident, I fell into studying it and, to my horror, found out more about American history than I wanted to know.  (Laughter.)

To put it very bluntly, it's attributed straight to Jefferson, but it's popular --because of theological prejudice, a distaste for Catholicism, particularly Irish Catholic immigrants, the goal was to separate the church from the state.  And it's far from being a minoritarian position; it's a majoritarian position.  It's about protecting the majority of free individuals and their direct relationship to the state from a church which would exert its influence upon the people and deprive them of their mental liberty, thus debilitating them from being good citizens.

And in fact, if you -- just think for a minute.  Which is the organization that most popularized this idea in the first half of the 20th century?  The ACLU?  No.  The Ku Klux Klan.  And once that settles in, you get the idea.

So this fits in with what Noah was saying earlier.  It strikes me that it's very dangerous for us Americans to go around the world talking in broad generalities that seem natural to us, but may be only because we haven't looked at ourselves too carefully.

Our most common generalizations are separation of church and state and democracy.  Well, God help us if that's what we're exporting, and God help the rest of the world.

Democracy isn't what we practice here and it's the last thing we should wish on anyone else.  Our Founders quite deliberately established a republic.  And when one talks about democracy in many parts of the world, it sounds like majority rule.  In fact, it could have an almost fascist implication in some parts of the world.  One has to be very, very careful about overgeneralization.

And by the same token, I think separation of church and state imposes, as Noah suggested, such a high burden on nations for which this is just incompatible, obviously incompatible with their history.  So the best thing we need -- and this fits in with the views of my colleague from Emory -- we need a little modesty, not only in contemplating religion, but also our own propaganda. 

There's an old line from World War I about propaganda: one will not quite persuade one's enemies, and almost defeat oneself.  And I fear separation leads us in that direction.

MEAD:  Abdullahi, would you like to --

AN-NA'IM:  Okay.  I think various ideas will determine that the secular state everywhere is distinctive, historic, and contextual.  I mean, there are no two identical secular states anywhere. 

So secularism, or secular states, and the question of the relationship between religion and the state and religion and politics, which I try to always emphasize are different propositions, this relationship is contextual and historical.  And therefore every society has to negotiate this for itself over time, and this negotiation can go one way or the other.

But I think the -- one point I would like to bring to our discussion is I think we tend to dichotomize too much the secular and the religious.  And the so-called secular-religious dichotomy I think is overstated because religion becomes relevant in the secular world.  It is not the abstract sort of sensuality.  It is -- the relevance of religion in guiding people live -- lies in this world.  And therefore there is an inherent connectedness between the two.

Just referring back to what this morning was being said about the Koran and about the possibility of reinterpretation and so on, Ali ibn Abi Talib, the fourth caliph and the prophets' cousin and -- for the Shi'a, he is the first imam.  He said the Koran does not speak.  It is people who speak for the Koran.

And the point is that the Koran is a revelation to me as a Muslim, is divine to me as a Muslim.  But as soon as it enters human comprehension, it become secular.  It enters into this world to tell me how to live my life in this world.  And because every comprehension of the Koran is a human comprehension -- of course the possibility that there is more to the Koran than what humans can comprehend remains in the realm of individual religious experience. 

But collectively, socially, we are always dealing with someone's understanding of the Koran.  That makes me nervous about calling the state Islamic.  I don't believe that the state was ever Islamic.  Not a single day.  The state is a political institution.  It is incapable of having a religion.

Whenever we give the adjective of a religious state to any state, what we are saying is that, as you said rightly, it is the religion of the ruling elite.  So once you see it is not the religion of the state as such, but the religion of the ruling elite, you see how dangerous it is to permit the elite to attribute their religious belief to the state which we all share.

I would rather have it for me to negotiate what role Shari'a has in society and in the state in a framework that ensures a degree of equality of human rights, of freedom of religion and other freedoms.  And the proscription, as Professor Feldman describes, is to say the state can't have a religion, but at the same ensure freedom of religion for everybody, is a contradiction. 

The very fact that the state identifies with a religion is, by definition, a violation of freedom of religion.  And for that reason, I will try to strive to keep the state neutral, realizing it is not easy.  It's a constant struggle.  And where in the realm of politics to enable people to identify religiously as also as citizens in a variety of ways.

FELDMAN:  It would be very boring for the audience if we all agreed on everything, so I'm glad that we're hitting -- the rubber's meeting the road here a little bit. 

So I'm going to disagree, first with Abdullahi and then with Philip, if I might, and the framework for my disagreement is the same in both cases.  And it's the observation that when we use words that are big, grand words -- which I usually --

I have a 2-year-old son, and I know I'm dealing with a big, grand word when I can't point to the thing when I define it.  Right?  If he wants to know what a chair is, I can point to the chair.  If he wants to know what religion is, I can't point to anything in particular.  The same is true of the state.  I can't point to anyone; there's nothing I -- these are true abstractions, right?

When we talk about abstractions, which we have to do because much of our world is shaped out of these abstractions, we're never defining them in some way that is objectively correct.  We're always injecting into what we say the way we think they should be.

When we say, "religion is," what we mean is religion is and should be.  The same is true when we talk about the state.  They're just two, the two that happen to be in play in this conversation.

Now, when we talk about can there be such a thing as an Islamic state, I understand that argument, the political and religious argument that says no, there can be no such thing as an Islamic state because Islam is a faith and the state is not a faith.  There can be the religion of the people who run the state.

But if all of the people who run the state and organize the institutions of the state say that their state is religious -- right? -- if they assert this and if they have institutions that exist in the real world that they administer according to these ideas, if there are certain people who are in charge of deciding on this aspect of the expenditure of funds with regard to religion, and this group of people who are in charge of that aspect of making sure that -- I don't know -- as in Saudi Arabia, that people attend the mosque.  You know, if you're in the marketplace and prayer time comes in Saudi Arabia, someone comes along and urges you to attend the mosque.  And if notice that you're not a Muslim, then they say oh, sorry -- you know? -- not you.

But if you have people these sorts of things, then it's practically useful to be able to say that you're speaking in the context of an Islamic state, and that's all I need, I think, for me to be able to say that people may speak of themselves as having an Islamic state.

Now, is there a certain contradiction between that and the idea that some citizens would nevertheless be free to exercise their religious rights? And here I'm going to turn to Philip.  So this is the point that Abdullahi made.  There is a contradiction here.

I agree that there's some tension, because if all the people who run the state are saying this is an Islamic state, the person who's a non-Muslim may feel marginal, may have the experience of feeling like, well, wait a minute.  It's not my state.  I don't fully participate in that state.  Right?  And I agree that that can be a subjective experience that the person will have -- will be likely to have.

If, however, they have that feeling, I don't think it follows from that that they are not free to act in the realm of their own religion.  They might not be free.  You might have a great tendency to take away their rights, but it doesn't necessarily follow, I don't think, that they are not free to act in the realm of their own religion. 

And let me just give a practical example of why this so, and here I'll turn to -- my disagreement -- this is apart of where Philip and I disagree.  Although I think Philip and I often agree on the bottom line, we almost always disagree completely about how to get there.  (Laughter.)

So if you look at the Protestant tradition of the separation of church and state, which Philip has done so much to elucidate, it begins with the idea that the state does have a religion, but that that religion demands equal liberty and free choice of religion for each of its citizens.  Right?  Now, not everyone in the Protestant tradition says this, but let's just take Locke, whom Philip mentioned, who for Americans, at least, is the most influential thinker about the relationship between religion and government, I would argue.  

Locke, in his famous letter on toleration, does say that there's no such thing under the gospels as a Christian commonwealth.  He thinks there was a Jewish commonwealth under the Hebrew Bible, but that because of Christian liberty, there's no such thing as a truly Christian commonwealth.  So actually he agrees with Abdullahi on that point.

But he's imagining that the Church of England will remain the established church, and he is imagining that government money and church money will be fully intertwined.  But he thinks that his own religion, which is the religion of the state, in effect, itself demands -- and he makes a religious argument for this -- itself demands that each person be left free to choose his own religion, because the religion wants free choice of faith, and not coerced choice of faith.

Now, does that make separation of church and state a Protestant idea?  In some sense, yeah.  Yes, it does, in America.  And once you see that it's a Protestant idea, it's impossible to disentangle it from a long strain of anti-Catholicism in English-speaking Protestantism.  And so when you look at the historical materials, as Philip does very well in his very important book on this subject, you see, and what do you know -- the same people who were advocating religious liberty are also not in favor of the Catholic Church -- which, they note, as late as the 1860s and '70s says that, quote, "Liberty of conscience is a delirimentum."  Walter's Latin is better than mine, but it's nothing good to say that something is -- it's a, you know, a false imagining.  Something that you ought not to believe.  Right? 

So there's an actual disagreement there on whether the liberty of conscience is in fact an important value -- and, of course, the Catholic Church has changed its view on this radically since that time, and that's wonderful.  But the fact is that once you acknowledge in a historical sense that there is something distinctively Protestant about this development of separation of church and state, you find all the nasty stuff, too.  But that's okay -- and this is where Philip and I disagree.

You find the nasty stuff -- and he's right that it's there, but that doesn't trouble me very much, because all traditions of thought, whether they're religious, secular, or otherwise, have this nasty stuff caught up in it.  So when I read the new atheists, as they are -- they're sometimes called, you know, these writers who get so much attention these days who are, in fact, amazingly similar to the atheists of the 1870s and '80s. 

I mean, in fact, almost all of the arguments, with only a few exceptions, can already be found in those earlier texts.  So once a century they get their chance to really, you know -- (laughter) -- flex and stretch their muscles, and that's probably a good thing.  They're focusing on nasty things that religion has done, and it's almost never the case that they're wrong.  The nasty things they say religion has done, it has done.  But so has every other ideology. 

I'll leave it there.

AN-NA'IM:  Can I --

MEAD:  Sure.

AN-NA'IM:  I'm saying just about the -- because when you say when all the Muslims of a country say that we want our -- or say to me -- Muslims never agree on anything -- never agree.  But the day the prophet died, and before he was buried, Muslims disagreed about how to succeed and who to succeed.  So disagreements have been -- (inaudible) -- you will never agree and you will always disagree, and it's only God in the next life who will adjudicate your differences among you; several verses to this extent.

So the point is that my problem with a -- Islamic state is that what does Islamic mean?  When we cannot agree on what Islamic means, using the term is confusing; in fact, dangerous, because it hides all the nasty stuff that he was talking about behind this veneer of Islamic, so that it becomes harder to challenge it.

He gives an example of Saudi Arabia.  In Saudi Arabia, there is a significant minority of Shi'a in eastern Arabia.  I don't like to say Saudi Arabia.  I like to say Arabia.  How can you name a country after a family?  In Arabia, there is significant Shi'a in the east to whom the Wahhabi doctrine of the state is a heresy, and they are obliged to live under this heresy as the law of the state.

And when you see that Iran is an Islamic state and Saudi Arabia is an Islamic state, what will it mean when, to each of them, the other is a heresy?  So the term Islamic becomes totally incoherent.  You know, as you travel in the region, you will find that people call Islamic law -- Islamic sort of -- (inaudible) -- the term is overused that there is no thought as to exactly what we mean by it.  And when we look closely to what we mean by it, we see that no Muslims of any country will agree on what their state is when they call it an Islamic state.

All of this is to be in the realm of politics.  And that's why I will say let people affirm their Islamic identity and values through politics, but not through a state institutions, which is what I need to have for it to be possible for me to negotiate Shari'a in politics.

MEAD:  Philip.

PHILIP HAMBURGER:  I'm not learned enough to take a position on Islamic law such as Professor An-Na'im just did, but in defense of -- of his position against Professor Feldman's, I must say I fear that Professor Feldman, in defense of his view that there should be possibly should admit there to be an Islamic state, looks to Europe to say, "Well, there are Christian states there."  And it strikes me that, at least in the Anglo-American tradition, which is the freer part of the European tradition, that's not so clear.

So, yes, there would have been a social establishment of Christianity, particularly Anglicanism in England.  And, yes, the monarch is the head of the English church, but if one looks at the theological and political writings of the late 17th century and early 18th century, defending Anglican establishments, the writings that Americans look to and understand, the argument isn't the state is religious, let alone that it's Protestant, let alone that it's Anglican, but rather that there's an alliance between church and state.

So even in the English church's own writings, it's not asserted that there's an Anglican church -- I'm sorry -- an Anglican state, except in the strongest -- (inaudible) -- Tory writings.  In the mainstream English writings, for example, by Bishop Warburton is about an alliance of church and state, in which he does very interesting Madisonian-style reasons.  And so it's really, I think, much more cautious.  So I don't think we can look to Europe and say, "Well, that's what the Europeans did.  Therefore, we should be comfortable with a religious state elsewhere."

I'd also like to disagree, much as I appreciate Professor Feldman's views on this, with his casual use of separation of church and state, as if that is what we're talking about when we talk about disestablishment.  Disestablishment and separation are very different metaphors.  Establishment is about one object elevating another, and therefore it's about a restraint on the government elevating the church.  Separation of church and state, which we think of horizontally, it's about keeping apart two institutions, and necessarily it limits both.  And instead of talking about religion generally, it focuses on organized religion rather than individual spirituality.

So it seems to me, yes, a lot of violence has been pursued in this country even in the name of separation of church and state, as well as in the name of religion.  But that's not our ideal.  Our ideal is actually quite carefully drafted in the Constitution.  It's about disestablishment.

And then, finally, I can't help talking about violence, since that's what lies behind so much of this, right?  We're not talking about violence -- "Let's have some fun" -- because violence has its fun aspect, unfortunately; we're human, and we indulge in it occasionally.  So if it looks back, as the Supreme Court likes to do, they'll say, "Oh, we have to be careful of divisiveness and religious violence," and they allude to Europe, particularly the happy years of the 16th and 17th century when there was a lot of violence.

It's by no means clear that religion has a monopoly on this.  In fact, religion turned out to be rather inefficient.  The Inquisition only killed a few thousand people.  What were they up to?  Their mind was on God, not on the efficiency of killing.  And it strikes me that the secular state in the past century has really done a much better job of it, if you're into that sort of thing, which gets to the larger set of issues, I think, here that we haven't yet discussed, the relationship, as it were, social structures, if we include religion amongst these.

So let's not talk about religion.  I agree with Professor Feldman about this.  It's an amorphous concept.  Let's think just for a minute; not say this is what religion really is, but about unrealistic aspirations for purity and transcendence.

Now, if that is part of the human condition, how should it be pursued, with unrealistic aspirations for purity and transcendence in this world or another world?  And which is more dangerous?  I don't know that I know the answer.  But it's by no means clear to me that pursuing those unrealistic aspirations in another world is more dangerous than in this world.  And I think, sadly, the comparisons to the Soviet Union and the proceedings of the 16th Century illustrate that.

MEAD:  All right.  Boy, well, you certainly know how to bring the fun into a gathering.  (Laughter.)

HAMBURGER:  I don't like violence myself, but it's fun to talk about.

MEAD:  All right.  Well, I think, speaking of fun, maybe it's time to give the audience some and open this up for questions.  Again, I'd like to remind you that a question is a statement which can be grammatically ended with a question mark.  (Laughter.)  One can usually tell one's being asked a question by sort of a rising inflection that comes at the end of the sentence.  And questions are, generally speaking, rather short.

So if anybody has questions, please raise your hand.  We'll bring a microphone to you.  State your name and your affiliation for the sake of those watching by video.

QUESTIONER:  Charles Harper, John Templeton Foundation.

I want to state a thesis as a question for all of you.  Do you think that strategically, for the Council on Foreign Relations and the United States generally, that this issue for intellectuals of clarifying the difference in religion between a situation before and after an American-style politic -- constitutionally of the separation of state power from religious culture, do you see that as something that's vital for American intellectuals to engage with in the world to clarify what the American experiment and experience has been?

MEAD:  So if I rephrase that, gentlemen, does your life's work have any meaning or purpose?  (Laughter.)  Anybody want to jump in there?

FELDMAN:  One think that I think is fair to say is that, though it's obviously crucially important in the American realm for us to understand what we're doing ourselves domestically, we shouldn't draw the conclusion from that that once we've figured it out, then we'll have something we can hold their hands and export.

I mean, one of the weirdest experiences of my life was sitting in the Green Zone and hearing U.S. government officials, who were aligned with the political movement of deeply skeptical of, for example, the idea of a secular state -- we don't have a secular state here -- saying things like, "The most important thing we have to keep in mind for the new Iraq is that there must be a strictly secular state."

First of all, it bespoke a willingness to sort of imagine something on the U.S. side that they themselves denied exists on the U.S. side.  But second of all, it bespoke this idea that they knew exactly what we had in the United States and we should export that.

So I want to (exploit ?) all of that -- (inaudible).  I think the other panelists do too.  We do want to understand what we have here.  We want to understand the fights that we still have in the United States, the lack of clarity that we have.  And then we want to realize that whatever the lack of -- (inaudible) -- that we have is, that's probably not the suitable thing to impose on anybody else.  At least that's my own view.

MEAD:  They should have their own lack of clarity.

FELDMAN:  Exactly.  They should have their own version of confusion.

And this is the last thing I would say.  I mean, a constitutional tradition that works is one that is in a constant state of dynamic evolution.  You have a written constitution that says "x," but no constitutional system works if it just follows what's in that written constitution and never changes.  Interpretation gives it the freedom to change.  And if it doesn't even have a text, so much the better, often, because then you have a little bit more freedom for the dynamism.

So everyone's going to have some complex dynamic unresolved form of the relationship between religion and government, but they shouldn't all have the same confusion.

MEAD:   Abdullahi, do you want to --

AN-NA'IM:  I was going to -- I am from Sudan.  At this point I am an American citizen, but I am from Sudan and am formed by being from Sudan.  And one term or concept, idea that has not really been raised much is colonialism.  Much of what we see is post-colonialism, that it is more informed by colonialism than it is by anything else about Muslim societies and their history.

The Islamic state discourse is a post-colonial discourse, because one position that we have not clarified, what do we mean by the state?  The form of state -- the type of state that we now live with is a European model of the state.  And the idea of law that Muslims -- when Muslims talk about an Islamic state before Shari'a, they think of it as Shari'a as positive law; European idea of law, European idea of the state.

So it's a contradiction, I think, to claim to affirm Islamic identity through two European institutions, the state and law.  The type of state that Muslims lived with historically is a very different type of state than the state they are living with now in the post-colonial.

Now, coming to the American, also one question.  Iraq was mentioned a couple of times.  But the fact is that Iraq has been a colonial experience; that is, the United States has colonized and is still colonizing Iraq.  Iraq is not a sovereign state now, as we speak.  And probably in my book, the biggest moral failure of the United States since the Second World War has been the invasion, occupation and colonization of Iraq.

And this event, if we can call it an event, has done sort of horrendous consequences for decades to come and outraged, completely outraged, that we can talk about it as if it is something that happened and, okay, we'll just now deal with the consequences.  No, it has to be condemned for having happened in the first place.  And thus, having had to be condemned for having done it, now the impulse is the Americans go out in the world to engage in conversation about the American experience -- absolutely fine, wonderful.  In fact, we do this all the time.

I studied constitutional law with an American professor in the 1960s in Sudan, and I learned a lot from him.  And I continue to learn from my American experience.  But if you send your armies to missionize for your view of what freedom of religion is and what church and state is, that's completely unacceptable and utterly counterproductive.

FELDMAN:  Just for the record, I mean, we did invade Iraq; there's no question.  And there's no question, further, that our presence there has features that are in common with colonialism, or with imperialism maybe more precisely.  But if you look at the constitutional structure that emerged in Iraq, it has nothing to do with the U.S. constitutional structure.  I mean, for better or worse, it makes Iraq an Islamic state and says that no law passed may violate the judgments of Islam.  I mean, it says that when it comes to family law -- I mean, you can say these are terrible things.  I think you do think they're terrible things.  But whatever they are, they're not American things.

AN-NA'IM:  No, but the fact is that it was drafted during an American occupation, that the people of Iraq -- I mean, the question is also Britain colonized Sudan and Uganda and Kenya; I mean, most of African states.  And it was -- and the French did it too.  At the end of the colonial period, they drafted a constitution in Lancaster House in England for the new state to just go on and become independent and sovereign as of today, because we have made you sovereign.

When our secretary of State sends a letter to the government of Iraq to say that "We have your sovereignty for a year.  Here, have it back.  But we will keep 150,000 troops heavily armed under foreign command who will protect you from your own population, but you are a sovereign state."  The constitution of Iraq has not happened.  And the fact that you have a document called the constitution of Iraq is not and does not make it the constitution of Iraq.

You know, constitutions are not made in documents.  Constitutions are hearts and minds of people.  And until the people of Iraq have the freedom and the stability and the ability to draft their own constitution completely free, without any foreign advisers, without technocrats telling them how to draft this or how to work it out or not work it out, it is not a constitution.

MEAD:  Well, I think -- let's try to -- points taken, but let's try to keep this on the broader agenda of responding, I think, to the question of, you know, the validity -- sort of the importance for American foreign policy of trying to understand this issue of religious --

HAMBURGER:  I do want to get back to the original question.  I just cannot help engaging a little bit on this point.

MEAD:  Please don't.  (Laughter.)

HAMBURGER:  One sentence.  It's simply that if one takes everything that Professor An-Na'im just said as true, it just does strike me that we won't have to worry that the colonial discourse tends to lead us only to look at some tragedies and not others.  And I think if one's really to be concerned about the people of any nation in this world, as a human being, one has to recognize disasters can happen from any direction, including from within, and that's certainly been the case with Iraq.

Now, getting back to the question, though, it strikes me that, yes, we do need to be engaging.  I almost agreed with Noah there until he went on about the living constitution, and then I had to back -- can't win 'em all.  It strikes me that we have had a remarkable experience here, perhaps just by accident.  None of us in this room, I think, can take credit for it, but we have lived in a genuinely blessed country in a blessed period of time where it is just not normal in human experience to have what we have in the United States.

And by whatever grace that is, I think it is worth talking about.  It's worth talking about with all the caution that my colleagues have mentioned, because we don't know which elements are essential, and there's a danger we will misstate it, so we need to be very modest about it.  And it may be that we should not impose this; that's surely true.  And yet, at the same time, just to show the model of living, a Lutheran pastor once explained to me how he reached his congregation, and he said to me, "I don't have a congregation; I just try to live right, and people notice that."

And we can take the same approach.  But I think, at the same time, one can't just live right.  One has to talk about it.  And, yes, we need to be engaged with a sense of prudence, with a sense of the diversity of the world, but sharing at least the model so that people can adapt from it what I think they will undoubtedly find deeply attractive.  And frankly, people across the world do.

MEAD:  And I would probably add, from the standpoint of the Council on Foreign Relations, or at least some of us here, we think that certainly since September 11th, but a lot of events before that, have raised the importance of trying to get a clearer understanding in the U.S. of how our own traditions have evolved in this respect and then trying to understand better where those do and don't intersect with the experiences of other societies and what usefully can we do to try to advance some of the universal values that Noah was talking about in these very different contexts.

Sir.

QUESTIONER:  Jim Dingman, INN World Report.

When one travels to Europe, one's constantly confronted with the question of "What are you Americans doing letting these fundamentalist Christians dominate your foreign policy?"  All the time last fall, I got that continually.  And we know that operationally that influence has been realized in the HIV-AIDS policy of Bush's administration in Africa.

And I wanted to get your take on that and also how people in Europe are perceiving how religion is in the election process.  For example, we've had three weeks of Jeremiah Wright being thrown at us, and that has, of course, been perceived differently in Europe than in the United States.  I wanted to know how you see those things.

FELDMAN:  We're on the record, right?

MEAD:  No, go right ahead; sounds like you're itching to go.

FELDMAN:  Well, I mean, look, on the first point I would say welcome to participatory democracy.  There are all these foreign policy elites; some of them may be in this room.  Some of the people who helped create this room, who think that it might not be such a good idea for the general democratic population -- here I mean democratic, not a small "r" republican -- to be involved in foreign policymaking, right, because they think, "Wow, what happens when that happens is that all those people out there have these views that we elites don't agree with will impact our foreign policy -- yuk."

Now, you know, one of the costs of the democratization of foreign policy in the last 115 years, which is itself in part of a very complicated story that Walter has told part of very brilliantly of post-Cold War changes in the way foreign policy is shaped, one of the consequences of this democratization of foreign policy debates is that constituencies that historically didn't do that much or weren't able to do that much to affect our foreign policy now can and do.

I think that in many particular cases -- the one you mentioned is a good one -- I don't agree with what that particular constituency wants our foreign policy to be.  But I completely disagree that it somehow follows from that that public voices should be excluded from our foreign policy judgments.  I think if you're serious about being a democracy, you need to acknowledge that.

And when you make your foreign policy, you have to think seriously about the fact that that foreign policy is now going to be shaped in the long run by what the general public believes.  I think that's got to be now part of the foreign policy calculus.  When you decide to do something, you can't think, for example, that the next administration, even if it's of a different party, will do just what you expect it to do.  That's a mistake, I think, now in foreign policy, where then maybe it wasn't the case in certain aspects of the Cold War.  So that's on the first half of the question, and I'll leave Jeremiah Wright to my colleagues.

HAMBURGER:  I just want to comment on the notion of fundamentalists anywhere.  Who are the fundamentalists, right?  Fundamentalists are a small group that are more generally known as evangelicals.  The number of fundamentalists in this country who were actually traditional fundamentalists are tiny.  I mean, how many premillenarian literalists are there in this country?  That's not most evangelicals.

And so when people criticize fundamentalists, they're revealing a certain theological ignorance, I fear.  And what particularly worries me is that this is a theologically (inflected ?) term.  This is saying some people believe in fundamentals.  In other words, they believe in orthodoxies.  We are theologically liberal.  The implication is, "And we don't have orthodoxies."  And somehow this gets into class distinctions, too -- the educated versus uneducated and the rest.  And so I think we have to be very careful with labels.  Most evangelicals are highly individualistic.  Most of them are not fundamentalist in the traditional term.

And just a final thought here.  Since I am interested so much in the bullying of religious minorities, we would not ordinarily take the label for a small minority and treat that as a label for some sort of social ill or theological ill.  You know, if you're worried about some sort of habit that you associate with a particular religion, you wouldn't say, "How Protestant of you.  How Catholic of you.  How Islamic of you.  How Jewish of you."  We think how prejudiced that would be.  But we don't hesitate to say, "Gee, that's very fundamentalist," and we're not even talking about fundamentalists.  We're using minority label.

And so I just feel a lot of these criticisms don't even understand the theologies involved.  Now, it may be right, as Noah points out.  Perhaps we might disagree with the policies.  But that's a different issue altogether.

MEAD:  Yes.

QUESTIONER:  (Inaudible.)

MEAD:  I have a feeling we'll come back to Jeremiah Wright.

QUESTIONER:  I'm definitely not Jeremiah --

MEAD:  He'll take care of himself.

QUESTIONER:  Thank you.

I'd like to ask you to express an opinion.  Mr. Ratzinger, who has chosen the name of Pope Benedict XVI --

MEAD:  Are you a Protestant, by any chance?

QUESTIONER:  There's a chance.  There's a chance.  I'd like to ask you to comment on this too.  And I know you're the fair-minded moderator here.  I will not try to quote him, because he did it in Latin and my Latin is not that good.  But he said at one point here three or four months something to the effect that he would support the building of mosques in Rome when the Saudi government permitted the building of churches in Riyadh.  Would you comment on that?

AN-NA'IM:  There is so much more to the Muslim world than Saudi Arabia.

QUESTIONER:  (Off mike.)

AN-NA'IM:  (Laughs.)  Because he said Riyadh, so -- at least to be clear.  I made my point about the family and the country.  But now what I'm saying is this.  I noticed also this morning already that there is so much focus on the Middle East as if it is representative of the Muslim world at large.

The Arab Muslim region is about 10 (percent) to 12 percent of the total Muslim population -- 10 (percent) to 12 percent.  There are more Muslims in sub-Saharan Africa than there are Muslims in the Middle East.  There are -- India is the second-largest Muslim country in the world, or third, probably, when you compare it to Pakistan.

The point is that so much Muslims and Islam historically, as well as currently, are not anything to do with the Middle East; in fact, quite different, very much different, that -- so that I think for the pope's remark, I think it is unfair to sort of prejudge Muslims' attitudes about churches and Christian-Muslim relations and so on by what goes on in Arabia or Saudi Arabia, as your choice.

In that sense, the point is that also, I would say, I would hope that a pope would be more visionary and more leading the Christians than this tit-for-tat attitude.  He should say that "I would support building a mosque in Rome regardless of what" -- because he should be driven by his own religious conviction as a Christian, not by what -- and this is exactly what Muslims are doing now when they are (ranting ?) against the United States and condemning everything that's good about this country because they hate some aspects of the foreign policy of this country.

What the United States does or does not do should not define what I do or not do and my right as a Muslim.  And I would hope that the pope would think "What does my religious conviction as a Christian leader lead me to do about mosques in Rome?" rather than being defined by what Muslim leaders do or prefer to do in other countries.

MEAD:  I suppose the king of Saudi Arabia might also reply, "We'll separate mosque from state in Saudi Arabia when you do it in the Vatican, your holiness," and see what he gets.

QUESTIONER:  Hi.  Assam Rehman (sp), Muslim Bar Association of New York.

Just to take advantage of the fact that we have three law professors, I wanted to ask your opinion on the role of religious judicial bodies.  This is something that was discussed earlier this morning, but perhaps each of you can comment, because, for example, Professor An-Na'im, you talked about keeping religion out of the institutions.  How does that concept inform the existence of a judicial body or even a scholar who is empowered by the state to adjudicate matters?  Professor Feldman, you wrote about this recently.  I'd like to get your views as legal experts on that matter.

(Off mike commentary.) 

AN-NA'IM:  Okay.  You might be surprised, but I am opposed to what the archbishop has proposed.  I think it is bad for the state institutions to enforce religious adjudication.  Religious adjudication and other types of adjudication happen all the time.  And we can never stop it, and, in fact, we can encourage it.

My objection comes when you involve a state institution in enforcing the outcome of -- (inaudible) -- our situation.  If it is freely chosen by the parties, you can have types of issues where that happens outside the state institutions, and it will happen outside the state institutions, and it is good that it happens.

But implicating the state institutions into enforcing religious adjudication is dangerous for the state and for the religion.  Now, one point is that when -- say, if you have a Shari'a-based arbitrational family dispute in Britain go before English courts to enforce, is the court going to review only the procedural aspects, or is it going to review the substantive aspects?  Or is it going to enforce based on the authority of those who adjudicate it without questioning looking into what really went on and what are the issues?

Now, is an English court competent in Shari'a to be able to review adjudication outcomes?  If it is not, is it going to enforce an adjudication that it has no way of evaluating in terms of its good or bad nature, and so on?  Now, the point is that the realm of community life are very much -- I think my sense of separation of church and state, as you said, is protecting the state from religion and religion from the state.  And in that light, I would be opposed to enforcement of religious education.

Now, another point to add; I don't know how much time -- time, of course, is short.  The thing is, what is the Shari'a authorization for this selectivity, because if what you are doing is enforcing Shari'a, Shari'a has a lot to say on everything.  How come that you choose this particular limited issue and exclude all other issues on which Shari'a is as authoritative as it is on this issue?

In the sort of Ontario case, the same proposal was made in Ontario.  And the proposal was made excluding custody-of-children issues.  Because custody of children is a federal jurisdiction, so they were saying in Ontario, "Let us do it in other issues, not with custody of children."  How can you deal with a family dispute without including custody-of-children issues as a factor simply because the state structure is such that this is outside the realm of the provincial?  That is the sort of confusion that is bound to come through if you try to do this sort of thing.

HAMBURGER:  If I could just add a word here, for 480 years the law of the land has had complete obligation, within the jurisdiction of the common-law nations.  There is no room for a distinct jurisdiction independent of it.  And although in England church courts can be authorized by the state, it's always under their complete authority of the law of the land.  And that's just fundamental.  That's why our constitution refers to the supreme law of the land. 

And I agree with Professor An-Na'im.  It's very, very dangerous to start breaking that down.  That can go in a lot of different directions.  This was the split between the Catholic Church in England in the 1530s, and there's just nothing as fundamental as the complete force of the law of the land in jurisdiction.  And we're familiar with this in many areas, in questions of race, questions of religion and so forth.

There is some room for contractual arrangements by which individuals put themselves into someone else's judgment, be it religious or commercial, right?  But the secular courts must always have competence to decide the matter ultimately.  And to inquire, which is genuinely voluntary, there's potential for this to go in a very dangerous direction, and not, incidentally, to the advantage of Muslims.

FELDMAN:  Here I disagree with my colleagues.  To me, this question comes under the general category of things you could do differently in different countries, provided that basic human rights are respected.  And I would note that in his pretty tentative speech, if you actually read it, which obviously very few people have done -- in this room I'm sure many have, but in the world, very few people have done -- the archbishop of Canterbury spoke of, first of all -- the background assumption of the talk was that, of course, the laws of the state would ultimately be the ones that authorized the local court -- the arbitral body, and that the state law would be the supreme law of the land.  He was very explicit in this respect, and he also said very explicitly that equality of men and women would have to be respected, that that would trump any particular Islamic principles, and so forth and so on.

Now, I think it's worth noting the difference in approach -- and this goes back to the previous question -- between Pope Benedict and the archbishop of Canterbury because they both lead -- once much larger, but they both lead big Christian denominations -- when it comes to dealing with the question of Islam.  Pope Benedict's verbal practice thus far and his experience have been to be, let's say, on occasion sharply negative about aspects of Islam.  That has brought him a lot of opposition in the Muslim world, but it's been pretty good for him as a sort of political move within Europe.  I think it's fair to say that he has strengthened himself within Europe as a result.  An interesting strategy on his part, especially given that he has said explicitly when he became pope that one of the dangers for the church is becoming irrelevant in Europe.  So it turns out that being sharply negative about Islam is a very effective technique for making yourself a player in the contemporary European environment.

The archbishop of Canterbury --

(Cross talk.)

MEAD:  -- could maybe take a lead --

FELDMAN:  -- yeah, it's interesting.  Yeah.

The archbishop of Canterbury, by contrast, gave this very tentative and scholarly lecture in a pretty academic environment and all hell broke loose.  You know?  I mean, they were calling for his resignation.  And you know, he's been handling some pretty sensitive matters over the last couple of years that -- the Anglican community is not without its difficulties, as we know -- but nobody, as far as I know, has made as open, as loud, as angry a set of calls for his resignation as came over this one speech.  So there's an important lesson there about the political climate in Europe right now.  Say anything that might be construed as in some way -- and the archbishop was very explicit -- he was trying to experimentally think of ways to reach out to the Muslim community in England to make it feel fully a part, and you can think that that's a mistake; you can think it's wrong -- but the spirit of the speech I think is pretty clear, and look at the consequences. 

MEAD:  Okay.  We have a question from one of our very patient webcast viewers that I'd like to interject here.  This is from Rene Lape (sp) at Friends Academy, who asked, "Regarding the relationship between Christian believers in the United States and the state, when it comes to issue such as the prohibition we have always had on men having more than one wife, a rule strictly related, it seems, to our identity as a Christian nation, how do you see the role of the state in defining the nature of marriage -- whether we're speaking of same-sex marriage or monogamous marriages?" 

So, I guess behind that is the notion that religious presuppositions inform the approach of the state to such basic matters of family life -- is this appropriate? 

MR.     :  (Off mike.)  (Laughter.)

AN-NA'IM:  I'll try briefly.  I think it is legitimate that every society's legal order -- codes of family law included -- would reflect its values, its culture, its religious beliefs included in that.  But the point is that certain -- as it is enacted as law by virtue of the will of the state and not by virtue religious authority.  So monogamous marriage is now part of the -- of course we are clear, all of us, that the origin or the underpinnings of this are Christian or particularly at least some interpretation of Christian dogma, but the point is that it is family law by virtue of the will of the state, not by virtue of divine command.

If that is the case, then it can be changed, too.  Not that we are going to have polygamous marriages, but the point is that we are dealing with the secular world.  My view is that in Islamic-majority countries, family law also should be secular law and should be seen as such; that you have a family court.  If the peoples are Muslims, their values will be reflected in that court, but there is no confusion that what the law is is the rule of the state and not the religious commands according to some interpretations of it. 

So, in that sense, we can have polygamous marriage or not have this divorce or that divorce -- all of it as secular law so we can change it.  But once we say, "This is Shari'a," then what can we do about it?

MEAD:  So in some countries one can have multiple wives; in this country we have multiple conceptions of marriage.  But these come from the democratic system of politics.  And underlying this and the prior question really is the matter of women's rights.  Right?  To what -- whether we're talking about polygamy or we're talking about Shari'a is introduced as a set of -- a subpart of the legal system as to family matters, the concern that I think many people rightfully will have is what will happen to the woman as an individual?  Will her rights be fully respected?  And to what extent will her freedom remain under such a system?  And given the role of the equality of women generally one might say in the development of the set of political systems and freedoms that we appreciate -- and it's been a central part, frankly -- women's rights have been a central part of the movement against slavery in this country and in changing our polity I think in ways that are on the whole rather wholesome.  We ought to be very, very careful about inviting what might become instruments of undermining this.  In fact, if there's anything we can do for the rest of the world, it will be to remind the rest of the world that in fact half the population -- many parts -- are excluded from full participation as citizens.  And, to put it mildly, that's a shame.

Yes, in the back?

QUESTIONER:  Yes.  Eric Gregory from Princeton University.  I'm an academic, so you'll forgive me if I worry this is getting to concrete.  I'm going to ask an abstract question, and it was provoked by Professor Hamburger.  I think as a matter of intellectual history, the concept of the secular and even human rights and even the separation of church and state have their soil in theological and religious sources.  And you said that we would be impoverished today without those religious motivations to regard people as equal, et cetera.  Do you want to go further and say they're actually necessary and required?  And I wasn't sure if you meant that as a philosophical argument, as a sociological argument or as a historical argument.  Can we tick away the God talk as long as we have the constitutional practices and democratic republican institutions, or is religion necessary for the defense of human rights?  It's the question about Locke, really. 

HAMBURGER:  Yeah.  It's a good question.  It's an -- I don't know the answer, and I fear that we're living through an interesting experiment.  We won't know probably for a little while -- I hope not to live long enough to find out.  But this is the division between America and Europe, right?  And if we think -- I don't think America has ever really been the same as Europe, but there are some commonalities.  And if one looks at the fate of Europe and the fate of the United States, we each have our problems, but their problems may turn out to be more fundamental precisely because they place such a burden on their mere humanity, and that is more than most societies have survived.

I don't want to suggest that nothing -- you know, it isn't possible.  That would be going too far, right?  We have no evidence for that.  But if one looks across history -- and of course, we only have a few thousand years of detailed evidence -- but if one looks across history, it's difficult to find a society which really gets very far, survives very long without some outside source to define and give stability to what we loosely call -- politely call "values," right, but which actually have to be a little bit more magnetic than that.  So I don't really know, but I'm -- although personally an optimist, professionally I'm a pessimist.  (Laughter.)

MEAD:  Yes?  Wait for the microphone.

QUESTIONER:  Paul de Vries with New York Divinity School.  I'm also on the board of the National Association of Evangelicals.  It puzzles us that we've had such a giant influence on foreign policy.  We look at many of our attempts to affect foreign policy in terms of restricting sex trade, nonviolent conflict resolution, creation care, environmental issues to be part of foreign policy and so forth.  And perhaps the -- (inaudible) -- list several more, perhaps the only success was the AIDS program that Bush pushed in Africa. 

But I guess the question -- we represent directly 20 million evangelicals, and indirectly probably equal number.  What can we do to wake up Washington to what we see as the eternal values?

MEAD:  How can evangelicals get more political influence?  (Laughter.)  Who wants to answer that?

FELDMAN:  I'll say something about at least the first part of the question -- how it's a surprise.  It's sometimes a surprise where one has influence and where one doesn't have influence. 

I think one of the key rules of American foreign policy is that if you pick an issue that nobody really feels strongly on the other side of, or at least where the opposition to you is not well organized and where no really fundamental national security interest is on the other side, that's where you're likely, in the first instance, to have a lot of impact.  Right?  I mean, this is a key point in understanding the role of the pro-Israel lobby -- both the Jewish pro-Israel lobby and the evangelical pro-Israel lobby.  Walter has written recently in an interesting review of Mearsheimer and Walt's book about this phenomenon.  It helps if you're advocating for something and no one is very organized in advocating on the other side of that issue.

In terms of how, though, one has an effect or a group of concerned citizens have a big effect where the national security interest doesn't obviously align with what they're pushing for or where there are other strong interests -- especially corporate interests -- on the other side, there the thing about our republican democracy is that the push really has to happen at the level of individual congresspeople.  I mean, that really is the way it works.  And although, for example, we speak of the tremendous corporate impact on our politics, which is enormous, that is accomplished via the mechanism of targeted support for particular representatives and senators.  That's our version of what we don't consider to be corruption.  I mean, at the margins it can become corrupt, but the American approach for better or for worse is to say money has a huge impact, so let's create a legal channel for money to have its influence so that it doesn't have its influence through non-legal channels. 

That may be a terrible mistake -- and again here, the European example is an interesting contrast where there's at least in many places in Europe a serious attempt to avoid the influence of money in politics, and yet there doesn't seem to be the kind of corruption that one sees in some other places.  That's an interesting contrast, and especially whether we could achieve that is I think the central question and the question of campaign finance reform. 

But that's really my view:  You do it by identifying particular people who are vulnerable and trying to get them elected or not elected. 

MEAD:  Okay.  We have time I think for one more question.

QUESTIONER:  I'm Sayed (sp).  Once again, I just wanted to make a brief observation in terms of open societies.  If both religion and the secular-minded groups are so much strongly in favor of open society, what is it that makes this a difficult thing to be realized?  Are we not looking at the moral aspect of it, or is there something else?  Thank you.

HAMBURGER:  Well, if I may, I feel that too often both secular attitudes and religion are used, right?  In the particularly in the democratic style government, religion is used to mobilize passions -- sometimes for good; sometimes for evil -- and so too, fears of religion.  And so it may be that the civilized conversation we can have here is not easily replicated out there simply because of the nature of politics, getting people mobilized, the way that Noah suggested.  So it may be something we just have to live with, which would be sad, but I don't have a solution. 

FELDMAN:  I think part of it has to do with the way that in politics no one is ever satisfied with just winning a particular debate.  If you can win a debate, you then want to move the goalposts to increase your chances of winning the next debate.  And I think that's where the real potential for conflict actually happens.  It's not just -- I mean, there's of course conflict if two different groups see an issue differently and they argue about it and they're each trying to lobby their congressman to get certain results and one wins and the other loses -- yeah, that's ordinary political fighting.  But rarely do they stop there. 

So we have constitutional politics, for example, where secularists -- legal secularists, as I sometimes call them, argue that religion should not be allowed into public discourse and then try to create constitutional rules that will make it harder -- will raise the barrier for religious folks to participate in that debate. 

And on the other side, you might have situations where people you might call "values evangelicals" -- I don't mean literally just evangelicals but people who evangelize for values -- also want to change the constitutional rules so that for example, state funds can be used to sustain their institutions, which will enable them to do a better job and win more future political debates.  And that's where I think you get the really heavy fighting.  And I don't think there's any solution to that.  I mean, this is an answer to your -- to try to be a direct answer to your question of why don't we all just get along.  (Laughter.)  It's because we're all trying to harden our advantage for the next time out. 

But that's just what constitutional politics always looks like, in my view.  And the test of a successful constitutional polity is that you keep that fighting within some bounds, and usually the bounds are nonviolence.  (Laughs.)  That's a pretty good bound to aim for.

AN-NA'IM:  So, just to close by saying that I can agree with Professor Feldman.  On this one I do agree with him -- that the point is that if you're -- I mean, when, we say open or closed, these are relative terms because it is relatively closed or relatively open, and also a question of how open or how closed -- in what ways?  And those are issues on which people are going to disagree constantly and permanently. 

And disagreement is good.  Conflict is good.  And in fact conflict is creative.  That's what makes us human.  It's part of our humanness is to be in disagreement because we tend to be distinctive as who we are, and that is not going to be who he is or who the next person is.  The only point is not to be violent about it. 

So the challenge is how to create normative institutions and mechanisms whereby we can negotiate our difference without resorting to violence.  Whenever we have this, there is no end to how open and variety of ways in which you can be open. 

MEAD:  Well, we never did get back to Professor Wright, but I think you'll -- Pastor Wright, but I think you'll agree with me this was still a very successful session.  (Laughter.)  We have lunch now, and we reconvene -- (applause) -- thank you.  

AN-NA'IM:  Thank you.

####

®FC¯END

®FL¯

.STX

      (C) COPYRIGHT 2008, FEDERAL NEWS SERVICE, INC., 1000 VERMONT AVE.

NW; 5TH FLOOR; WASHINGTON, DC - 20005, USA.  ALL RIGHTS RESERVED.  ANY REPRODUCTION, REDISTRIBUTION OR RETRANSMISSION IS EXPRESSLY PROHIBITED.

      UNAUTHORIZED REPRODUCTION, REDISTRIBUTION OR RETRANSMISSION CONSTITUTES A MISAPPROPRIATION UNDER APPLICABLE UNFAIR COMPETITION LAW, AND FEDERAL NEWS SERVICE, INC. RESERVES THE RIGHT TO PURSUE ALL REMEDIES AVAILABLE TO IT IN RESPECT TO SUCH MISAPPROPRIATION.

      FEDERAL NEWS SERVICE, INC. IS A PRIVATE FIRM AND IS NOT AFFILIATED WITH THE FEDERAL GOVERNMENT.  NO COPYRIGHT IS CLAIMED AS TO ANY PART OF THE ORIGINAL WORK PREPARED BY A UNITED STATES GOVERNMENT OFFICER OR EMPLOYEE AS PART OF THAT PERSON'S OFFICIAL DUTIES.

      FOR INFORMATION ON SUBSCRIBING TO FNS, PLEASE CALL CARINA NYBERG AT 202-347-1400.

      THIS IS A RUSH TRANSCRIPT.

-------------------------

This event is part of the Religion and Foreign Policy Symposia Series, which is made possible by the generous support of the Henry Luce Foundation.

WALTER RUSSELL MEAD:  All right.  May I have your attention, please.  Would everyone please sit down?

All right.  I'd like to welcome you to the second session of our Council on Foreign Relations seminar today.  This is a symposium on Religion and the Open Society.  This is our second session, on Religion-State Relation.

I am Walter Russell Mead, senior fellow for U.S. foreign policy.  It is my honor to introduce to you Abdullahi Ahmed An-Na'im, professor of law, Emory University Law School; Noah Feldman, professor of law, Harvard Law School and adjunct senior fellow here at the Council; and Philip Hamburger, professor of law, Columbia University Law School.  Welcome.  Welcome, everyone here, and also welcome to all of those who are joining our symposium this morning on video.

I'd like to remind you all that this is an on-the-record session, so anything that you say may be taken down in evidence and used against you.  (Laughter.) 

In our second session this morning we're going to try to follow up some of the lines of conversation that were introduced in the first session and also introduce some new themes. 

As the discussion was proceeding this morning, I was rather forcefully reminded that Abrahamic religions in particular -- that is, Judaism, Christianity, and Islam -- and some of the secular ideologies that have historically derived from that mix of religious cultures are bodies of thought which believe that there is a way the world ought to work.  There's a right way to live.  And obviously, if there's a right way to live, there are wrong ways to live.

And there are universal standards of justice, of conduct, that at least in theory ought to apply to all people everywhere.  And in human societies, as a general rule, there are states -- that is, bodies of organized authority whose mandate it is to see that things are run properly.

And so in Abrahamic societies, the relationship between the religion, which teaches us how the world ought to be run, and the state, that group of people whose job it is to run the world or at least to run that portion of the world under the authority of a particular state, have a charged relationship. 

Religious authorities will often, in sermons or otherwise, tell political authorities and state authorities how they ought to work.  Religious authorities will try to shape the conscience of voters in democratic societies so that the voters will vote for politicians who espouse the values that -- by which the state ought to run.  Certainly in our society in the United States we see many efforts, particularly in an election year, in which religious leaders of various kinds are trying to shape political outcomes.

Now, our three panelists today who, I guess, represent at least a good percentage of the faiths of the family of Abraham, are scholars who have spent a lot of time investigating the relationship of religion and state -- how it actually operates and how it ought to operate.  And I think it might be useful for the audience if we proceeded maybe just right down the panel and each of you share a kind of an overview of your sense of how religion and the state ought to operate, from your own particular perspective, whether that's a faith-based perspective or a more secular approach. 

And if you would like to start, Professor?

ABDULLAHI AHMED AN-NA'IM:  Good morning, everybody, and thank you for being here. 

I speak as a Muslim, so my perspective is religious.  And it is my perspective that indicates for me that I need the state to be secular in order for me to be the Muslim I choose to be.  And the only possibility of being Muslim is by choice. 

So I stake the secular state as a prerequisite, as one of the conditions for the possibility of being Muslim.  I may not be a good Muslim -- I'm sure I'm not -- but whatever degree of being Muslim it is, it has to be within a framework of a secular state.

But I make a distinction between the state and politics.  And I think this is a point that often, in the American system, is not clear enough -- that often people assume that separating church and state takes care of religion and politics.  (Laughter.)  My claim is that we need to deal with the other issue separately; that is, the state and religion should be separate.  By a secular state, I mean a state that is neutral regarding religious doctrine, but religion and politics cannot and should not be separated.

So the paradox is how -- for me is how to regulate and organize the connectedness of religion and politics in a way that safeguards the separation of religion and the state.

MEAD:  Okay.  Noah.

NOAH FELDMAN:  Thanks, Walter.  Thank you, Abdullahi. 

I just want to say quickly that I'm really grateful to be asked to participate on the panel with such distinguished scholars whose views I have drawn on in my own work.  I guess -- let me start with a quick historical point that draws on Walter's. 

I think that in modern Europe, one solution that was proffered to the problem of how to arrange religious affairs and the affairs of state was to suggest that the religion of the sovereign of the state would be the religion of the state.  You see this already in the Treaty of Augsburg, and then it becomes hardened at Westphalia, and it becomes in some way a basis for all of our modern thinking about church and state.

And that's easy to do when the sovereign is one guy.  When there's one person who is the king or the queen and says I'm the sovereign, that person picks a religion and then the state religion is that religion.  Now, of course, in practice, if that person flips religions, that makes things very complicated.  If you don't know whether that person is born into one religion or another, it makes things complicated.  But it sounds like a pretty good sort of working solution to the problem.

I don't think we would have the same set of church-state problems we have today if it weren't for a weird quirk that happened about a hundred years after that solution, and that quirk was the idea of popular sovereignty.  The core idea that underlies all of our democratic states, the core political idea, is this idea that it's not that one person is the sovereign; it's that all of the people are sovereign. 

Then if all of the people belong to the same religion, it's still not so difficult to say that the religion of the sovereign is the religion of the state, because if all of the people think of themselves as Muslims, and let's say they're the same -- belong to the same school of Islam, then you could still say that the state religion is the religion of that group of people and nobody will make much of an argument about it.

But if the sovereign people are plural with respect to religion, if they belong to lots of different religions, now you have a very serious practical problem.  How can you have the religion of the sovereign be the religion of the state if the sovereign belongs to many religions?  And it's at that point, I think, historically, that you start to see people saying maybe the state should not associate itself with any religion.  Maybe there shouldn't be any official religion.

Now, I wanted to use that historical background because I think it helps for me to see why I think that not every country in the world needs to have the exact same arrangement with respect to religion and government.

To my mind, there are some principles that are universal and should apply everywhere -- this goes to Walter's first point about the Abrahamic religions and their universalism -- and others that could be different in different places.

The parts that seem to me to be universal are the ideas of a basic human right to choose your religion.  Not everyone in the world necessarily agrees with this, but almost all of the great world religious traditions claim at least that there's no coercion in their religion.  The Koran actually says this explicitly, which gives it one step up on the Hebrew Bible or the New Testament.  But all of the world's religious traditions talk this way, I think it's fair to say.  Not all -- in fact, none -- are very good at implementing this in practice. 

But I think that that is enough of a universal value to say that every state, no matter where it is, even if it has an official religion, ought to allow people the freedom to choose their own religion, and with that comes the right as well not to be discriminated against on the basis of your religion.  To me, that's a universal value.

What's not a universal value, to me, is the idea of a secular state.  To me, if the society wants to arrange itself because the vast majority of people, or even just a slight majority of people prefer there to be an official state religion, provided that they grant every individual the basic human right to religious liberty, I think that that's just fine.  I think England is a good example of this.  There the established church may not be very active today.  It may be very difficult to find people in Anglican churches -- (laughter) -- but it's nevertheless the case that the Archbishop of Canterbury is a politically significant figure, not just because he says things that get people riled up every so often, but because he is connected to the organization of the state in an important way.

Similarly, in many Muslim countries, I think it would be practically absurd and, in principle, unnecessary to demand that the state not identify itself as Islamic, because that is what many, many, many -- the great majority, in many cases, of the population wants.  What is not absurd, however, is to insist in those cases that such states respect the basic human right to freedom of religion. 

And in a country like the United States where we have tremendous religious diversity, it would equally be absurd to say that we should have an established religion.  And as a matter of fact, our Constitution recognizes that and makes it impossible, at least formally, for there to be an established religion.

So I'll stop there, without claiming to have resolved any of the complicated difficulties that analysis raises, but at least it gives a framework for thinking that there are some things that everyone should do in every state, some rights that everyone should respect, but that the arrangement of church and state could still differ very significantly from place to place.

HAMBURGER:  Well, I confess I largely agree with what's been said thus far and -- in pursuing the theme that perhaps there can be variety in the world that's perfectly wholesome and that need not trouble us.  I can't help, though, observing that it may be easier to figure out what should not be than what should.  And that leads us to the very sort of narrow range of objections to sort of bullying that we don't like, that can come in many forms.  But that still leaves open many, many possibilities.  And fortunately, England is just one of them, though amusing these days.

It strikes me that religion is often treated in this country as something distinct from the state, something to be kept apart from it, perhaps something even dangerous.  And I -- one of the things one has to worry about is that Americans tend to forget the degree to which the state is itself constituted by religion.

Now, politically we find this an anathema to a Christian nation, but in a more profound sense, this is inevitable, and any anthropologist would point out you can hardly discuss a society without getting into its religion.

The very notion of equal liberty has its foundations in religion.  Now, we can claim equal liberty, equal rights, as some sort of right.  But if it's any more than just a demand, if it's actually going to be a moral duty -- for example, if slavery is immoral, and you actually have a duty to resist it.  If suicide is immoral, you have a duty to resist that -- where are we draw these conclusions from? 

And Locke has a lot to say about this, for all of his failings as a serious philosopher.  Nonetheless, on this point, he comes as close to profound as he ever gets, I think.  And we are too quick to forget that without the religious basis for equal rights, we would be impoverished and we might still have slavery.  So religion is fundamental to the very liberty that we think we sometimes need to protect from religion.

Second, it strikes me that in all societies, and although I'm not an expert in the Middle East, I gather from scholars of the Ottoman Empire that there are a lot of sermons, even in the 14th century, that are very similar to Christian sermons being given at the same time about the role of religion as part of the social structure.  If you want a degree of freedom from severe laws, you'd better hope these moral constraints (is ?) a fairly successful sort.  And religion inevitably has its own way of accomplishing that.

And then finally, it was only recently that we have escaped the notion that we have a government ordained by God.  And in the West we may think we're above religion now -- almost, perhaps, above God.  But in most of the world, such heady thoughts haven't yet permeated quite so far.  And it strikes me that if we are going to talk about religious liberty, we have to keep in mind the fairly -- importance of religion, even to the secular state. 

But I'll stop there.  Thank you.

MEAD:  Very good.

Well, I'm taking away a couple of things here.  One is I've been reminded again of just the sheer diversity of relationships that exist between religion and the state, even in the so-called Christian, so-called West.  So we not only have England, where the queen can't marry a Catholic or become a Catholic.  In Argentina, the president of the Argentine Republic must be a Roman Catholic, something that caused Carlos Menem to get baptized. 

In Germany, the president of the republic can be any religion he chooses or doesn't choose, but if you do sign up for church membership, the state will take a percentage of your income in tax each year and give it to those the state chooses to recognize as the legitimate authorities of the religion which you profess. 

So we can find all kinds of varieties with -- and yet it's interesting that all -- that certainly Germany, Argentina, and Britain, if you asked most citizens of those states do you live in a secular country, they would answer probably yes.  And it's -- while Americans like to talk about how much more religious America is than, say, Germany, I've been reminded by a member of the German Bundestag there are actually more doctors of divinity in the German parliament than in the American Congress.  That may explain something; I'm not quite sure what.  (Laughter.)

But then also I'm reminded, listening to the panelists, that our visions of what is the proper relationship of religion and state are often profoundly shaped by our own religious views.  There's the story in Belfast of a guy who's whisked into an alley by masked gunmen who point a gun to his head and they say what are you, Catholic or Protestant?  He goes, I'm an atheist!  I'm an atheist!  The gunmen think for a second and they say well, are you a Catholic atheist or a Protestant atheist?  (Laughter.)

And there's a sense in which a society can be Protestant secular or Catholic secular or Muslim secular, and those are not always the same thing. 

And what I'd like to do is ask the panelists to explore -- I think this is building on something that Philip said, that in America, certainly, our idea of this separation of church and state, or the relationship, is profoundly based on the overwhelming sort of Protestant character -- and Noah's written about this as well -- of our people at the time of -- you know, in the early American republic.

To what extent is that experience -- you may have some thoughts here, too -- applicable to people of other religious traditions and backgrounds, or how do we have to reconsider what seems to us to be natural in terms of separation of church and state that would work differently in another culture with a different background? 

Would you like to start on that, Phil?

HAMBURGER:  Sure.  Something you may know, I have a certain distaste for the notion of separation of church and state because, by accident, I fell into studying it and, to my horror, found out more about American history than I wanted to know.  (Laughter.)

To put it very bluntly, it's attributed straight to Jefferson, but it's popular --because of theological prejudice, a distaste for Catholicism, particularly Irish Catholic immigrants, the goal was to separate the church from the state.  And it's far from being a minoritarian position; it's a majoritarian position.  It's about protecting the majority of free individuals and their direct relationship to the state from a church which would exert its influence upon the people and deprive them of their mental liberty, thus debilitating them from being good citizens.

And in fact, if you -- just think for a minute.  Which is the organization that most popularized this idea in the first half of the 20th century?  The ACLU?  No.  The Ku Klux Klan.  And once that settles in, you get the idea.

So this fits in with what Noah was saying earlier.  It strikes me that it's very dangerous for us Americans to go around the world talking in broad generalities that seem natural to us, but may be only because we haven't looked at ourselves too carefully.

Our most common generalizations are separation of church and state and democracy.  Well, God help us if that's what we're exporting, and God help the rest of the world.

Democracy isn't what we practice here and it's the last thing we should wish on anyone else.  Our Founders quite deliberately established a republic.  And when one talks about democracy in many parts of the world, it sounds like majority rule.  In fact, it could have an almost fascist implication in some parts of the world.  One has to be very, very careful about overgeneralization.

And by the same token, I think separation of church and state imposes, as Noah suggested, such a high burden on nations for which this is just incompatible, obviously incompatible with their history.  So the best thing we need -- and this fits in with the views of my colleague from Emory -- we need a little modesty, not only in contemplating religion, but also our own propaganda. 

There's an old line from World War I about propaganda: one will not quite persuade one's enemies, and almost defeat oneself.  And I fear separation leads us in that direction.

MEAD:  Abdullahi, would you like to --

AN-NA'IM:  Okay.  I think various ideas will determine that the secular state everywhere is distinctive, historic, and contextual.  I mean, there are no two identical secular states anywhere. 

So secularism, or secular states, and the question of the relationship between religion and the state and religion and politics, which I try to always emphasize are different propositions, this relationship is contextual and historical.  And therefore every society has to negotiate this for itself over time, and this negotiation can go one way or the other.

But I think the -- one point I would like to bring to our discussion is I think we tend to dichotomize too much the secular and the religious.  And the so-called secular-religious dichotomy I think is overstated because religion becomes relevant in the secular world.  It is not the abstract sort of sensuality.  It is -- the relevance of religion in guiding people live -- lies in this world.  And therefore there is an inherent connectedness between the two.

Just referring back to what this morning was being said about the Koran and about the possibility of reinterpretation and so on, Ali ibn Abi Talib, the fourth caliph and the prophets' cousin and -- for the Shi'a, he is the first imam.  He said the Koran does not speak.  It is people who speak for the Koran.

And the point is that the Koran is a revelation to me as a Muslim, is divine to me as a Muslim.  But as soon as it enters human comprehension, it become secular.  It enters into this world to tell me how to live my life in this world.  And because every comprehension of the Koran is a human comprehension -- of course the possibility that there is more to the Koran than what humans can comprehend remains in the realm of individual religious experience. 

But collectively, socially, we are always dealing with someone's understanding of the Koran.  That makes me nervous about calling the state Islamic.  I don't believe that the state was ever Islamic.  Not a single day.  The state is a political institution.  It is incapable of having a religion.

Whenever we give the adjective of a religious state to any state, what we are saying is that, as you said rightly, it is the religion of the ruling elite.  So once you see it is not the religion of the state as such, but the religion of the ruling elite, you see how dangerous it is to permit the elite to attribute their religious belief to the state which we all share.

I would rather have it for me to negotiate what role Shari'a has in society and in the state in a framework that ensures a degree of equality of human rights, of freedom of religion and other freedoms.  And the proscription, as Professor Feldman describes, is to say the state can't have a religion, but at the same ensure freedom of religion for everybody, is a contradiction. 

The very fact that the state identifies with a religion is, by definition, a violation of freedom of religion.  And for that reason, I will try to strive to keep the state neutral, realizing it is not easy.  It's a constant struggle.  And where in the realm of politics to enable people to identify religiously as also as citizens in a variety of ways.

FELDMAN:  It would be very boring for the audience if we all agreed on everything, so I'm glad that we're hitting -- the rubber's meeting the road here a little bit. 

So I'm going to disagree, first with Abdullahi and then with Philip, if I might, and the framework for my disagreement is the same in both cases.  And it's the observation that when we use words that are big, grand words -- which I usually --

I have a 2-year-old son, and I know I'm dealing with a big, grand word when I can't point to the thing when I define it.  Right?  If he wants to know what a chair is, I can point to the chair.  If he wants to know what religion is, I can't point to anything in particular.  The same is true of the state.  I can't point to anyone; there's nothing I -- these are true abstractions, right?

When we talk about abstractions, which we have to do because much of our world is shaped out of these abstractions, we're never defining them in some way that is objectively correct.  We're always injecting into what we say the way we think they should be.

When we say, "religion is," what we mean is religion is and should be.  The same is true when we talk about the state.  They're just two, the two that happen to be in play in this conversation.

Now, when we talk about can there be such a thing as an Islamic state, I understand that argument, the political and religious argument that says no, there can be no such thing as an Islamic state because Islam is a faith and the state is not a faith.  There can be the religion of the people who run the state.

But if all of the people who run the state and organize the institutions of the state say that their state is religious -- right? -- if they assert this and if they have institutions that exist in the real world that they administer according to these ideas, if there are certain people who are in charge of deciding on this aspect of the expenditure of funds with regard to religion, and this group of people who are in charge of that aspect of making sure that -- I don't know -- as in Saudi Arabia, that people attend the mosque.  You know, if you're in the marketplace and prayer time comes in Saudi Arabia, someone comes along and urges you to attend the mosque.  And if notice that you're not a Muslim, then they say oh, sorry -- you know? -- not you.

But if you have people these sorts of things, then it's practically useful to be able to say that you're speaking in the context of an Islamic state, and that's all I need, I think, for me to be able to say that people may speak of themselves as having an Islamic state.

Now, is there a certain contradiction between that and the idea that some citizens would nevertheless be free to exercise their religious rights? And here I'm going to turn to Philip.  So this is the point that Abdullahi made.  There is a contradiction here.

I agree that there's some tension, because if all the people who run the state are saying this is an Islamic state, the person who's a non-Muslim may feel marginal, may have the experience of feeling like, well, wait a minute.  It's not my state.  I don't fully participate in that state.  Right?  And I agree that that can be a subjective experience that the person will have -- will be likely to have.

If, however, they have that feeling, I don't think it follows from that that they are not free to act in the realm of their own religion.  They might not be free.  You might have a great tendency to take away their rights, but it doesn't necessarily follow, I don't think, that they are not free to act in the realm of their own religion. 

And let me just give a practical example of why this so, and here I'll turn to -- my disagreement -- this is apart of where Philip and I disagree.  Although I think Philip and I often agree on the bottom line, we almost always disagree completely about how to get there.  (Laughter.)

So if you look at the Protestant tradition of the separation of church and state, which Philip has done so much to elucidate, it begins with the idea that the state does have a religion, but that that religion demands equal liberty and free choice of religion for each of its citizens.  Right?  Now, not everyone in the Protestant tradition says this, but let's just take Locke, whom Philip mentioned, who for Americans, at least, is the most influential thinker about the relationship between religion and government, I would argue.  

Locke, in his famous letter on toleration, does say that there's no such thing under the gospels as a Christian commonwealth.  He thinks there was a Jewish commonwealth under the Hebrew Bible, but that because of Christian liberty, there's no such thing as a truly Christian commonwealth.  So actually he agrees with Abdullahi on that point.

But he's imagining that the Church of England will remain the established church, and he is imagining that government money and church money will be fully intertwined.  But he thinks that his own religion, which is the religion of the state, in effect, itself demands -- and he makes a religious argument for this -- itself demands that each person be left free to choose his own religion, because the religion wants free choice of faith, and not coerced choice of faith.

Now, does that make separation of church and state a Protestant idea?  In some sense, yeah.  Yes, it does, in America.  And once you see that it's a Protestant idea, it's impossible to disentangle it from a long strain of anti-Catholicism in English-speaking Protestantism.  And so when you look at the historical materials, as Philip does very well in his very important book on this subject, you see, and what do you know -- the same people who were advocating religious liberty are also not in favor of the Catholic Church -- which, they note, as late as the 1860s and '70s says that, quote, "Liberty of conscience is a delirimentum."  Walter's Latin is better than mine, but it's nothing good to say that something is -- it's a, you know, a false imagining.  Something that you ought not to believe.  Right? 

So there's an actual disagreement there on whether the liberty of conscience is in fact an important value -- and, of course, the Catholic Church has changed its view on this radically since that time, and that's wonderful.  But the fact is that once you acknowledge in a historical sense that there is something distinctively Protestant about this development of separation of church and state, you find all the nasty stuff, too.  But that's okay -- and this is where Philip and I disagree.

You find the nasty stuff -- and he's right that it's there, but that doesn't trouble me very much, because all traditions of thought, whether they're religious, secular, or otherwise, have this nasty stuff caught up in it.  So when I read the new atheists, as they are -- they're sometimes called, you know, these writers who get so much attention these days who are, in fact, amazingly similar to the atheists of the 1870s and '80s. 

I mean, in fact, almost all of the arguments, with only a few exceptions, can already be found in those earlier texts.  So once a century they get their chance to really, you know -- (laughter) -- flex and stretch their muscles, and that's probably a good thing.  They're focusing on nasty things that religion has done, and it's almost never the case that they're wrong.  The nasty things they say religion has done, it has done.  But so has every other ideology. 

I'll leave it there.

AN-NA'IM:  Can I --

MEAD:  Sure.

AN-NA'IM:  I'm saying just about the -- because when you say when all the Muslims of a country say that we want our -- or say to me -- Muslims never agree on anything -- never agree.  But the day the prophet died, and before he was buried, Muslims disagreed about how to succeed and who to succeed.  So disagreements have been -- (inaudible) -- you will never agree and you will always disagree, and it's only God in the next life who will adjudicate your differences among you; several verses to this extent.

So the point is that my problem with a -- Islamic state is that what does Islamic mean?  When we cannot agree on what Islamic means, using the term is confusing; in fact, dangerous, because it hides all the nasty stuff that he was talking about behind this veneer of Islamic, so that it becomes harder to challenge it.

He gives an example of Saudi Arabia.  In Saudi Arabia, there is a significant minority of Shi'a in eastern Arabia.  I don't like to say Saudi Arabia.  I like to say Arabia.  How can you name a country after a family?  In Arabia, there is significant Shi'a in the east to whom the Wahhabi doctrine of the state is a heresy, and they are obliged to live under this heresy as the law of the state.

And when you see that Iran is an Islamic state and Saudi Arabia is an Islamic state, what will it mean when, to each of them, the other is a heresy?  So the term Islamic becomes totally incoherent.  You know, as you travel in the region, you will find that people call Islamic law -- Islamic sort of -- (inaudible) -- the term is overused that there is no thought as to exactly what we mean by it.  And when we look closely to what we mean by it, we see that no Muslims of any country will agree on what their state is when they call it an Islamic state.

All of this is to be in the realm of politics.  And that's why I will say let people affirm their Islamic identity and values through politics, but not through a state institutions, which is what I need to have for it to be possible for me to negotiate Shari'a in politics.

MEAD:  Philip.

PHILIP HAMBURGER:  I'm not learned enough to take a position on Islamic law such as Professor An-Na'im just did, but in defense of -- of his position against Professor Feldman's, I must say I fear that Professor Feldman, in defense of his view that there should be possibly should admit there to be an Islamic state, looks to Europe to say, "Well, there are Christian states there."  And it strikes me that, at least in the Anglo-American tradition, which is the freer part of the European tradition, that's not so clear.

So, yes, there would have been a social establishment of Christianity, particularly Anglicanism in England.  And, yes, the monarch is the head of the English church, but if one looks at the theological and political writings of the late 17th century and early 18th century, defending Anglican establishments, the writings that Americans look to and understand, the argument isn't the state is religious, let alone that it's Protestant, let alone that it's Anglican, but rather that there's an alliance between church and state.

So even in the English church's own writings, it's not asserted that there's an Anglican church -- I'm sorry -- an Anglican state, except in the strongest -- (inaudible) -- Tory writings.  In the mainstream English writings, for example, by Bishop Warburton is about an alliance of church and state, in which he does very interesting Madisonian-style reasons.  And so it's really, I think, much more cautious.  So I don't think we can look to Europe and say, "Well, that's what the Europeans did.  Therefore, we should be comfortable with a religious state elsewhere."

I'd also like to disagree, much as I appreciate Professor Feldman's views on this, with his casual use of separation of church and state, as if that is what we're talking about when we talk about disestablishment.  Disestablishment and separation are very different metaphors.  Establishment is about one object elevating another, and therefore it's about a restraint on the government elevating the church.  Separation of church and state, which we think of horizontally, it's about keeping apart two institutions, and necessarily it limits both.  And instead of talking about religion generally, it focuses on organized religion rather than individual spirituality.

So it seems to me, yes, a lot of violence has been pursued in this country even in the name of separation of church and state, as well as in the name of religion.  But that's not our ideal.  Our ideal is actually quite carefully drafted in the Constitution.  It's about disestablishment.

And then, finally, I can't help talking about violence, since that's what lies behind so much of this, right?  We're not talking about violence -- "Let's have some fun" -- because violence has its fun aspect, unfortunately; we're human, and we indulge in it occasionally.  So if it looks back, as the Supreme Court likes to do, they'll say, "Oh, we have to be careful of divisiveness and religious violence," and they allude to Europe, particularly the happy years of the 16th and 17th century when there was a lot of violence.

It's by no means clear that religion has a monopoly on this.  In fact, religion turned out to be rather inefficient.  The Inquisition only killed a few thousand people.  What were they up to?  Their mind was on God, not on the efficiency of killing.  And it strikes me that the secular state in the past century has really done a much better job of it, if you're into that sort of thing, which gets to the larger set of issues, I think, here that we haven't yet discussed, the relationship, as it were, social structures, if we include religion amongst these.

So let's not talk about religion.  I agree with Professor Feldman about this.  It's an amorphous concept.  Let's think just for a minute; not say this is what religion really is, but about unrealistic aspirations for purity and transcendence.

Now, if that is part of the human condition, how should it be pursued, with unrealistic aspirations for purity and transcendence in this world or another world?  And which is more dangerous?  I don't know that I know the answer.  But it's by no means clear to me that pursuing those unrealistic aspirations in another world is more dangerous than in this world.  And I think, sadly, the comparisons to the Soviet Union and the proceedings of the 16th Century illustrate that.

MEAD:  All right.  Boy, well, you certainly know how to bring the fun into a gathering.  (Laughter.)

HAMBURGER:  I don't like violence myself, but it's fun to talk about.

MEAD:  All right.  Well, I think, speaking of fun, maybe it's time to give the audience some and open this up for questions.  Again, I'd like to remind you that a question is a statement which can be grammatically ended with a question mark.  (Laughter.)  One can usually tell one's being asked a question by sort of a rising inflection that comes at the end of the sentence.  And questions are, generally speaking, rather short.

So if anybody has questions, please raise your hand.  We'll bring a microphone to you.  State your name and your affiliation for the sake of those watching by video.

QUESTIONER:  Charles Harper, John Templeton Foundation.

I want to state a thesis as a question for all of you.  Do you think that strategically, for the Council on Foreign Relations and the United States generally, that this issue for intellectuals of clarifying the difference in religion between a situation before and after an American-style politic -- constitutionally of the separation of state power from religious culture, do you see that as something that's vital for American intellectuals to engage with in the world to clarify what the American experiment and experience has been?

MEAD:  So if I rephrase that, gentlemen, does your life's work have any meaning or purpose?  (Laughter.)  Anybody want to jump in there?

FELDMAN:  One think that I think is fair to say is that, though it's obviously crucially important in the American realm for us to understand what we're doing ourselves domestically, we shouldn't draw the conclusion from that that once we've figured it out, then we'll have something we can hold their hands and export.

I mean, one of the weirdest experiences of my life was sitting in the Green Zone and hearing U.S. government officials, who were aligned with the political movement of deeply skeptical of, for example, the idea of a secular state -- we don't have a secular state here -- saying things like, "The most important thing we have to keep in mind for the new Iraq is that there must be a strictly secular state."

First of all, it bespoke a willingness to sort of imagine something on the U.S. side that they themselves denied exists on the U.S. side.  But second of all, it bespoke this idea that they knew exactly what we had in the United States and we should export that.

So I want to (exploit ?) all of that -- (inaudible).  I think the other panelists do too.  We do want to understand what we have here.  We want to understand the fights that we still have in the United States, the lack of clarity that we have.  And then we want to realize that whatever the lack of -- (inaudible) -- that we have is, that's probably not the suitable thing to impose on anybody else.  At least that's my own view.

MEAD:  They should have their own lack of clarity.

FELDMAN:  Exactly.  They should have their own version of confusion.

And this is the last thing I would say.  I mean, a constitutional tradition that works is one that is in a constant state of dynamic evolution.  You have a written constitution that says "x," but no constitutional system works if it just follows what's in that written constitution and never changes.  Interpretation gives it the freedom to change.  And if it doesn't even have a text, so much the better, often, because then you have a little bit more freedom for the dynamism.

So everyone's going to have some complex dynamic unresolved form of the relationship between religion and government, but they shouldn't all have the same confusion.

MEAD:   Abdullahi, do you want to --

AN-NA'IM:  I was going to -- I am from Sudan.  At this point I am an American citizen, but I am from Sudan and am formed by being from Sudan.  And one term or concept, idea that has not really been raised much is colonialism.  Much of what we see is post-colonialism, that it is more informed by colonialism than it is by anything else about Muslim societies and their history.

The Islamic state discourse is a post-colonial discourse, because one position that we have not clarified, what do we mean by the state?  The form of state -- the type of state that we now live with is a European model of the state.  And the idea of law that Muslims -- when Muslims talk about an Islamic state before Shari'a, they think of it as Shari'a as positive law; European idea of law, European idea of the state.

So it's a contradiction, I think, to claim to affirm Islamic identity through two European institutions, the state and law.  The type of state that Muslims lived with historically is a very different type of state than the state they are living with now in the post-colonial.

Now, coming to the American, also one question.  Iraq was mentioned a couple of times.  But the fact is that Iraq has been a colonial experience; that is, the United States has colonized and is still colonizing Iraq.  Iraq is not a sovereign state now, as we speak.  And probably in my book, the biggest moral failure of the United States since the Second World War has been the invasion, occupation and colonization of Iraq.

And this event, if we can call it an event, has done sort of horrendous consequences for decades to come and outraged, completely outraged, that we can talk about it as if it is something that happened and, okay, we'll just now deal with the consequences.  No, it has to be condemned for having happened in the first place.  And thus, having had to be condemned for having done it, now the impulse is the Americans go out in the world to engage in conversation about the American experience -- absolutely fine, wonderful.  In fact, we do this all the time.

I studied constitutional law with an American professor in the 1960s in Sudan, and I learned a lot from him.  And I continue to learn from my American experience.  But if you send your armies to missionize for your view of what freedom of religion is and what church and state is, that's completely unacceptable and utterly counterproductive.

FELDMAN:  Just for the record, I mean, we did invade Iraq; there's no question.  And there's no question, further, that our presence there has features that are in common with colonialism, or with imperialism maybe more precisely.  But if you look at the constitutional structure that emerged in Iraq, it has nothing to do with the U.S. constitutional structure.  I mean, for better or worse, it makes Iraq an Islamic state and says that no law passed may violate the judgments of Islam.  I mean, it says that when it comes to family law -- I mean, you can say these are terrible things.  I think you do think they're terrible things.  But whatever they are, they're not American things.

AN-NA'IM:  No, but the fact is that it was drafted during an American occupation, that the people of Iraq -- I mean, the question is also Britain colonized Sudan and Uganda and Kenya; I mean, most of African states.  And it was -- and the French did it too.  At the end of the colonial period, they drafted a constitution in Lancaster House in England for the new state to just go on and become independent and sovereign as of today, because we have made you sovereign.

When our secretary of State sends a letter to the government of Iraq to say that "We have your sovereignty for a year.  Here, have it back.  But we will keep 150,000 troops heavily armed under foreign command who will protect you from your own population, but you are a sovereign state."  The constitution of Iraq has not happened.  And the fact that you have a document called the constitution of Iraq is not and does not make it the constitution of Iraq.

You know, constitutions are not made in documents.  Constitutions are hearts and minds of people.  And until the people of Iraq have the freedom and the stability and the ability to draft their own constitution completely free, without any foreign advisers, without technocrats telling them how to draft this or how to work it out or not work it out, it is not a constitution.

MEAD:  Well, I think -- let's try to -- points taken, but let's try to keep this on the broader agenda of responding, I think, to the question of, you know, the validity -- sort of the importance for American foreign policy of trying to understand this issue of religious --

HAMBURGER:  I do want to get back to the original question.  I just cannot help engaging a little bit on this point.

MEAD:  Please don't.  (Laughter.)

HAMBURGER:  One sentence.  It's simply that if one takes everything that Professor An-Na'im just said as true, it just does strike me that we won't have to worry that the colonial discourse tends to lead us only to look at some tragedies and not others.  And I think if one's really to be concerned about the people of any nation in this world, as a human being, one has to recognize disasters can happen from any direction, including from within, and that's certainly been the case with Iraq.

Now, getting back to the question, though, it strikes me that, yes, we do need to be engaging.  I almost agreed with Noah there until he went on about the living constitution, and then I had to back -- can't win 'em all.  It strikes me that we have had a remarkable experience here, perhaps just by accident.  None of us in this room, I think, can take credit for it, but we have lived in a genuinely blessed country in a blessed period of time where it is just not normal in human experience to have what we have in the United States.

And by whatever grace that is, I think it is worth talking about.  It's worth talking about with all the caution that my colleagues have mentioned, because we don't know which elements are essential, and there's a danger we will misstate it, so we need to be very modest about it.  And it may be that we should not impose this; that's surely true.  And yet, at the same time, just to show the model of living, a Lutheran pastor once explained to me how he reached his congregation, and he said to me, "I don't have a congregation; I just try to live right, and people notice that."

And we can take the same approach.  But I think, at the same time, one can't just live right.  One has to talk about it.  And, yes, we need to be engaged with a sense of prudence, with a sense of the diversity of the world, but sharing at least the model so that people can adapt from it what I think they will undoubtedly find deeply attractive.  And frankly, people across the world do.

MEAD:  And I would probably add, from the standpoint of the Council on Foreign Relations, or at least some of us here, we think that certainly since September 11th, but a lot of events before that, have raised the importance of trying to get a clearer understanding in the U.S. of how our own traditions have evolved in this respect and then trying to understand better where those do and don't intersect with the experiences of other societies and what usefully can we do to try to advance some of the universal values that Noah was talking about in these very different contexts.

Sir.

QUESTIONER:  Jim Dingman, INN World Report.

When one travels to Europe, one's constantly confronted with the question of "What are you Americans doing letting these fundamentalist Christians dominate your foreign policy?"  All the time last fall, I got that continually.  And we know that operationally that influence has been realized in the HIV-AIDS policy of Bush's administration in Africa.

And I wanted to get your take on that and also how people in Europe are perceiving how religion is in the election process.  For example, we've had three weeks of Jeremiah Wright being thrown at us, and that has, of course, been perceived differently in Europe than in the United States.  I wanted to know how you see those things.

FELDMAN:  We're on the record, right?

MEAD:  No, go right ahead; sounds like you're itching to go.

FELDMAN:  Well, I mean, look, on the first point I would say welcome to participatory democracy.  There are all these foreign policy elites; some of them may be in this room.  Some of the people who helped create this room, who think that it might not be such a good idea for the general democratic population -- here I mean democratic, not a small "r" republican -- to be involved in foreign policymaking, right, because they think, "Wow, what happens when that happens is that all those people out there have these views that we elites don't agree with will impact our foreign policy -- yuk."

Now, you know, one of the costs of the democratization of foreign policy in the last 115 years, which is itself in part of a very complicated story that Walter has told part of very brilliantly of post-Cold War changes in the way foreign policy is shaped, one of the consequences of this democratization of foreign policy debates is that constituencies that historically didn't do that much or weren't able to do that much to affect our foreign policy now can and do.

I think that in many particular cases -- the one you mentioned is a good one -- I don't agree with what that particular constituency wants our foreign policy to be.  But I completely disagree that it somehow follows from that that public voices should be excluded from our foreign policy judgments.  I think if you're serious about being a democracy, you need to acknowledge that.

And when you make your foreign policy, you have to think seriously about the fact that that foreign policy is now going to be shaped in the long run by what the general public believes.  I think that's got to be now part of the foreign policy calculus.  When you decide to do something, you can't think, for example, that the next administration, even if it's of a different party, will do just what you expect it to do.  That's a mistake, I think, now in foreign policy, where then maybe it wasn't the case in certain aspects of the Cold War.  So that's on the first half of the question, and I'll leave Jeremiah Wright to my colleagues.

HAMBURGER:  I just want to comment on the notion of fundamentalists anywhere.  Who are the fundamentalists, right?  Fundamentalists are a small group that are more generally known as evangelicals.  The number of fundamentalists in this country who were actually traditional fundamentalists are tiny.  I mean, how many premillenarian literalists are there in this country?  That's not most evangelicals.

And so when people criticize fundamentalists, they're revealing a certain theological ignorance, I fear.  And what particularly worries me is that this is a theologically (inflected ?) term.  This is saying some people believe in fundamentals.  In other words, they believe in orthodoxies.  We are theologically liberal.  The implication is, "And we don't have orthodoxies."  And somehow this gets into class distinctions, too -- the educated versus uneducated and the rest.  And so I think we have to be very careful with labels.  Most evangelicals are highly individualistic.  Most of them are not fundamentalist in the traditional term.

And just a final thought here.  Since I am interested so much in the bullying of religious minorities, we would not ordinarily take the label for a small minority and treat that as a label for some sort of social ill or theological ill.  You know, if you're worried about some sort of habit that you associate with a particular religion, you wouldn't say, "How Protestant of you.  How Catholic of you.  How Islamic of you.  How Jewish of you."  We think how prejudiced that would be.  But we don't hesitate to say, "Gee, that's very fundamentalist," and we're not even talking about fundamentalists.  We're using minority label.

And so I just feel a lot of these criticisms don't even understand the theologies involved.  Now, it may be right, as Noah points out.  Perhaps we might disagree with the policies.  But that's a different issue altogether.

MEAD:  Yes.

QUESTIONER:  (Inaudible.)

MEAD:  I have a feeling we'll come back to Jeremiah Wright.

QUESTIONER:  I'm definitely not Jeremiah --

MEAD:  He'll take care of himself.

QUESTIONER:  Thank you.

I'd like to ask you to express an opinion.  Mr. Ratzinger, who has chosen the name of Pope Benedict XVI --

MEAD:  Are you a Protestant, by any chance?

QUESTIONER:  There's a chance.  There's a chance.  I'd like to ask you to comment on this too.  And I know you're the fair-minded moderator here.  I will not try to quote him, because he did it in Latin and my Latin is not that good.  But he said at one point here three or four months something to the effect that he would support the building of mosques in Rome when the Saudi government permitted the building of churches in Riyadh.  Would you comment on that?

AN-NA'IM:  There is so much more to the Muslim world than Saudi Arabia.

QUESTIONER:  (Off mike.)

AN-NA'IM:  (Laughs.)  Because he said Riyadh, so -- at least to be clear.  I made my point about the family and the country.  But now what I'm saying is this.  I noticed also this morning already that there is so much focus on the Middle East as if it is representative of the Muslim world at large.

The Arab Muslim region is about 10 (percent) to 12 percent of the total Muslim population -- 10 (percent) to 12 percent.  There are more Muslims in sub-Saharan Africa than there are Muslims in the Middle East.  There are -- India is the second-largest Muslim country in the world, or third, probably, when you compare it to Pakistan.

The point is that so much Muslims and Islam historically, as well as currently, are not anything to do with the Middle East; in fact, quite different, very much different, that -- so that I think for the pope's remark, I think it is unfair to sort of prejudge Muslims' attitudes about churches and Christian-Muslim relations and so on by what goes on in Arabia or Saudi Arabia, as your choice.

In that sense, the point is that also, I would say, I would hope that a pope would be more visionary and more leading the Christians than this tit-for-tat attitude.  He should say that "I would support building a mosque in Rome regardless of what" -- because he should be driven by his own religious conviction as a Christian, not by what -- and this is exactly what Muslims are doing now when they are (ranting ?) against the United States and condemning everything that's good about this country because they hate some aspects of the foreign policy of this country.

What the United States does or does not do should not define what I do or not do and my right as a Muslim.  And I would hope that the pope would think "What does my religious conviction as a Christian leader lead me to do about mosques in Rome?" rather than being defined by what Muslim leaders do or prefer to do in other countries.

MEAD:  I suppose the king of Saudi Arabia might also reply, "We'll separate mosque from state in Saudi Arabia when you do it in the Vatican, your holiness," and see what he gets.

QUESTIONER:  Hi.  Assam Rehman (sp), Muslim Bar Association of New York.

Just to take advantage of the fact that we have three law professors, I wanted to ask your opinion on the role of religious judicial bodies.  This is something that was discussed earlier this morning, but perhaps each of you can comment, because, for example, Professor An-Na'im, you talked about keeping religion out of the institutions.  How does that concept inform the existence of a judicial body or even a scholar who is empowered by the state to adjudicate matters?  Professor Feldman, you wrote about this recently.  I'd like to get your views as legal experts on that matter.

(Off mike commentary.) 

AN-NA'IM:  Okay.  You might be surprised, but I am opposed to what the archbishop has proposed.  I think it is bad for the state institutions to enforce religious adjudication.  Religious adjudication and other types of adjudication happen all the time.  And we can never stop it, and, in fact, we can encourage it.

My objection comes when you involve a state institution in enforcing the outcome of -- (inaudible) -- our situation.  If it is freely chosen by the parties, you can have types of issues where that happens outside the state institutions, and it will happen outside the state institutions, and it is good that it happens.

But implicating the state institutions into enforcing religious adjudication is dangerous for the state and for the religion.  Now, one point is that when -- say, if you have a Shari'a-based arbitrational family dispute in Britain go before English courts to enforce, is the court going to review only the procedural aspects, or is it going to review the substantive aspects?  Or is it going to enforce based on the authority of those who adjudicate it without questioning looking into what really went on and what are the issues?

Now, is an English court competent in Shari'a to be able to review adjudication outcomes?  If it is not, is it going to enforce an adjudication that it has no way of evaluating in terms of its good or bad nature, and so on?  Now, the point is that the realm of community life are very much -- I think my sense of separation of church and state, as you said, is protecting the state from religion and religion from the state.  And in that light, I would be opposed to enforcement of religious education.

Now, another point to add; I don't know how much time -- time, of course, is short.  The thing is, what is the Shari'a authorization for this selectivity, because if what you are doing is enforcing Shari'a, Shari'a has a lot to say on everything.  How come that you choose this particular limited issue and exclude all other issues on which Shari'a is as authoritative as it is on this issue?

In the sort of Ontario case, the same proposal was made in Ontario.  And the proposal was made excluding custody-of-children issues.  Because custody of children is a federal jurisdiction, so they were saying in Ontario, "Let us do it in other issues, not with custody of children."  How can you deal with a family dispute without including custody-of-children issues as a factor simply because the state structure is such that this is outside the realm of the provincial?  That is the sort of confusion that is bound to come through if you try to do this sort of thing.

HAMBURGER:  If I could just add a word here, for 480 years the law of the land has had complete obligation, within the jurisdiction of the common-law nations.  There is no room for a distinct jurisdiction independent of it.  And although in England church courts can be authorized by the state, it's always under their complete authority of the law of the land.  And that's just fundamental.  That's why our constitution refers to the supreme law of the land. 

And I agree with Professor An-Na'im.  It's very, very dangerous to start breaking that down.  That can go in a lot of different directions.  This was the split between the Catholic Church in England in the 1530s, and there's just nothing as fundamental as the complete force of the law of the land in jurisdiction.  And we're familiar with this in many areas, in questions of race, questions of religion and so forth.

There is some room for contractual arrangements by which individuals put themselves into someone else's judgment, be it religious or commercial, right?  But the secular courts must always have competence to decide the matter ultimately.  And to inquire, which is genuinely voluntary, there's potential for this to go in a very dangerous direction, and not, incidentally, to the advantage of Muslims.

FELDMAN:  Here I disagree with my colleagues.  To me, this question comes under the general category of things you could do differently in different countries, provided that basic human rights are respected.  And I would note that in his pretty tentative speech, if you actually read it, which obviously very few people have done -- in this room I'm sure many have, but in the world, very few people have done -- the archbishop of Canterbury spoke of, first of all -- the background assumption of the talk was that, of course, the laws of the state would ultimately be the ones that authorized the local court -- the arbitral body, and that the state law would be the supreme law of the land.  He was very explicit in this respect, and he also said very explicitly that equality of men and women would have to be respected, that that would trump any particular Islamic principles, and so forth and so on.

Now, I think it's worth noting the difference in approach -- and this goes back to the previous question -- between Pope Benedict and the archbishop of Canterbury because they both lead -- once much larger, but they both lead big Christian denominations -- when it comes to dealing with the question of Islam.  Pope Benedict's verbal practice thus far and his experience have been to be, let's say, on occasion sharply negative about aspects of Islam.  That has brought him a lot of opposition in the Muslim world, but it's been pretty good for him as a sort of political move within Europe.  I think it's fair to say that he has strengthened himself within Europe as a result.  An interesting strategy on his part, especially given that he has said explicitly when he became pope that one of the dangers for the church is becoming irrelevant in Europe.  So it turns out that being sharply negative about Islam is a very effective technique for making yourself a player in the contemporary European environment.

The archbishop of Canterbury --

(Cross talk.)

MEAD:  -- could maybe take a lead --

FELDMAN:  -- yeah, it's interesting.  Yeah.

The archbishop of Canterbury, by contrast, gave this very tentative and scholarly lecture in a pretty academic environment and all hell broke loose.  You know?  I mean, they were calling for his resignation.  And you know, he's been handling some pretty sensitive matters over the last couple of years that -- the Anglican community is not without its difficulties, as we know -- but nobody, as far as I know, has made as open, as loud, as angry a set of calls for his resignation as came over this one speech.  So there's an important lesson there about the political climate in Europe right now.  Say anything that might be construed as in some way -- and the archbishop was very explicit -- he was trying to experimentally think of ways to reach out to the Muslim community in England to make it feel fully a part, and you can think that that's a mistake; you can think it's wrong -- but the spirit of the speech I think is pretty clear, and look at the consequences. 

MEAD:  Okay.  We have a question from one of our very patient webcast viewers that I'd like to interject here.  This is from Rene Lape (sp) at Friends Academy, who asked, "Regarding the relationship between Christian believers in the United States and the state, when it comes to issue such as the prohibition we have always had on men having more than one wife, a rule strictly related, it seems, to our identity as a Christian nation, how do you see the role of the state in defining the nature of marriage -- whether we're speaking of same-sex marriage or monogamous marriages?" 

So, I guess behind that is the notion that religious presuppositions inform the approach of the state to such basic matters of family life -- is this appropriate? 

MR.     :  (Off mike.)  (Laughter.)

AN-NA'IM:  I'll try briefly.  I think it is legitimate that every society's legal order -- codes of family law included -- would reflect its values, its culture, its religious beliefs included in that.  But the point is that certain -- as it is enacted as law by virtue of the will of the state and not by virtue religious authority.  So monogamous marriage is now part of the -- of course we are clear, all of us, that the origin or the underpinnings of this are Christian or particularly at least some interpretation of Christian dogma, but the point is that it is family law by virtue of the will of the state, not by virtue of divine command.

If that is the case, then it can be changed, too.  Not that we are going to have polygamous marriages, but the point is that we are dealing with the secular world.  My view is that in Islamic-majority countries, family law also should be secular law and should be seen as such; that you have a family court.  If the peoples are Muslims, their values will be reflected in that court, but there is no confusion that what the law is is the rule of the state and not the religious commands according to some interpretations of it. 

So, in that sense, we can have polygamous marriage or not have this divorce or that divorce -- all of it as secular law so we can change it.  But once we say, "This is Shari'a," then what can we do about it?

MEAD:  So in some countries one can have multiple wives; in this country we have multiple conceptions of marriage.  But these come from the democratic system of politics.  And underlying this and the prior question really is the matter of women's rights.  Right?  To what -- whether we're talking about polygamy or we're talking about Shari'a is introduced as a set of -- a subpart of the legal system as to family matters, the concern that I think many people rightfully will have is what will happen to the woman as an individual?  Will her rights be fully respected?  And to what extent will her freedom remain under such a system?  And given the role of the equality of women generally one might say in the development of the set of political systems and freedoms that we appreciate -- and it's been a central part, frankly -- women's rights have been a central part of the movement against slavery in this country and in changing our polity I think in ways that are on the whole rather wholesome.  We ought to be very, very careful about inviting what might become instruments of undermining this.  In fact, if there's anything we can do for the rest of the world, it will be to remind the rest of the world that in fact half the population -- many parts -- are excluded from full participation as citizens.  And, to put it mildly, that's a shame.

Yes, in the back?

QUESTIONER:  Yes.  Eric Gregory from Princeton University.  I'm an academic, so you'll forgive me if I worry this is getting to concrete.  I'm going to ask an abstract question, and it was provoked by Professor Hamburger.  I think as a matter of intellectual history, the concept of the secular and even human rights and even the separation of church and state have their soil in theological and religious sources.  And you said that we would be impoverished today without those religious motivations to regard people as equal, et cetera.  Do you want to go further and say they're actually necessary and required?  And I wasn't sure if you meant that as a philosophical argument, as a sociological argument or as a historical argument.  Can we tick away the God talk as long as we have the constitutional practices and democratic republican institutions, or is religion necessary for the defense of human rights?  It's the question about Locke, really. 

HAMBURGER:  Yeah.  It's a good question.  It's an -- I don't know the answer, and I fear that we're living through an interesting experiment.  We won't know probably for a little while -- I hope not to live long enough to find out.  But this is the division between America and Europe, right?  And if we think -- I don't think America has ever really been the same as Europe, but there are some commonalities.  And if one looks at the fate of Europe and the fate of the United States, we each have our problems, but their problems may turn out to be more fundamental precisely because they place such a burden on their mere humanity, and that is more than most societies have survived.

I don't want to suggest that nothing -- you know, it isn't possible.  That would be going too far, right?  We have no evidence for that.  But if one looks across history -- and of course, we only have a few thousand years of detailed evidence -- but if one looks across history, it's difficult to find a society which really gets very far, survives very long without some outside source to define and give stability to what we loosely call -- politely call "values," right, but which actually have to be a little bit more magnetic than that.  So I don't really know, but I'm -- although personally an optimist, professionally I'm a pessimist.  (Laughter.)

MEAD:  Yes?  Wait for the microphone.

QUESTIONER:  Paul de Vries with New York Divinity School.  I'm also on the board of the National Association of Evangelicals.  It puzzles us that we've had such a giant influence on foreign policy.  We look at many of our attempts to affect foreign policy in terms of restricting sex trade, nonviolent conflict resolution, creation care, environmental issues to be part of foreign policy and so forth.  And perhaps the -- (inaudible) -- list several more, perhaps the only success was the AIDS program that Bush pushed in Africa. 

But I guess the question -- we represent directly 20 million evangelicals, and indirectly probably equal number.  What can we do to wake up Washington to what we see as the eternal values?

MEAD:  How can evangelicals get more political influence?  (Laughter.)  Who wants to answer that?

FELDMAN:  I'll say something about at least the first part of the question -- how it's a surprise.  It's sometimes a surprise where one has influence and where one doesn't have influence. 

I think one of the key rules of American foreign policy is that if you pick an issue that nobody really feels strongly on the other side of, or at least where the opposition to you is not well organized and where no really fundamental national security interest is on the other side, that's where you're likely, in the first instance, to have a lot of impact.  Right?  I mean, this is a key point in understanding the role of the pro-Israel lobby -- both the Jewish pro-Israel lobby and the evangelical pro-Israel lobby.  Walter has written recently in an interesting review of Mearsheimer and Walt's book about this phenomenon.  It helps if you're advocating for something and no one is very organized in advocating on the other side of that issue.

In terms of how, though, one has an effect or a group of concerned citizens have a big effect where the national security interest doesn't obviously align with what they're pushing for or where there are other strong interests -- especially corporate interests -- on the other side, there the thing about our republican democracy is that the push really has to happen at the level of individual congresspeople.  I mean, that really is the way it works.  And although, for example, we speak of the tremendous corporate impact on our politics, which is enormous, that is accomplished via the mechanism of targeted support for particular representatives and senators.  That's our version of what we don't consider to be corruption.  I mean, at the margins it can become corrupt, but the American approach for better or for worse is to say money has a huge impact, so let's create a legal channel for money to have its influence so that it doesn't have its influence through non-legal channels. 

That may be a terrible mistake -- and again here, the European example is an interesting contrast where there's at least in many places in Europe a serious attempt to avoid the influence of money in politics, and yet there doesn't seem to be the kind of corruption that one sees in some other places.  That's an interesting contrast, and especially whether we could achieve that is I think the central question and the question of campaign finance reform. 

But that's really my view:  You do it by identifying particular people who are vulnerable and trying to get them elected or not elected. 

MEAD:  Okay.  We have time I think for one more question.

QUESTIONER:  I'm Sayed (sp).  Once again, I just wanted to make a brief observation in terms of open societies.  If both religion and the secular-minded groups are so much strongly in favor of open society, what is it that makes this a difficult thing to be realized?  Are we not looking at the moral aspect of it, or is there something else?  Thank you.

HAMBURGER:  Well, if I may, I feel that too often both secular attitudes and religion are used, right?  In the particularly in the democratic style government, religion is used to mobilize passions -- sometimes for good; sometimes for evil -- and so too, fears of religion.  And so it may be that the civilized conversation we can have here is not easily replicated out there simply because of the nature of politics, getting people mobilized, the way that Noah suggested.  So it may be something we just have to live with, which would be sad, but I don't have a solution. 

FELDMAN:  I think part of it has to do with the way that in politics no one is ever satisfied with just winning a particular debate.  If you can win a debate, you then want to move the goalposts to increase your chances of winning the next debate.  And I think that's where the real potential for conflict actually happens.  It's not just -- I mean, there's of course conflict if two different groups see an issue differently and they argue about it and they're each trying to lobby their congressman to get certain results and one wins and the other loses -- yeah, that's ordinary political fighting.  But rarely do they stop there. 

So we have constitutional politics, for example, where secularists -- legal secularists, as I sometimes call them, argue that religion should not be allowed into public discourse and then try to create constitutional rules that will make it harder -- will raise the barrier for religious folks to participate in that debate. 

And on the other side, you might have situations where people you might call "values evangelicals" -- I don't mean literally just evangelicals but people who evangelize for values -- also want to change the constitutional rules so that for example, state funds can be used to sustain their institutions, which will enable them to do a better job and win more future political debates.  And that's where I think you get the really heavy fighting.  And I don't think there's any solution to that.  I mean, this is an answer to your -- to try to be a direct answer to your question of why don't we all just get along.  (Laughter.)  It's because we're all trying to harden our advantage for the next time out. 

But that's just what constitutional politics always looks like, in my view.  And the test of a successful constitutional polity is that you keep that fighting within some bounds, and usually the bounds are nonviolence.  (Laughs.)  That's a pretty good bound to aim for.

AN-NA'IM:  So, just to close by saying that I can agree with Professor Feldman.  On this one I do agree with him -- that the point is that if you're -- I mean, when, we say open or closed, these are relative terms because it is relatively closed or relatively open, and also a question of how open or how closed -- in what ways?  And those are issues on which people are going to disagree constantly and permanently. 

And disagreement is good.  Conflict is good.  And in fact conflict is creative.  That's what makes us human.  It's part of our humanness is to be in disagreement because we tend to be distinctive as who we are, and that is not going to be who he is or who the next person is.  The only point is not to be violent about it. 

So the challenge is how to create normative institutions and mechanisms whereby we can negotiate our difference without resorting to violence.  Whenever we have this, there is no end to how open and variety of ways in which you can be open. 

MEAD:  Well, we never did get back to Professor Wright, but I think you'll -- Pastor Wright, but I think you'll agree with me this was still a very successful session.  (Laughter.)  We have lunch now, and we reconvene -- (applause) -- thank you.  

AN-NA'IM:  Thank you.

####

®FC¯END

®FL¯

.STX

      (C) COPYRIGHT 2008, FEDERAL NEWS SERVICE, INC., 1000 VERMONT AVE.

NW; 5TH FLOOR; WASHINGTON, DC - 20005, USA.  ALL RIGHTS RESERVED.  ANY REPRODUCTION, REDISTRIBUTION OR RETRANSMISSION IS EXPRESSLY PROHIBITED.

      UNAUTHORIZED REPRODUCTION, REDISTRIBUTION OR RETRANSMISSION CONSTITUTES A MISAPPROPRIATION UNDER APPLICABLE UNFAIR COMPETITION LAW, AND FEDERAL NEWS SERVICE, INC. RESERVES THE RIGHT TO PURSUE ALL REMEDIES AVAILABLE TO IT IN RESPECT TO SUCH MISAPPROPRIATION.

      FEDERAL NEWS SERVICE, INC. IS A PRIVATE FIRM AND IS NOT AFFILIATED WITH THE FEDERAL GOVERNMENT.  NO COPYRIGHT IS CLAIMED AS TO ANY PART OF THE ORIGINAL WORK PREPARED BY A UNITED STATES GOVERNMENT OFFICER OR EMPLOYEE AS PART OF THAT PERSON'S OFFICIAL DUTIES.

      FOR INFORMATION ON SUBSCRIBING TO FNS, PLEASE CALL CARINA NYBERG AT 202-347-1400.

      THIS IS A RUSH TRANSCRIPT.

-------------------------

This event is part of the Religion and Foreign Policy Symposia Series, which is made possible by the generous support of the Henry Luce Foundation.

WALTER RUSSELL MEAD:  All right.  May I have your attention, please.  Would everyone please sit down?

All right.  I'd like to welcome you to the second session of our Council on Foreign Relations seminar today.  This is a symposium on Religion and the Open Society.  This is our second session, on Religion-State Relation.

I am Walter Russell Mead, senior fellow for U.S. foreign policy.  It is my honor to introduce to you Abdullahi Ahmed An-Na'im, professor of law, Emory University Law School; Noah Feldman, professor of law, Harvard Law School and adjunct senior fellow here at the Council; and Philip Hamburger, professor of law, Columbia University Law School.  Welcome.  Welcome, everyone here, and also welcome to all of those who are joining our symposium this morning on video.

I'd like to remind you all that this is an on-the-record session, so anything that you say may be taken down in evidence and used against you.  (Laughter.) 

In our second session this morning we're going to try to follow up some of the lines of conversation that were introduced in the first session and also introduce some new themes. 

As the discussion was proceeding this morning, I was rather forcefully reminded that Abrahamic religions in particular -- that is, Judaism, Christianity, and Islam -- and some of the secular ideologies that have historically derived from that mix of religious cultures are bodies of thought which believe that there is a way the world ought to work.  There's a right way to live.  And obviously, if there's a right way to live, there are wrong ways to live.

And there are universal standards of justice, of conduct, that at least in theory ought to apply to all people everywhere.  And in human societies, as a general rule, there are states -- that is, bodies of organized authority whose mandate it is to see that things are run properly.

And so in Abrahamic societies, the relationship between the religion, which teaches us how the world ought to be run, and the state, that group of people whose job it is to run the world or at least to run that portion of the world under the authority of a particular state, have a charged relationship. 

Religious authorities will often, in sermons or otherwise, tell political authorities and state authorities how they ought to work.  Religious authorities will try to shape the conscience of voters in democratic societies so that the voters will vote for politicians who espouse the values that -- by which the state ought to run.  Certainly in our society in the United States we see many efforts, particularly in an election year, in which religious leaders of various kinds are trying to shape political outcomes.

Now, our three panelists today who, I guess, represent at least a good percentage of the faiths of the family of Abraham, are scholars who have spent a lot of time investigating the relationship of religion and state -- how it actually operates and how it ought to operate.  And I think it might be useful for the audience if we proceeded maybe just right down the panel and each of you share a kind of an overview of your sense of how religion and the state ought to operate, from your own particular perspective, whether that's a faith-based perspective or a more secular approach. 

And if you would like to start, Professor?

ABDULLAHI AHMED AN-NA'IM:  Good morning, everybody, and thank you for being here. 

I speak as a Muslim, so my perspective is religious.  And it is my perspective that indicates for me that I need the state to be secular in order for me to be the Muslim I choose to be.  And the only possibility of being Muslim is by choice. 

So I stake the secular state as a prerequisite, as one of the conditions for the possibility of being Muslim.  I may not be a good Muslim -- I'm sure I'm not -- but whatever degree of being Muslim it is, it has to be within a framework of a secular state.

But I make a distinction between the state and politics.  And I think this is a point that often, in the American system, is not clear enough -- that often people assume that separating church and state takes care of religion and politics.  (Laughter.)  My claim is that we need to deal with the other issue separately; that is, the state and religion should be separate.  By a secular state, I mean a state that is neutral regarding religious doctrine, but religion and politics cannot and should not be separated.

So the paradox is how -- for me is how to regulate and organize the connectedness of religion and politics in a way that safeguards the separation of religion and the state.

MEAD:  Okay.  Noah.

NOAH FELDMAN:  Thanks, Walter.  Thank you, Abdullahi. 

I just want to say quickly that I'm really grateful to be asked to participate on the panel with such distinguished scholars whose views I have drawn on in my own work.  I guess -- let me start with a quick historical point that draws on Walter's. 

I think that in modern Europe, one solution that was proffered to the problem of how to arrange religious affairs and the affairs of state was to suggest that the religion of the sovereign of the state would be the religion of the state.  You see this already in the Treaty of Augsburg, and then it becomes hardened at Westphalia, and it becomes in some way a basis for all of our modern thinking about church and state.

And that's easy to do when the sovereign is one guy.  When there's one person who is the king or the queen and says I'm the sovereign, that person picks a religion and then the state religion is that religion.  Now, of course, in practice, if that person flips religions, that makes things very complicated.  If you don't know whether that person is born into one religion or another, it makes things complicated.  But it sounds like a pretty good sort of working solution to the problem.

I don't think we would have the same set of church-state problems we have today if it weren't for a weird quirk that happened about a hundred years after that solution, and that quirk was the idea of popular sovereignty.  The core idea that underlies all of our democratic states, the core political idea, is this idea that it's not that one person is the sovereign; it's that all of the people are sovereign. 

Then if all of the people belong to the same religion, it's still not so difficult to say that the religion of the sovereign is the religion of the state, because if all of the people think of themselves as Muslims, and let's say they're the same -- belong to the same school of Islam, then you could still say that the state religion is the religion of that group of people and nobody will make much of an argument about it.

But if the sovereign people are plural with respect to religion, if they belong to lots of different religions, now you have a very serious practical problem.  How can you have the religion of the sovereign be the religion of the state if the sovereign belongs to many religions?  And it's at that point, I think, historically, that you start to see people saying maybe the state should not associate itself with any religion.  Maybe there shouldn't be any official religion.

Now, I wanted to use that historical background because I think it helps for me to see why I think that not every country in the world needs to have the exact same arrangement with respect to religion and government.

To my mind, there are some principles that are universal and should apply everywhere -- this goes to Walter's first point about the Abrahamic religions and their universalism -- and others that could be different in different places.

The parts that seem to me to be universal are the ideas of a basic human right to choose your religion.  Not everyone in the world necessarily agrees with this, but almost all of the great world religious traditions claim at least that there's no coercion in their religion.  The Koran actually says this explicitly, which gives it one step up on the Hebrew Bible or the New Testament.  But all of the world's religious traditions talk this way, I think it's fair to say.  Not all -- in fact, none -- are very good at implementing this in practice. 

But I think that that is enough of a universal value to say that every state, no matter where it is, even if it has an official religion, ought to allow people the freedom to choose their own religion, and with that comes the right as well not to be discriminated against on the basis of your religion.  To me, that's a universal value.

What's not a universal value, to me, is the idea of a secular state.  To me, if the society wants to arrange itself because the vast majority of people, or even just a slight majority of people prefer there to be an official state religion, provided that they grant every individual the basic human right to religious liberty, I think that that's just fine.  I think England is a good example of this.  There the established church may not be very active today.  It may be very difficult to find people in Anglican churches -- (laughter) -- but it's nevertheless the case that the Archbishop of Canterbury is a politically significant figure, not just because he says things that get people riled up every so often, but because he is connected to the organization of the state in an important way.

Similarly, in many Muslim countries, I think it would be practically absurd and, in principle, unnecessary to demand that the state not identify itself as Islamic, because that is what many, many, many -- the great majority, in many cases, of the population wants.  What is not absurd, however, is to insist in those cases that such states respect the basic human right to freedom of religion. 

And in a country like the United States where we have tremendous religious diversity, it would equally be absurd to say that we should have an established religion.  And as a matter of fact, our Constitution recognizes that and makes it impossible, at least formally, for there to be an established religion.

So I'll stop there, without claiming to have resolved any of the complicated difficulties that analysis raises, but at least it gives a framework for thinking that there are some things that everyone should do in every state, some rights that everyone should respect, but that the arrangement of church and state could still differ very significantly from place to place.

HAMBURGER:  Well, I confess I largely agree with what's been said thus far and -- in pursuing the theme that perhaps there can be variety in the world that's perfectly wholesome and that need not trouble us.  I can't help, though, observing that it may be easier to figure out what should not be than what should.  And that leads us to the very sort of narrow range of objections to sort of bullying that we don't like, that can come in many forms.  But that still leaves open many, many possibilities.  And fortunately, England is just one of them, though amusing these days.

It strikes me that religion is often treated in this country as something distinct from the state, something to be kept apart from it, perhaps something even dangerous.  And I -- one of the things one has to worry about is that Americans tend to forget the degree to which the state is itself constituted by religion.

Now, politically we find this an anathema to a Christian nation, but in a more profound sense, this is inevitable, and any anthropologist would point out you can hardly discuss a society without getting into its religion.

The very notion of equal liberty has its foundations in religion.  Now, we can claim equal liberty, equal rights, as some sort of right.  But if it's any more than just a demand, if it's actually going to be a moral duty -- for example, if slavery is immoral, and you actually have a duty to resist it.  If suicide is immoral, you have a duty to resist that -- where are we draw these conclusions from? 

And Locke has a lot to say about this, for all of his failings as a serious philosopher.  Nonetheless, on this point, he comes as close to profound as he ever gets, I think.  And we are too quick to forget that without the religious basis for equal rights, we would be impoverished and we might still have slavery.  So religion is fundamental to the very liberty that we think we sometimes need to protect from religion.

Second, it strikes me that in all societies, and although I'm not an expert in the Middle East, I gather from scholars of the Ottoman Empire that there are a lot of sermons, even in the 14th century, that are very similar to Christian sermons being given at the same time about the role of religion as part of the social structure.  If you want a degree of freedom from severe laws, you'd better hope these moral constraints (is ?) a fairly successful sort.  And religion inevitably has its own way of accomplishing that.

And then finally, it was only recently that we have escaped the notion that we have a government ordained by God.  And in the West we may think we're above religion now -- almost, perhaps, above God.  But in most of the world, such heady thoughts haven't yet permeated quite so far.  And it strikes me that if we are going to talk about religious liberty, we have to keep in mind the fairly -- importance of religion, even to the secular state. 

But I'll stop there.  Thank you.

MEAD:  Very good.

Well, I'm taking away a couple of things here.  One is I've been reminded again of just the sheer diversity of relationships that exist between religion and the state, even in the so-called Christian, so-called West.  So we not only have England, where the queen can't marry a Catholic or become a Catholic.  In Argentina, the president of the Argentine Republic must be a Roman Catholic, something that caused Carlos Menem to get baptized. 

In Germany, the president of the republic can be any religion he chooses or doesn't choose, but if you do sign up for church membership, the state will take a percentage of your income in tax each year and give it to those the state chooses to recognize as the legitimate authorities of the religion which you profess. 

So we can find all kinds of varieties with -- and yet it's interesting that all -- that certainly Germany, Argentina, and Britain, if you asked most citizens of those states do you live in a secular country, they would answer probably yes.  And it's -- while Americans like to talk about how much more religious America is than, say, Germany, I've been reminded by a member of the German Bundestag there are actually more doctors of divinity in the German parliament than in the American Congress.  That may explain something; I'm not quite sure what.  (Laughter.)

But then also I'm reminded, listening to the panelists, that our visions of what is the proper relationship of religion and state are often profoundly shaped by our own religious views.  There's the story in Belfast of a guy who's whisked into an alley by masked gunmen who point a gun to his head and they say what are you, Catholic or Protestant?  He goes, I'm an atheist!  I'm an atheist!  The gunmen think for a second and they say well, are you a Catholic atheist or a Protestant atheist?  (Laughter.)

And there's a sense in which a society can be Protestant secular or Catholic secular or Muslim secular, and those are not always the same thing. 

And what I'd like to do is ask the panelists to explore -- I think this is building on something that Philip said, that in America, certainly, our idea of this separation of church and state, or the relationship, is profoundly based on the overwhelming sort of Protestant character -- and Noah's written about this as well -- of our people at the time of -- you know, in the early American republic.

To what extent is that experience -- you may have some thoughts here, too -- applicable to people of other religious traditions and backgrounds, or how do we have to reconsider what seems to us to be natural in terms of separation of church and state that would work differently in another culture with a different background? 

Would you like to start on that, Phil?

HAMBURGER:  Sure.  Something you may know, I have a certain distaste for the notion of separation of church and state because, by accident, I fell into studying it and, to my horror, found out more about American history than I wanted to know.  (Laughter.)

To put it very bluntly, it's attributed straight to Jefferson, but it's popular --because of theological prejudice, a distaste for Catholicism, particularly Irish Catholic immigrants, the goal was to separate the church from the state.  And it's far from being a minoritarian position; it's a majoritarian position.  It's about protecting the majority of free individuals and their direct relationship to the state from a church which would exert its influence upon the people and deprive them of their mental liberty, thus debilitating them from being good citizens.

And in fact, if you -- just think for a minute.  Which is the organization that most popularized this idea in the first half of the 20th century?  The ACLU?  No.  The Ku Klux Klan.  And once that settles in, you get the idea.

So this fits in with what Noah was saying earlier.  It strikes me that it's very dangerous for us Americans to go around the world talking in broad generalities that seem natural to us, but may be only because we haven't looked at ourselves too carefully.

Our most common generalizations are separation of church and state and democracy.  Well, God help us if that's what we're exporting, and God help the rest of the world.

Democracy isn't what we practice here and it's the last thing we should wish on anyone else.  Our Founders quite deliberately established a republic.  And when one talks about democracy in many parts of the world, it sounds like majority rule.  In fact, it could have an almost fascist implication in some parts of the world.  One has to be very, very careful about overgeneralization.

And by the same token, I think separation of church and state imposes, as Noah suggested, such a high burden on nations for which this is just incompatible, obviously incompatible with their history.  So the best thing we need -- and this fits in with the views of my colleague from Emory -- we need a little modesty, not only in contemplating religion, but also our own propaganda. 

There's an old line from World War I about propaganda: one will not quite persuade one's enemies, and almost defeat oneself.  And I fear separation leads us in that direction.

MEAD:  Abdullahi, would you like to --

AN-NA'IM:  Okay.  I think various ideas will determine that the secular state everywhere is distinctive, historic, and contextual.  I mean, there are no two identical secular states anywhere. 

So secularism, or secular states, and the question of the relationship between religion and the state and religion and politics, which I try to always emphasize are different propositions, this relationship is contextual and historical.  And therefore every society has to negotiate this for itself over time, and this negotiation can go one way or the other.

But I think the -- one point I would like to bring to our discussion is I think we tend to dichotomize too much the secular and the religious.  And the so-called secular-religious dichotomy I think is overstated because religion becomes relevant in the secular world.  It is not the abstract sort of sensuality.  It is -- the relevance of religion in guiding people live -- lies in this world.  And therefore there is an inherent connectedness between the two.

Just referring back to what this morning was being said about the Koran and about the possibility of reinterpretation and so on, Ali ibn Abi Talib, the fourth caliph and the prophets' cousin and -- for the Shi'a, he is the first imam.  He said the Koran does not speak.  It is people who speak for the Koran.

And the point is that the Koran is a revelation to me as a Muslim, is divine to me as a Muslim.  But as soon as it enters human comprehension, it become secular.  It enters into this world to tell me how to live my life in this world.  And because every comprehension of the Koran is a human comprehension -- of course the possibility that there is more to the Koran than what humans can comprehend remains in the realm of individual religious experience. 

But collectively, socially, we are always dealing with someone's understanding of the Koran.  That makes me nervous about calling the state Islamic.  I don't believe that the state was ever Islamic.  Not a single day.  The state is a political institution.  It is incapable of having a religion.

Whenever we give the adjective of a religious state to any state, what we are saying is that, as you said rightly, it is the religion of the ruling elite.  So once you see it is not the religion of the state as such, but the religion of the ruling elite, you see how dangerous it is to permit the elite to attribute their religious belief to the state which we all share.

I would rather have it for me to negotiate what role Shari'a has in society and in the state in a framework that ensures a degree of equality of human rights, of freedom of religion and other freedoms.  And the proscription, as Professor Feldman describes, is to say the state can't have a religion, but at the same ensure freedom of religion for everybody, is a contradiction. 

The very fact that the state identifies with a religion is, by definition, a violation of freedom of religion.  And for that reason, I will try to strive to keep the state neutral, realizing it is not easy.  It's a constant struggle.  And where in the realm of politics to enable people to identify religiously as also as citizens in a variety of ways.

FELDMAN:  It would be very boring for the audience if we all agreed on everything, so I'm glad that we're hitting -- the rubber's meeting the road here a little bit. 

So I'm going to disagree, first with Abdullahi and then with Philip, if I might, and the framework for my disagreement is the same in both cases.  And it's the observation that when we use words that are big, grand words -- which I usually --

I have a 2-year-old son, and I know I'm dealing with a big, grand word when I can't point to the thing when I define it.  Right?  If he wants to know what a chair is, I can point to the chair.  If he wants to know what religion is, I can't point to anything in particular.  The same is true of the state.  I can't point to anyone; there's nothing I -- these are true abstractions, right?

When we talk about abstractions, which we have to do because much of our world is shaped out of these abstractions, we're never defining them in some way that is objectively correct.  We're always injecting into what we say the way we think they should be.

When we say, "religion is," what we mean is religion is and should be.  The same is true when we talk about the state.  They're just two, the two that happen to be in play in this conversation.

Now, when we talk about can there be such a thing as an Islamic state, I understand that argument, the political and religious argument that says no, there can be no such thing as an Islamic state because Islam is a faith and the state is not a faith.  There can be the religion of the people who run the state.

But if all of the people who run the state and organize the institutions of the state say that their state is religious -- right? -- if they assert this and if they have institutions that exist in the real world that they administer according to these ideas, if there are certain people who are in charge of deciding on this aspect of the expenditure of funds with regard to religion, and this group of people who are in charge of that aspect of making sure that -- I don't know -- as in Saudi Arabia, that people attend the mosque.  You know, if you're in the marketplace and prayer time comes in Saudi Arabia, someone comes along and urges you to attend the mosque.  And if notice that you're not a Muslim, then they say oh, sorry -- you know? -- not you.

But if you have people these sorts of things, then it's practically useful to be able to say that you're speaking in the context of an Islamic state, and that's all I need, I think, for me to be able to say that people may speak of themselves as having an Islamic state.

Now, is there a certain contradiction between that and the idea that some citizens would nevertheless be free to exercise their religious rights? And here I'm going to turn to Philip.  So this is the point that Abdullahi made.  There is a contradiction here.

I agree that there's some tension, because if all the people who run the state are saying this is an Islamic state, the person who's a non-Muslim may feel marginal, may have the experience of feeling like, well, wait a minute.  It's not my state.  I don't fully participate in that state.  Right?  And I agree that that can be a subjective experience that the person will have -- will be likely to have.

If, however, they have that feeling, I don't think it follows from that that they are not free to act in the realm of their own religion.  They might not be free.  You might have a great tendency to take away their rights, but it doesn't necessarily follow, I don't think, that they are not free to act in the realm of their own religion. 

And let me just give a practical example of why this so, and here I'll turn to -- my disagreement -- this is apart of where Philip and I disagree.  Although I think Philip and I often agree on the bottom line, we almost always disagree completely about how to get there.  (Laughter.)

So if you look at the Protestant tradition of the separation of church and state, which Philip has done so much to elucidate, it begins with the idea that the state does have a religion, but that that religion demands equal liberty and free choice of religion for each of its citizens.  Right?  Now, not everyone in the Protestant tradition says this, but let's just take Locke, whom Philip mentioned, who for Americans, at least, is the most influential thinker about the relationship between religion and government, I would argue.  

Locke, in his famous letter on toleration, does say that there's no such thing under the gospels as a Christian commonwealth.  He thinks there was a Jewish commonwealth under the Hebrew Bible, but that because of Christian liberty, there's no such thing as a truly Christian commonwealth.  So actually he agrees with Abdullahi on that point.

But he's imagining that the Church of England will remain the established church, and he is imagining that government money and church money will be fully intertwined.  But he thinks that his own religion, which is the religion of the state, in effect, itself demands -- and he makes a religious argument for this -- itself demands that each person be left free to choose his own religion, because the religion wants free choice of faith, and not coerced choice of faith.

Now, does that make separation of church and state a Protestant idea?  In some sense, yeah.  Yes, it does, in America.  And once you see that it's a Protestant idea, it's impossible to disentangle it from a long strain of anti-Catholicism in English-speaking Protestantism.  And so when you look at the historical materials, as Philip does very well in his very important book on this subject, you see, and what do you know -- the same people who were advocating religious liberty are also not in favor of the Catholic Church -- which, they note, as late as the 1860s and '70s says that, quote, "Liberty of conscience is a delirimentum."  Walter's Latin is better than mine, but it's nothing good to say that something is -- it's a, you know, a false imagining.  Something that you ought not to believe.  Right? 

So there's an actual disagreement there on whether the liberty of conscience is in fact an important value -- and, of course, the Catholic Church has changed its view on this radically since that time, and that's wonderful.  But the fact is that once you acknowledge in a historical sense that there is something distinctively Protestant about this development of separation of church and state, you find all the nasty stuff, too.  But that's okay -- and this is where Philip and I disagree.

You find the nasty stuff -- and he's right that it's there, but that doesn't trouble me very much, because all traditions of thought, whether they're religious, secular, or otherwise, have this nasty stuff caught up in it.  So when I read the new atheists, as they are -- they're sometimes called, you know, these writers who get so much attention these days who are, in fact, amazingly similar to the atheists of the 1870s and '80s. 

I mean, in fact, almost all of the arguments, with only a few exceptions, can already be found in those earlier texts.  So once a century they get their chance to really, you know -- (laughter) -- flex and stretch their muscles, and that's probably a good thing.  They're focusing on nasty things that religion has done, and it's almost never the case that they're wrong.  The nasty things they say religion has done, it has done.  But so has every other ideology. 

I'll leave it there.

AN-NA'IM:  Can I --

MEAD:  Sure.

AN-NA'IM:  I'm saying just about the -- because when you say when all the Muslims of a country say that we want our -- or say to me -- Muslims never agree on anything -- never agree.  But the day the prophet died, and before he was buried, Muslims disagreed about how to succeed and who to succeed.  So disagreements have been -- (inaudible) -- you will never agree and you will always disagree, and it's only God in the next life who will adjudicate your differences among you; several verses to this extent.

So the point is that my problem with a -- Islamic state is that what does Islamic mean?  When we cannot agree on what Islamic means, using the term is confusing; in fact, dangerous, because it hides all the nasty stuff that he was talking about behind this veneer of Islamic, so that it becomes harder to challenge it.

He gives an example of Saudi Arabia.  In Saudi Arabia, there is a significant minority of Shi'a in eastern Arabia.  I don't like to say Saudi Arabia.  I like to say Arabia.  How can you name a country after a family?  In Arabia, there is significant Shi'a in the east to whom the Wahhabi doctrine of the state is a heresy, and they are obliged to live under this heresy as the law of the state.

And when you see that Iran is an Islamic state and Saudi Arabia is an Islamic state, what will it mean when, to each of them, the other is a heresy?  So the term Islamic becomes totally incoherent.  You know, as you travel in the region, you will find that people call Islamic law -- Islamic sort of -- (inaudible) -- the term is overused that there is no thought as to exactly what we mean by it.  And when we look closely to what we mean by it, we see that no Muslims of any country will agree on what their state is when they call it an Islamic state.

All of this is to be in the realm of politics.  And that's why I will say let people affirm their Islamic identity and values through politics, but not through a state institutions, which is what I need to have for it to be possible for me to negotiate Shari'a in politics.

MEAD:  Philip.

PHILIP HAMBURGER:  I'm not learned enough to take a position on Islamic law such as Professor An-Na'im just did, but in defense of -- of his position against Professor Feldman's, I must say I fear that Professor Feldman, in defense of his view that there should be possibly should admit there to be an Islamic state, looks to Europe to say, "Well, there are Christian states there."  And it strikes me that, at least in the Anglo-American tradition, which is the freer part of the European tradition, that's not so clear.

So, yes, there would have been a social establishment of Christianity, particularly Anglicanism in England.  And, yes, the monarch is the head of the English church, but if one looks at the theological and political writings of the late 17th century and early 18th century, defending Anglican establishments, the writings that Americans look to and understand, the argument isn't the state is religious, let alone that it's Protestant, let alone that it's Anglican, but rather that there's an alliance between church and state.

So even in the English church's own writings, it's not asserted that there's an Anglican church -- I'm sorry -- an Anglican state, except in the strongest -- (inaudible) -- Tory writings.  In the mainstream English writings, for example, by Bishop Warburton is about an alliance of church and state, in which he does very interesting Madisonian-style reasons.  And so it's really, I think, much more cautious.  So I don't think we can look to Europe and say, "Well, that's what the Europeans did.  Therefore, we should be comfortable with a religious state elsewhere."

I'd also like to disagree, much as I appreciate Professor Feldman's views on this, with his casual use of separation of church and state, as if that is what we're talking about when we talk about disestablishment.  Disestablishment and separation are very different metaphors.  Establishment is about one object elevating another, and therefore it's about a restraint on the government elevating the church.  Separation of church and state, which we think of horizontally, it's about keeping apart two institutions, and necessarily it limits both.  And instead of talking about religion generally, it focuses on organized religion rather than individual spirituality.

So it seems to me, yes, a lot of violence has been pursued in this country even in the name of separation of church and state, as well as in the name of religion.  But that's not our ideal.  Our ideal is actually quite carefully drafted in the Constitution.  It's about disestablishment.

And then, finally, I can't help talking about violence, since that's what lies behind so much of this, right?  We're not talking about violence -- "Let's have some fun" -- because violence has its fun aspect, unfortunately; we're human, and we indulge in it occasionally.  So if it looks back, as the Supreme Court likes to do, they'll say, "Oh, we have to be careful of divisiveness and religious violence," and they allude to Europe, particularly the happy years of the 16th and 17th century when there was a lot of violence.

It's by no means clear that religion has a monopoly on this.  In fact, religion turned out to be rather inefficient.  The Inquisition only killed a few thousand people.  What were they up to?  Their mind was on God, not on the efficiency of killing.  And it strikes me that the secular state in the past century has really done a much better job of it, if you're into that sort of thing, which gets to the larger set of issues, I think, here that we haven't yet discussed, the relationship, as it were, social structures, if we include religion amongst these.

So let's not talk about religion.  I agree with Professor Feldman about this.  It's an amorphous concept.  Let's think just for a minute; not say this is what religion really is, but about unrealistic aspirations for purity and transcendence.

Now, if that is part of the human condition, how should it be pursued, with unrealistic aspirations for purity and transcendence in this world or another world?  And which is more dangerous?  I don't know that I know the answer.  But it's by no means clear to me that pursuing those unrealistic aspirations in another world is more dangerous than in this world.  And I think, sadly, the comparisons to the Soviet Union and the proceedings of the 16th Century illustrate that.

MEAD:  All right.  Boy, well, you certainly know how to bring the fun into a gathering.  (Laughter.)

HAMBURGER:  I don't like violence myself, but it's fun to talk about.

MEAD:  All right.  Well, I think, speaking of fun, maybe it's time to give the audience some and open this up for questions.  Again, I'd like to remind you that a question is a statement which can be grammatically ended with a question mark.  (Laughter.)  One can usually tell one's being asked a question by sort of a rising inflection that comes at the end of the sentence.  And questions are, generally speaking, rather short.

So if anybody has questions, please raise your hand.  We'll bring a microphone to you.  State your name and your affiliation for the sake of those watching by video.

QUESTIONER:  Charles Harper, John Templeton Foundation.

I want to state a thesis as a question for all of you.  Do you think that strategically, for the Council on Foreign Relations and the United States generally, that this issue for intellectuals of clarifying the difference in religion between a situation before and after an American-style politic -- constitutionally of the separation of state power from religious culture, do you see that as something that's vital for American intellectuals to engage with in the world to clarify what the American experiment and experience has been?

MEAD:  So if I rephrase that, gentlemen, does your life's work have any meaning or purpose?  (Laughter.)  Anybody want to jump in there?

FELDMAN:  One think that I think is fair to say is that, though it's obviously crucially important in the American realm for us to understand what we're doing ourselves domestically, we shouldn't draw the conclusion from that that once we've figured it out, then we'll have something we can hold their hands and export.

I mean, one of the weirdest experiences of my life was sitting in the Green Zone and hearing U.S. government officials, who were aligned with the political movement of deeply skeptical of, for example, the idea of a secular state -- we don't have a secular state here -- saying things like, "The most important thing we have to keep in mind for the new Iraq is that there must be a strictly secular state."

First of all, it bespoke a willingness to sort of imagine something on the U.S. side that they themselves denied exists on the U.S. side.  But second of all, it bespoke this idea that they knew exactly what we had in the United States and we should export that.

So I want to (exploit ?) all of that -- (inaudible).  I think the other panelists do too.  We do want to understand what we have here.  We want to understand the fights that we still have in the United States, the lack of clarity that we have.  And then we want to realize that whatever the lack of -- (inaudible) -- that we have is, that's probably not the suitable thing to impose on anybody else.  At least that's my own view.

MEAD:  They should have their own lack of clarity.

FELDMAN:  Exactly.  They should have their own version of confusion.

And this is the last thing I would say.  I mean, a constitutional tradition that works is one that is in a constant state of dynamic evolution.  You have a written constitution that says "x," but no constitutional system works if it just follows what's in that written constitution and never changes.  Interpretation gives it the freedom to change.  And if it doesn't even have a text, so much the better, often, because then you have a little bit more freedom for the dynamism.

So everyone's going to have some complex dynamic unresolved form of the relationship between religion and government, but they shouldn't all have the same confusion.

MEAD:   Abdullahi, do you want to --

AN-NA'IM:  I was going to -- I am from Sudan.  At this point I am an American citizen, but I am from Sudan and am formed by being from Sudan.  And one term or concept, idea that has not really been raised much is colonialism.  Much of what we see is post-colonialism, that it is more informed by colonialism than it is by anything else about Muslim societies and their history.

The Islamic state discourse is a post-colonial discourse, because one position that we have not clarified, what do we mean by the state?  The form of state -- the type of state that we now live with is a European model of the state.  And the idea of law that Muslims -- when Muslims talk about an Islamic state before Shari'a, they think of it as Shari'a as positive law; European idea of law, European idea of the state.

So it's a contradiction, I think, to claim to affirm Islamic identity through two European institutions, the state and law.  The type of state that Muslims lived with historically is a very different type of state than the state they are living with now in the post-colonial.

Now, coming to the American, also one question.  Iraq was mentioned a couple of times.  But the fact is that Iraq has been a colonial experience; that is, the United States has colonized and is still colonizing Iraq.  Iraq is not a sovereign state now, as we speak.  And probably in my book, the biggest moral failure of the United States since the Second World War has been the invasion, occupation and colonization of Iraq.

And this event, if we can call it an event, has done sort of horrendous consequences for decades to come and outraged, completely outraged, that we can talk about it as if it is something that happened and, okay, we'll just now deal with the consequences.  No, it has to be condemned for having happened in the first place.  And thus, having had to be condemned for having done it, now the impulse is the Americans go out in the world to engage in conversation about the American experience -- absolutely fine, wonderful.  In fact, we do this all the time.

I studied constitutional law with an American professor in the 1960s in Sudan, and I learned a lot from him.  And I continue to learn from my American experience.  But if you send your armies to missionize for your view of what freedom of religion is and what church and state is, that's completely unacceptable and utterly counterproductive.

FELDMAN:  Just for the record, I mean, we did invade Iraq; there's no question.  And there's no question, further, that our presence there has features that are in common with colonialism, or with imperialism maybe more precisely.  But if you look at the constitutional structure that emerged in Iraq, it has nothing to do with the U.S. constitutional structure.  I mean, for better or worse, it makes Iraq an Islamic state and says that no law passed may violate the judgments of Islam.  I mean, it says that when it comes to family law -- I mean, you can say these are terrible things.  I think you do think they're terrible things.  But whatever they are, they're not American things.

AN-NA'IM:  No, but the fact is that it was drafted during an American occupation, that the people of Iraq -- I mean, the question is also Britain colonized Sudan and Uganda and Kenya; I mean, most of African states.  And it was -- and the French did it too.  At the end of the colonial period, they drafted a constitution in Lancaster House in England for the new state to just go on and become independent and sovereign as of today, because we have made you sovereign.

When our secretary of State sends a letter to the government of Iraq to say that "We have your sovereignty for a year.  Here, have it back.  But we will keep 150,000 troops heavily armed under foreign command who will protect you from your own population, but you are a sovereign state."  The constitution of Iraq has not happened.  And the fact that you have a document called the constitution of Iraq is not and does not make it the constitution of Iraq.

You know, constitutions are not made in documents.  Constitutions are hearts and minds of people.  And until the people of Iraq have the freedom and the stability and the ability to draft their own constitution completely free, without any foreign advisers, without technocrats telling them how to draft this or how to work it out or not work it out, it is not a constitution.

MEAD:  Well, I think -- let's try to -- points taken, but let's try to keep this on the broader agenda of responding, I think, to the question of, you know, the validity -- sort of the importance for American foreign policy of trying to understand this issue of religious --

HAMBURGER:  I do want to get back to the original question.  I just cannot help engaging a little bit on this point.

MEAD:  Please don't.  (Laughter.)

HAMBURGER:  One sentence.  It's simply that if one takes everything that Professor An-Na'im just said as true, it just does strike me that we won't have to worry that the colonial discourse tends to lead us only to look at some tragedies and not others.  And I think if one's really to be concerned about the people of any nation in this world, as a human being, one has to recognize disasters can happen from any direction, including from within, and that's certainly been the case with Iraq.

Now, getting back to the question, though, it strikes me that, yes, we do need to be engaging.  I almost agreed with Noah there until he went on about the living constitution, and then I had to back -- can't win 'em all.  It strikes me that we have had a remarkable experience here, perhaps just by accident.  None of us in this room, I think, can take credit for it, but we have lived in a genuinely blessed country in a blessed period of time where it is just not normal in human experience to have what we have in the United States.

And by whatever grace that is, I think it is worth talking about.  It's worth talking about with all the caution that my colleagues have mentioned, because we don't know which elements are essential, and there's a danger we will misstate it, so we need to be very modest about it.  And it may be that we should not impose this; that's surely true.  And yet, at the same time, just to show the model of living, a Lutheran pastor once explained to me how he reached his congregation, and he said to me, "I don't have a congregation; I just try to live right, and people notice that."

And we can take the same approach.  But I think, at the same time, one can't just live right.  One has to talk about it.  And, yes, we need to be engaged with a sense of prudence, with a sense of the diversity of the world, but sharing at least the model so that people can adapt from it what I think they will undoubtedly find deeply attractive.  And frankly, people across the world do.

MEAD:  And I would probably add, from the standpoint of the Council on Foreign Relations, or at least some of us here, we think that certainly since September 11th, but a lot of events before that, have raised the importance of trying to get a clearer understanding in the U.S. of how our own traditions have evolved in this respect and then trying to understand better where those do and don't intersect with the experiences of other societies and what usefully can we do to try to advance some of the universal values that Noah was talking about in these very different contexts.

Sir.

QUESTIONER:  Jim Dingman, INN World Report.

When one travels to Europe, one's constantly confronted with the question of "What are you Americans doing letting these fundamentalist Christians dominate your foreign policy?"  All the time last fall, I got that continually.  And we know that operationally that influence has been realized in the HIV-AIDS policy of Bush's administration in Africa.

And I wanted to get your take on that and also how people in Europe are perceiving how religion is in the election process.  For example, we've had three weeks of Jeremiah Wright being thrown at us, and that has, of course, been perceived differently in Europe than in the United States.  I wanted to know how you see those things.

FELDMAN:  We're on the record, right?

MEAD:  No, go right ahead; sounds like you're itching to go.

FELDMAN:  Well, I mean, look, on the first point I would say welcome to participatory democracy.  There are all these foreign policy elites; some of them may be in this room.  Some of the people who helped create this room, who think that it might not be such a good idea for the general democratic population -- here I mean democratic, not a small "r" republican -- to be involved in foreign policymaking, right, because they think, "Wow, what happens when that happens is that all those people out there have these views that we elites don't agree with will impact our foreign policy -- yuk."

Now, you know, one of the costs of the democratization of foreign policy in the last 115 years, which is itself in part of a very complicated story that Walter has told part of very brilliantly of post-Cold War changes in the way foreign policy is shaped, one of the consequences of this democratization of foreign policy debates is that constituencies that historically didn't do that much or weren't able to do that much to affect our foreign policy now can and do.

I think that in many particular cases -- the one you mentioned is a good one -- I don't agree with what that particular constituency wants our foreign policy to be.  But I completely disagree that it somehow follows from that that public voices should be excluded from our foreign policy judgments.  I think if you're serious about being a democracy, you need to acknowledge that.

And when you make your foreign policy, you have to think seriously about the fact that that foreign policy is now going to be shaped in the long run by what the general public believes.  I think that's got to be now part of the foreign policy calculus.  When you decide to do something, you can't think, for example, that the next administration, even if it's of a different party, will do just what you expect it to do.  That's a mistake, I think, now in foreign policy, where then maybe it wasn't the case in certain aspects of the Cold War.  So that's on the first half of the question, and I'll leave Jeremiah Wright to my colleagues.

HAMBURGER:  I just want to comment on the notion of fundamentalists anywhere.  Who are the fundamentalists, right?  Fundamentalists are a small group that are more generally known as evangelicals.  The number of fundamentalists in this country who were actually traditional fundamentalists are tiny.  I mean, how many premillenarian literalists are there in this country?  That's not most evangelicals.

And so when people criticize fundamentalists, they're revealing a certain theological ignorance, I fear.  And what particularly worries me is that this is a theologically (inflected ?) term.  This is saying some people believe in fundamentals.  In other words, they believe in orthodoxies.  We are theologically liberal.  The implication is, "And we don't have orthodoxies."  And somehow this gets into class distinctions, too -- the educated versus uneducated and the rest.  And so I think we have to be very careful with labels.  Most evangelicals are highly individualistic.  Most of them are not fundamentalist in the traditional term.

And just a final thought here.  Since I am interested so much in the bullying of religious minorities, we would not ordinarily take the label for a small minority and treat that as a label for some sort of social ill or theological ill.  You know, if you're worried about some sort of habit that you associate with a particular religion, you wouldn't say, "How Protestant of you.  How Catholic of you.  How Islamic of you.  How Jewish of you."  We think how prejudiced that would be.  But we don't hesitate to say, "Gee, that's very fundamentalist," and we're not even talking about fundamentalists.  We're using minority label.

And so I just feel a lot of these criticisms don't even understand the theologies involved.  Now, it may be right, as Noah points out.  Perhaps we might disagree with the policies.  But that's a different issue altogether.

MEAD:  Yes.

QUESTIONER:  (Inaudible.)

MEAD:  I have a feeling we'll come back to Jeremiah Wright.

QUESTIONER:  I'm definitely not Jeremiah --

MEAD:  He'll take care of himself.

QUESTIONER:  Thank you.

I'd like to ask you to express an opinion.  Mr. Ratzinger, who has chosen the name of Pope Benedict XVI --

MEAD:  Are you a Protestant, by any chance?

QUESTIONER:  There's a chance.  There's a chance.  I'd like to ask you to comment on this too.  And I know you're the fair-minded moderator here.  I will not try to quote him, because he did it in Latin and my Latin is not that good.  But he said at one point here three or four months something to the effect that he would support the building of mosques in Rome when the Saudi government permitted the building of churches in Riyadh.  Would you comment on that?

AN-NA'IM:  There is so much more to the Muslim world than Saudi Arabia.

QUESTIONER:  (Off mike.)

AN-NA'IM:  (Laughs.)  Because he said Riyadh, so -- at least to be clear.  I made my point about the family and the country.  But now what I'm saying is this.  I noticed also this morning already that there is so much focus on the Middle East as if it is representative of the Muslim world at large.

The Arab Muslim region is about 10 (percent) to 12 percent of the total Muslim population -- 10 (percent) to 12 percent.  There are more Muslims in sub-Saharan Africa than there are Muslims in the Middle East.  There are -- India is the second-largest Muslim country in the world, or third, probably, when you compare it to Pakistan.

The point is that so much Muslims and Islam historically, as well as currently, are not anything to do with the Middle East; in fact, quite different, very much different, that -- so that I think for the pope's remark, I think it is unfair to sort of prejudge Muslims' attitudes about churches and Christian-Muslim relations and so on by what goes on in Arabia or Saudi Arabia, as your choice.

In that sense, the point is that also, I would say, I would hope that a pope would be more visionary and more leading the Christians than this tit-for-tat attitude.  He should say that "I would support building a mosque in Rome regardless of what" -- because he should be driven by his own religious conviction as a Christian, not by what -- and this is exactly what Muslims are doing now when they are (ranting ?) against the United States and condemning everything that's good about this country because they hate some aspects of the foreign policy of this country.

What the United States does or does not do should not define what I do or not do and my right as a Muslim.  And I would hope that the pope would think "What does my religious conviction as a Christian leader lead me to do about mosques in Rome?" rather than being defined by what Muslim leaders do or prefer to do in other countries.

MEAD:  I suppose the king of Saudi Arabia might also reply, "We'll separate mosque from state in Saudi Arabia when you do it in the Vatican, your holiness," and see what he gets.

QUESTIONER:  Hi.  Assam Rehman (sp), Muslim Bar Association of New York.

Just to take advantage of the fact that we have three law professors, I wanted to ask your opinion on the role of religious judicial bodies.  This is something that was discussed earlier this morning, but perhaps each of you can comment, because, for example, Professor An-Na'im, you talked about keeping religion out of the institutions.  How does that concept inform the existence of a judicial body or even a scholar who is empowered by the state to adjudicate matters?  Professor Feldman, you wrote about this recently.  I'd like to get your views as legal experts on that matter.

(Off mike commentary.) 

AN-NA'IM:  Okay.  You might be surprised, but I am opposed to what the archbishop has proposed.  I think it is bad for the state institutions to enforce religious adjudication.  Religious adjudication and other types of adjudication happen all the time.  And we can never stop it, and, in fact, we can encourage it.

My objection comes when you involve a state institution in enforcing the outcome of -- (inaudible) -- our situation.  If it is freely chosen by the parties, you can have types of issues where that happens outside the state institutions, and it will happen outside the state institutions, and it is good that it happens.

But implicating the state institutions into enforcing religious adjudication is dangerous for the state and for the religion.  Now, one point is that when -- say, if you have a Shari'a-based arbitrational family dispute in Britain go before English courts to enforce, is the court going to review only the procedural aspects, or is it going to review the substantive aspects?  Or is it going to enforce based on the authority of those who adjudicate it without questioning looking into what really went on and what are the issues?

Now, is an English court competent in Shari'a to be able to review adjudication outcomes?  If it is not, is it going to enforce an adjudication that it has no way of evaluating in terms of its good or bad nature, and so on?  Now, the point is that the realm of community life are very much -- I think my sense of separation of church and state, as you said, is protecting the state from religion and religion from the state.  And in that light, I would be opposed to enforcement of religious education.

Now, another point to add; I don't know how much time -- time, of course, is short.  The thing is, what is the Shari'a authorization for this selectivity, because if what you are doing is enforcing Shari'a, Shari'a has a lot to say on everything.  How come that you choose this particular limited issue and exclude all other issues on which Shari'a is as authoritative as it is on this issue?

In the sort of Ontario case, the same proposal was made in Ontario.  And the proposal was made excluding custody-of-children issues.  Because custody of children is a federal jurisdiction, so they were saying in Ontario, "Let us do it in other issues, not with custody of children."  How can you deal with a family dispute without including custody-of-children issues as a factor simply because the state structure is such that this is outside the realm of the provincial?  That is the sort of confusion that is bound to come through if you try to do this sort of thing.

HAMBURGER:  If I could just add a word here, for 480 years the law of the land has had complete obligation, within the jurisdiction of the common-law nations.  There is no room for a distinct jurisdiction independent of it.  And although in England church courts can be authorized by the state, it's always under their complete authority of the law of the land.  And that's just fundamental.  That's why our constitution refers to the supreme law of the land. 

And I agree with Professor An-Na'im.  It's very, very dangerous to start breaking that down.  That can go in a lot of different directions.  This was the split between the Catholic Church in England in the 1530s, and there's just nothing as fundamental as the complete force of the law of the land in jurisdiction.  And we're familiar with this in many areas, in questions of race, questions of religion and so forth.

There is some room for contractual arrangements by which individuals put themselves into someone else's judgment, be it religious or commercial, right?  But the secular courts must always have competence to decide the matter ultimately.  And to inquire, which is genuinely voluntary, there's potential for this to go in a very dangerous direction, and not, incidentally, to the advantage of Muslims.

FELDMAN:  Here I disagree with my colleagues.  To me, this question comes under the general category of things you could do differently in different countries, provided that basic human rights are respected.  And I would note that in his pretty tentative speech, if you actually read it, which obviously very few people have done -- in this room I'm sure many have, but in the world, very few people have done -- the archbishop of Canterbury spoke of, first of all -- the background assumption of the talk was that, of course, the laws of the state would ultimately be the ones that authorized the local court -- the arbitral body, and that the state law would be the supreme law of the land.  He was very explicit in this respect, and he also said very explicitly that equality of men and women would have to be respected, that that would trump any particular Islamic principles, and so forth and so on.

Now, I think it's worth noting the difference in approach -- and this goes back to the previous question -- between Pope Benedict and the archbishop of Canterbury because they both lead -- once much larger, but they both lead big Christian denominations -- when it comes to dealing with the question of Islam.  Pope Benedict's verbal practice thus far and his experience have been to be, let's say, on occasion sharply negative about aspects of Islam.  That has brought him a lot of opposition in the Muslim world, but it's been pretty good for him as a sort of political move within Europe.  I think it's fair to say that he has strengthened himself within Europe as a result.  An interesting strategy on his part, especially given that he has said explicitly when he became pope that one of the dangers for the church is becoming irrelevant in Europe.  So it turns out that being sharply negative about Islam is a very effective technique for making yourself a player in the contemporary European environment.

The archbishop of Canterbury --

(Cross talk.)

MEAD:  -- could maybe take a lead --

FELDMAN:  -- yeah, it's interesting.  Yeah.

The archbishop of Canterbury, by contrast, gave this very tentative and scholarly lecture in a pretty academic environment and all hell broke loose.  You know?  I mean, they were calling for his resignation.  And you know, he's been handling some pretty sensitive matters over the last couple of years that -- the Anglican community is not without its difficulties, as we know -- but nobody, as far as I know, has made as open, as loud, as angry a set of calls for his resignation as came over this one speech.  So there's an important lesson there about the political climate in Europe right now.  Say anything that might be construed as in some way -- and the archbishop was very explicit -- he was trying to experimentally think of ways to reach out to the Muslim community in England to make it feel fully a part, and you can think that that's a mistake; you can think it's wrong -- but the spirit of the speech I think is pretty clear, and look at the consequences. 

MEAD:  Okay.  We have a question from one of our very patient webcast viewers that I'd like to interject here.  This is from Rene Lape (sp) at Friends Academy, who asked, "Regarding the relationship between Christian believers in the United States and the state, when it comes to issue such as the prohibition we have always had on men having more than one wife, a rule strictly related, it seems, to our identity as a Christian nation, how do you see the role of the state in defining the nature of marriage -- whether we're speaking of same-sex marriage or monogamous marriages?" 

So, I guess behind that is the notion that religious presuppositions inform the approach of the state to such basic matters of family life -- is this appropriate? 

MR.     :  (Off mike.)  (Laughter.)

AN-NA'IM:  I'll try briefly.  I think it is legitimate that every society's legal order -- codes of family law included -- would reflect its values, its culture, its religious beliefs included in that.  But the point is that certain -- as it is enacted as law by virtue of the will of the state and not by virtue religious authority.  So monogamous marriage is now part of the -- of course we are clear, all of us, that the origin or the underpinnings of this are Christian or particularly at least some interpretation of Christian dogma, but the point is that it is family law by virtue of the will of the state, not by virtue of divine command.

If that is the case, then it can be changed, too.  Not that we are going to have polygamous marriages, but the point is that we are dealing with the secular world.  My view is that in Islamic-majority countries, family law also should be secular law and should be seen as such; that you have a family court.  If the peoples are Muslims, their values will be reflected in that court, but there is no confusion that what the law is is the rule of the state and not the religious commands according to some interpretations of it. 

So, in that sense, we can have polygamous marriage or not have this divorce or that divorce -- all of it as secular law so we can change it.  But once we say, "This is Shari'a," then what can we do about it?

MEAD:  So in some countries one can have multiple wives; in this country we have multiple conceptions of marriage.  But these come from the democratic system of politics.  And underlying this and the prior question really is the matter of women's rights.  Right?  To what -- whether we're talking about polygamy or we're talking about Shari'a is introduced as a set of -- a subpart of the legal system as to family matters, the concern that I think many people rightfully will have is what will happen to the woman as an individual?  Will her rights be fully respected?  And to what extent will her freedom remain under such a system?  And given the role of the equality of women generally one might say in the development of the set of political systems and freedoms that we appreciate -- and it's been a central part, frankly -- women's rights have been a central part of the movement against slavery in this country and in changing our polity I think in ways that are on the whole rather wholesome.  We ought to be very, very careful about inviting what might become instruments of undermining this.  In fact, if there's anything we can do for the rest of the world, it will be to remind the rest of the world that in fact half the population -- many parts -- are excluded from full participation as citizens.  And, to put it mildly, that's a shame.

Yes, in the back?

QUESTIONER:  Yes.  Eric Gregory from Princeton University.  I'm an academic, so you'll forgive me if I worry this is getting to concrete.  I'm going to ask an abstract question, and it was provoked by Professor Hamburger.  I think as a matter of intellectual history, the concept of the secular and even human rights and even the separation of church and state have their soil in theological and religious sources.  And you said that we would be impoverished today without those religious motivations to regard people as equal, et cetera.  Do you want to go further and say they're actually necessary and required?  And I wasn't sure if you meant that as a philosophical argument, as a sociological argument or as a historical argument.  Can we tick away the God talk as long as we have the constitutional practices and democratic republican institutions, or is religion necessary for the defense of human rights?  It's the question about Locke, really. 

HAMBURGER:  Yeah.  It's a good question.  It's an -- I don't know the answer, and I fear that we're living through an interesting experiment.  We won't know probably for a little while -- I hope not to live long enough to find out.  But this is the division between America and Europe, right?  And if we think -- I don't think America has ever really been the same as Europe, but there are some commonalities.  And if one looks at the fate of Europe and the fate of the United States, we each have our problems, but their problems may turn out to be more fundamental precisely because they place such a burden on their mere humanity, and that is more than most societies have survived.

I don't want to suggest that nothing -- you know, it isn't possible.  That would be going too far, right?  We have no evidence for that.  But if one looks across history -- and of course, we only have a few thousand years of detailed evidence -- but if one looks across history, it's difficult to find a society which really gets very far, survives very long without some outside source to define and give stability to what we loosely call -- politely call "values," right, but which actually have to be a little bit more magnetic than that.  So I don't really know, but I'm -- although personally an optimist, professionally I'm a pessimist.  (Laughter.)

MEAD:  Yes?  Wait for the microphone.

QUESTIONER:  Paul de Vries with New York Divinity School.  I'm also on the board of the National Association of Evangelicals.  It puzzles us that we've had such a giant influence on foreign policy.  We look at many of our attempts to affect foreign policy in terms of restricting sex trade, nonviolent conflict resolution, creation care, environmental issues to be part of foreign policy and so forth.  And perhaps the -- (inaudible) -- list several more, perhaps the only success was the AIDS program that Bush pushed in Africa. 

But I guess the question -- we represent directly 20 million evangelicals, and indirectly probably equal number.  What can we do to wake up Washington to what we see as the eternal values?

MEAD:  How can evangelicals get more political influence?  (Laughter.)  Who wants to answer that?

FELDMAN:  I'll say something about at least the first part of the question -- how it's a surprise.  It's sometimes a surprise where one has influence and where one doesn't have influence. 

I think one of the key rules of American foreign policy is that if you pick an issue that nobody really feels strongly on the other side of, or at least where the opposition to you is not well organized and where no really fundamental national security interest is on the other side, that's where you're likely, in the first instance, to have a lot of impact.  Right?  I mean, this is a key point in understanding the role of the pro-Israel lobby -- both the Jewish pro-Israel lobby and the evangelical pro-Israel lobby.  Walter has written recently in an interesting review of Mearsheimer and Walt's book about this phenomenon.  It helps if you're advocating for something and no one is very organized in advocating on the other side of that issue.

In terms of how, though, one has an effect or a group of concerned citizens have a big effect where the national security interest doesn't obviously align with what they're pushing for or where there are other strong interests -- especially corporate interests -- on the other side, there the thing about our republican democracy is that the push really has to happen at the level of individual congresspeople.  I mean, that really is the way it works.  And although, for example, we speak of the tremendous corporate impact on our politics, which is enormous, that is accomplished via the mechanism of targeted support for particular representatives and senators.  That's our version of what we don't consider to be corruption.  I mean, at the margins it can become corrupt, but the American approach for better or for worse is to say money has a huge impact, so let's create a legal channel for money to have its influence so that it doesn't have its influence through non-legal channels. 

That may be a terrible mistake -- and again here, the European example is an interesting contrast where there's at least in many places in Europe a serious attempt to avoid the influence of money in politics, and yet there doesn't seem to be the kind of corruption that one sees in some other places.  That's an interesting contrast, and especially whether we could achieve that is I think the central question and the question of campaign finance reform. 

But that's really my view:  You do it by identifying particular people who are vulnerable and trying to get them elected or not elected. 

MEAD:  Okay.  We have time I think for one more question.

QUESTIONER:  I'm Sayed (sp).  Once again, I just wanted to make a brief observation in terms of open societies.  If both religion and the secular-minded groups are so much strongly in favor of open society, what is it that makes this a difficult thing to be realized?  Are we not looking at the moral aspect of it, or is there something else?  Thank you.

HAMBURGER:  Well, if I may, I feel that too often both secular attitudes and religion are used, right?  In the particularly in the democratic style government, religion is used to mobilize passions -- sometimes for good; sometimes for evil -- and so too, fears of religion.  And so it may be that the civilized conversation we can have here is not easily replicated out there simply because of the nature of politics, getting people mobilized, the way that Noah suggested.  So it may be something we just have to live with, which would be sad, but I don't have a solution. 

FELDMAN:  I think part of it has to do with the way that in politics no one is ever satisfied with just winning a particular debate.  If you can win a debate, you then want to move the goalposts to increase your chances of winning the next debate.  And I think that's where the real potential for conflict actually happens.  It's not just -- I mean, there's of course conflict if two different groups see an issue differently and they argue about it and they're each trying to lobby their congressman to get certain results and one wins and the other loses -- yeah, that's ordinary political fighting.  But rarely do they stop there. 

So we have constitutional politics, for example, where secularists -- legal secularists, as I sometimes call them, argue that religion should not be allowed into public discourse and then try to create constitutional rules that will make it harder -- will raise the barrier for religious folks to participate in that debate. 

And on the other side, you might have situations where people you might call "values evangelicals" -- I don't mean literally just evangelicals but people who evangelize for values -- also want to change the constitutional rules so that for example, state funds can be used to sustain their institutions, which will enable them to do a better job and win more future political debates.  And that's where I think you get the really heavy fighting.  And I don't think there's any solution to that.  I mean, this is an answer to your -- to try to be a direct answer to your question of why don't we all just get along.  (Laughter.)  It's because we're all trying to harden our advantage for the next time out. 

But that's just what constitutional politics always looks like, in my view.  And the test of a successful constitutional polity is that you keep that fighting within some bounds, and usually the bounds are nonviolence.  (Laughs.)  That's a pretty good bound to aim for.

AN-NA'IM:  So, just to close by saying that I can agree with Professor Feldman.  On this one I do agree with him -- that the point is that if you're -- I mean, when, we say open or closed, these are relative terms because it is relatively closed or relatively open, and also a question of how open or how closed -- in what ways?  And those are issues on which people are going to disagree constantly and permanently. 

And disagreement is good.  Conflict is good.  And in fact conflict is creative.  That's what makes us human.  It's part of our humanness is to be in disagreement because we tend to be distinctive as who we are, and that is not going to be who he is or who the next person is.  The only point is not to be violent about it. 

So the challenge is how to create normative institutions and mechanisms whereby we can negotiate our difference without resorting to violence.  Whenever we have this, there is no end to how open and variety of ways in which you can be open. 

MEAD:  Well, we never did get back to Professor Wright, but I think you'll -- Pastor Wright, but I think you'll agree with me this was still a very successful session.  (Laughter.)  We have lunch now, and we reconvene -- (applause) -- thank you.  

AN-NA'IM:  Thank you.

####

®FC¯END

®FL¯

.STX

      (C) COPYRIGHT 2008, FEDERAL NEWS SERVICE, INC., 1000 VERMONT AVE.

NW; 5TH FLOOR; WASHINGTON, DC - 20005, USA.  ALL RIGHTS RESERVED.  ANY REPRODUCTION, REDISTRIBUTION OR RETRANSMISSION IS EXPRESSLY PROHIBITED.

      UNAUTHORIZED REPRODUCTION, REDISTRIBUTION OR RETRANSMISSION CONSTITUTES A MISAPPROPRIATION UNDER APPLICABLE UNFAIR COMPETITION LAW, AND FEDERAL NEWS SERVICE, INC. RESERVES THE RIGHT TO PURSUE ALL REMEDIES AVAILABLE TO IT IN RESPECT TO SUCH MISAPPROPRIATION.

      FEDERAL NEWS SERVICE, INC. IS A PRIVATE FIRM AND IS NOT AFFILIATED WITH THE FEDERAL GOVERNMENT.  NO COPYRIGHT IS CLAIMED AS TO ANY PART OF THE ORIGINAL WORK PREPARED BY A UNITED STATES GOVERNMENT OFFICER OR EMPLOYEE AS PART OF THAT PERSON'S OFFICIAL DUTIES.

      FOR INFORMATION ON SUBSCRIBING TO FNS, PLEASE CALL CARINA NYBERG AT 202-347-1400.

      THIS IS A RUSH TRANSCRIPT.

-------------------------