¹ See, e.g., Joseph Cardinal Ratzinger & Jurgen Habermas, Dialectics of Secularization: On Reason and Religion 67–72 (Florian Schuller ed., Brian McNeil trans., 2005); J.H.H. Weiler, The Constitution of Europe: “Do the New Clothes Have an Emperor?” and Other Essays on European Integration 10–13 (1999).Google Scholar

² Edwin S. Gaustad, Faith of Our Fathers: Religion and the New Nation 47 (1987) (quoting Thomas Jefferson, Letter from Jefferson to Charles Clay, 29 January 1815).Google Scholar

³ Perhaps the most important rationale for this largely unprecedented approach to government was that such a separation would ensure personal liberty for individuals and, additionally, strengthen legitimacy and viability for both minority and majority religious faiths, as well as the state. Phyllis Moen et al, A Nation Divided: Diversity, Inequality, and Community in American Society 235 (1999).Google Scholar

⁴ European Consortium for State and Church Research, State and Church in the European Union passim (Gerhard Robbers ed., 1996).Google Scholar

⁵ For example, Belgium officially recognizes six denominations: Catholicism, Protestantism, Judaism, Anglicanism, Islam, and the Greek and Russian Orthodox Church. Id., 18–19.Google Scholar

⁶ Id., 18–21.Google Scholar

⁷ For example, French constitutional sources generally establish neutrality of the state with regard to religion, and impose a positive obligation on the government to support freedom of public worship. Id., 123, passim. Google Scholar

⁸ Although “Europe” and the various embodiments of the supranational European government – ranging from the European Economic Community to the contemporary European Union – are distinct from one another, this article is concerned with the embodiments and use of religion within the European Union. Accordingly, despite the fact that analysis of the status of religion within non-EU European countries (such as Turkey) is instructive in a number of related areas, references to “Europe” within this article refer only to those nations subject to European supranational control at the time in question.Google Scholar

⁹ Treaty Establishing the European Economic Community, 25 March 1957, 298 U.N.T.S. 11, 1973 Gr. Brit. T.S. No. I (Cmd. 5179-II) [hereinafter EEC Treaty]; Treaty Establishing the European Coal and Steel Community, 18 April 1951, 261 U.N.T.S. 140 [hereinafter ECSC Treaty] (expired on 23 July 2002).Google Scholar

¹⁰ See, e.g., Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 Dec. 2007, 2007 O.J. (C 306) passim [hereinafter “Lisbon Treaty”]; Treaty on European Union, 29 July 2002, 2002 O.J. (C 191) passim [hereinafter “TEU”]; Jan-Werner Müller, Constitutional Patriotism 94–95 (2007).Google Scholar

¹¹ In Case 41/74, Van Duyn v. Home Office, 1974 ECR 1337, the European Court of Justice held that although the European Community is able to regulate when there is a conflict between European public order and the public order of Member States, the establishment of policy for matters of freedom of religion will nonetheless be left to the Member States. Case 41/74, Van Duyn v. Home Office, 1974 ECR 1337; José M. González del Valle, The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief in Spain, 19 Emory International Law Review 1033, 1041 (2005). Thus, a British law denying immigration for a Church of Scientology worker was left intact despite its obvious conflict with the Community right to freedom of movement for workers. Van Duyn, 1974 ECR at 1337; González del Valle, supra, 1041. Even though the responsibility for religious policy falls on the member countries, the EU adopted a general position on expressing religious beliefs in Case 130/75, Vivien Prais v. Council, 1976 ECR 1589; González del Valle, supra, 1041; Alenka Kuhelj, Religious Freedom in European Democracies, 20 Tulane European & Civil Law Forum 13 (2005). That case held that religious freedom includes the protection of private religious beliefs from public interference. Prais, 1974 ECR 1589; Kuhelj, supra, 13. The Court has similarly declined to intervene in the recent controversy regarding France's banning of religious symbols, including Muslim headscarves, preferring instead to defer to the national conception of religion.Google Scholar

¹² It has been theorized that the best approach to continued assimilation is through the establishment of a European constitution. Upon the defeat of the constitution in 2005 by failure to secure Member State ratification, however, most scholars agree that the European constitutional project is dead. See Müller, supra, note 10, 94–95, 96–97.Google Scholar

¹³ Eurobarometer, Social Values, Science, and Technology 9 (2005).Google Scholar

¹⁴ E.g., EEC Treaty, 11; ECSC Treaty, 140; see, supra, note 9.Google Scholar

¹⁵ Following the American Revolution, and given the collective memory of British religious persecution, there was extensive debate on the extent to which the nascent government should be able to regulate, support, or otherwise involve itself in the affairs of the religious institutions. Ultimately, a largely strict separationist viewpoint, advocated initially by James Madison and, later, by Thomas Jefferson and others, was adopted. These thinkers had the foresight to determine that stopping direct government action in the area of religion protects religion by preventing a domination of theological thought by the majority faith. This separationist approach ensures the liberty of individuals and religious institutions alike by protecting them from the coercive force of government interference. The overall legitimacy of the government itself is also reinforced because such separation ensures that it remains neutral as between faith groups. Indeed, French philosopher Alexis de Tocqueville observed that this constitutionally mandated division between church and state strengthened religion and smoothed the relationship between politics and religion. See, Moen et al, supra, note 3, 235; John Rawls, The Law of Peoples 167–68 (1999).Google Scholar

¹⁶ See Jurgen Habermas, Three Normative Models of Democracy, in The Inclusion of the Other: Studies in Political Theory, 240, 249 (Ciaran Cronin & Pablo De Greiff eds., Ciaran Cronin trans., 1998) [hereinafter Habermas, Democracy].Google Scholar

¹⁷ For the purposes of this article, I take the state to be the relevant unit of analysis due to the largely Member State centric structure of the European Union.Google Scholar

¹⁸ Ernest Renan, What is a Nation?, in Nation and Narration, 8, 18 (Homi K. Bhabha ed., Martin Thom trans., 1990).Google Scholar

¹⁹ Id. Google Scholar

²⁰ Id. Google Scholar

²¹ Id. Google Scholar

²² See id. Google Scholar

²³ Timothy Brennan, The National Longing for Form, in Nation and Narration, 44, 51 (Homi K. Bhabha ed., Martin Thom trans., 1990) (quoting Regis Debray, Marxism and the National Question, 105 New Left Review 1, 26 (1977)).Google Scholar

²⁴ Id. Google Scholar

²⁵ For example, Catholicism and Orthodox Judaism, among others, hold the fundamental belief that abortion cannot be allowed because it is the unjustifiable taking of life. On the other hand, a secularist might believe that the acceptability of abortion cannot be prescribed by another; rather it is a decision that is based on the fundamental right of personal liberty. Although each viewpoint is largely variant from the other, when reduced to their respective essential elements both perspectives place a fundamental value of the sacredness of human life. It is the explication of such a moral that varies between European comprehensive doctrines, not the concept of the basic moral itself.Google Scholar

²⁶ See Brennan, supra, note 23.Google Scholar

²⁷ See Brennan, supra, note 23; Renan, supra, note 18; see also Habermas, Democracy, supra, note 16.Google Scholar

²⁸ The Preambles to the Treaties of Amsterdam and Nice, as amended by the agreements reached in Lisbon, specify that the EU draws “…inspiration from the cultural, religious, and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law. Lisbon Treaty at 10; Srdjan Cvijic & Lorenzo Zucca, Does the European Constitution Need Christian Values?, 24 Oxford Journal Of Legal Studies (2004).Google Scholar

²⁹ See Cvijic & Zucca, id., 739–40.Google Scholar

³⁰ The least common denominator conception is broadly analogous to Rawls’ definition of modus vivendi. Under this conception, a formative document such as a treaty is merely an agreement to maintain civil peace. Based on this implicit accord, issues of religion are not discussed within the political realm to avoid arousing sectarian hostility. Such an approach serves to quiet divisiveness and encourage a superficial social stability among adherents to different religious beliefs. It does not, however, resolve the underlying conflicts between different religious, cultural, social, national, or ethnic groups. See, Rawls, supra, note 15, 149–50.Google Scholar

³¹ See, e.g., Weiler, supra, note 1, 105–06, 108–12; Treaty Establishing a Constitution for Europe, 16 December 2004, 2004 O.J. (C 310) passim [hereinafter European Constitution] (received approval from the European institutions in 2004, but has not entered into effect due to failed ratifications in France and the Netherlands and abandonment of the ratification effort in the Czech Republic, Denmark, Ireland, Poland, Portugal, Sweden, and the United Kingdom).Google Scholar

³² See Lisbon Treaty, supra, note 10, passim; TEU passim. Google Scholar

³³ See Müller, supra note 10, 94.Google Scholar

³⁴ See id. Google Scholar

³⁵ See, Cvijic & Zucca, supra, note 28, 740–42.Google Scholar

³⁶ Id., 741.Google Scholar

³⁷ Id., 741–42 (paraphrasing Weiler's statement in Un'Europa Cristiana).Google Scholar

³⁸ The communitarian position is premised on the idea that the document being created is a constitution. This is not the case here, but the distinction is de minimis for reasons discussed in Part IV below. Id., 739, 742.Google Scholar

³⁹ Id., 740–43.Google Scholar

⁴⁰ But see id., 740–42, 743 (paraphrasing Weiler's statement in Un'Europa Cristiana).Google Scholar

⁴¹ Id., 739, 744.Google Scholar

⁴² Although a case addressing abortion – or other similar issues – initially seems likely to be heard within the European Court of Human Rights in Strasbourg, the ECJ has in fact already applied European Community law to the issue of a woman's right to abortion services. Society for the Protection of Unborn Children (SPUC) v. Grogan, 3 C.M.L.R. 849 (1991); Anne M. Hilbert, The Irish Abortion Debate: Substantive Rights and Affecting Commerce Jurisprudential Models, 26 Vanderbilt Journal Of Transnational Law 1117, 1143–47 (1994). In Grogan, the ECJ held abortion to be a protected economic right by defining it as a service under Article 60 of the EEC Treaty, thus bringing such cases within the Court's jurisdiction. SPUC v. Grogan, 3 C.M.L.R. at 849; see Hilbert, supra, at 1143–47.Google Scholar

⁴³ Cvijic & Zucca, supra, note 28, 739, 744.Google Scholar

⁴⁴ See, generally, id. Google Scholar

⁴⁵ See, generally, Rawls, supra, note 15; Weiler, supra, note 1.Google Scholar

⁴⁶ See Habermas, Democracy, supra, note 16, 249.Google Scholar

⁴⁷ Universal Declaration of Human Rights, G.A. Res. 217A, passim, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (12 December 1948) [hereinafter Declaration of Rights].Google Scholar

⁴⁸ Id. Google Scholar

⁴⁹ The ECHR set out, for the first time, a solely European supranational system for the protection of human rights and, to that end, simultaneously created the European Court of Human Rights in Strasbourg. Eur. Consult. Ass., Convention for the Protection of Human Rights and Fundamental Freedoms 213 U.N.T.S. 221, E.T.S. 5 (1950).Google Scholar

⁵⁰ The ECHR was created by the Council of Europe, which, as a non-Community institution, could not bind the ECSC. Id. Google Scholar

⁵¹ EEC Treaty at 11, see, supra, note 9.Google Scholar

⁵² Case 29/69, 1969 ECR 419.Google Scholar

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⁵⁴ Id. Google Scholar

⁵⁵ Stauder, 1969 ECR 419; see, e.g., Case 26/62, van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 ECR 1; Case 6/64, Costa v. Ente Nazionale per l'Energia Elettrica (ENEL), 1964 ECR I-585; Müller, supra, note 10, 94–95.Google Scholar

⁵⁶ See, e.g., Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [Solange I], 1970 ECR 1125; Case 4/73, Nold v. Commission, 1974 ECR 491l; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 22 October 22 1986, 73 Entscheidungen des Bundesverfassungsgericht [BVerfGE], 339 (F.R.G.); Case 44/79, Hauer v. Land Rheinland-Pfalz, 1979 ECR 3727.Google Scholar

⁵⁷ See, e.g., TEU passim; Joint Declaration on Fundamental Rights, 27 April 1997, 1997 O.J. (C 103/1) passim [hereinafter “Joint Declaration”].Google Scholar

⁵⁸ Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 2 October 1997, 1997 O.J. (C 340) 1, 58–69, 69–73.Google Scholar

⁵⁹ Charter of Fundamental Rights of the European Union, 2000 O.J. (C 364) 1 (approved in the Treaty of Lisbon but still requires ratification by the Member States to be effective) [hereinafter EU Charter]; Lisbon Treaty passim. Google Scholar

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⁶¹ See Jurgen Habermas, Does Europe Need a Constitution? Response to Dieter Grimm, in The Inclusion of the Other: Studies in Political Theory, 157, 159 (Ciaran Cronin & Pablo De Greiff eds., Ciaran Cronin trans., 1998) (hereinafter Habermas, Constitution); Jurgen Habermas, The European Nation-State: On the Past and Future of Sovereignty and Citizenship, in The Inclusion of the Other: Studies in Political Theory 112 (Ciaran Cronin & Pablo De Greiff eds., Ciaran Cronin trans., 1998)] (hereinafter Habermas, Sovereignty and Citizenship). Google Scholar

⁶² See Habermas, Constitution, id., 159; Habermas, Sovereignty and Citizenship, id., 112.Google Scholar

⁶³ Although the European constitutional project died with 2005's failed ratification effort, the respective dialectical approaches proposed by Habermas and Rawls nonetheless retain significant utility as guidance for the current endeavor. More specifically, many of the same aims sought by a European constitution – including increased solidarity, legitimacy, and democracy, as well as supremacy for the European hierarchy within a number of areas such as human rights – are similarly being pursued through treaty-based increases in integration. See Müller, supra, note 10, at 96–97.Google Scholar

⁶⁴ See, Rawls, supra, note 15, 135–36, 143, 144–46; Habermas, Constitution, supra, note 61, 159–61, passim. Google Scholar

⁶⁵ Rawls, supra, note 15, 132–33, 136–37, 149–52, 153–54.Google Scholar

⁶⁶ F.H. van Eemeren et al., Anyone Who Has a View: Theoretical Contributions to the Study of Argumentation 92 (2003); R.C. Pinto, Argument, Inference and Dialectic: Collected Papers on Informal Logic 138–39 (2001).Google Scholar

⁶⁷ A.J. Ayer & Jane O'Grady, A Dictionary of Philosophical Quotations 484 (1992); John M.E. McTaggart, A Commentary on Hegel's Logic 11 (1964).Google Scholar

⁶⁸ See, Rawls, supra, note 15, 132–33, 136–37, 149–52, 153–54.Google Scholar

⁶⁹ Jurgen Habermas, On the Relation Between Nation, the Rule of Law, and Democracy, in The Inclusion of the Other: Studies in Political Theory, 137–39 (Ciaran Cronin & Pablo De Greiff eds., Ciaran Cronin trans., 1998) [hereinafter Habermas, Nation].Google Scholar

⁷⁰ State and Church in the European Union, supra, note 4, passim. Google Scholar

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⁷⁴ See Habermas, Nation, supra, note 69, 132–33, 137–39; Habermas, Constitution, supra, note 61, 159–61.Google Scholar

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⁷⁷ See, e.g., EEC Treaty at 11; ECSC Treaty at 140, supra, note 9.Google Scholar

⁷⁸ In Van Duyn, the European Court of Justice held that although the European Community is able to regulate when there is a conflict between European public order and the public order of Member States, the establishment of policy for matters of freedom of religion will nonetheless be left to the Member States. Van Duyn, 1974 ECR at 1337; del Valle, supra, note 11, at 1041. The Court has similarly declined to intervene in the recent controversy regarding France's banning of religious symbols, including Muslim headscarves, preferring instead to defer to the national conception of religion.Google Scholar

⁷⁹ See, e.g., Solange I, 1125; Nold, 1974 ECR 491; BVerfG at 339; Müller, supra, note 10, 94.Google Scholar

⁸⁰ See, e.g., Solange I, 1125; Nold, 1974 ECR 491; BVerfG at 339. Müller, supra, note 10, 95.Google Scholar

⁸¹ See, e.g., Solange I, 1125; Nold, 1974 ECR 491; BVerfG at 339.Google Scholar

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⁸⁶ Habermas, Constitution, supra, note 61, 159–61; Habermas, Nation, supra, note 69, at 137–39, 153; see generally Habermas, Democracy, supra, note 16.Google Scholar

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⁸⁸ Habermas, Democracy, supra, note 16, 240, 249.Google Scholar

⁸⁹ Habermas, Constitution, supra, note 61, 159–61; Habermas, Nation, supra, note 69, 137–39.Google Scholar

⁹⁰ Although here constitutional formation is not being analyzed, formulating a treaty-based concept of human rights will have the same positive solidarity-building and integrative effects. Habermas, Constitution, supra note 61, at 159–61; Habermas, Nation, supra, note 69, at 137–39, 153.Google Scholar

⁹¹ Habermas, Constitution, supra note 61, 159–61; Habermas, Nation, supra note 69, 137–39, 153.Google Scholar

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⁹³ Id., 132–33 (paraphrasing Ernst-Wolfgang Bockenforde, Die Nation (1995)).Google Scholar

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¹⁰¹ Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 222–23, 238 (William Rehg trans., 1996).Google Scholar

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¹⁰⁵ Habermas, Nation, supra, note 69, 147–48; see Habermas, Democracy, supra note 16, at 240, 249; Müller, supra, note 10, 98.Google Scholar

¹⁰⁶ See Habermas, Constitution, supra, note 61, 159–61.Google Scholar

¹⁰⁷ See Habermas, Constitution, supra, note 61, 159–61; Habermas, Nation, supra, note 69, 132–33 (paraphrasing Bockenforde, Die Nation).Google Scholar

¹⁰⁸ Brennan, supra, note 23, 44, 51; Renan, supra, note 18, 18.Google Scholar

¹⁰⁹ See Rawls, supra, note 15, 132–33, 136–37, 149–52, 167–68; Habermas, Constitution, supra, note 61, 159–61.Google Scholar

¹¹⁰ See Rawls, supra, note 15, 134–37, 149–52, 154.Google Scholar

¹¹¹ Habermas and Rawls have long argued that there are substantial differences between their theoretical approaches. Nonetheless, the novel modified public reason framework combines the models in a complementary manner that preserves the respective procedural and substantive benefits contained within each approach while avoiding the other sources of perceived incompatibility. See generally Jurgen Habermas, Reconciliation Through the Public Use of Reason: Remarks on John Rawls's Political Liberalism, 92 Journal of Philosophy 109 (1995); John Rawls, Political Liberalism: Reply To Habermas, 92 Journal of Philosophy 132 (1995).Google Scholar

¹¹² See Rawls, supra, note 15, 149–52, 153–54.Google Scholar

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¹¹⁵ Id., 133–34.Google Scholar

¹¹⁶ See, Rawls, supra, note 15, 133; John Rawls, Political Liberalism 216–17 (1993).Google Scholar

¹¹⁷ This circularity problem is discussed below in Part V.Google Scholar

¹¹⁸ See, Rawls, supra, note 15, 133–35.Google Scholar

¹¹⁹ See, Rawls, supra, note 15, 133; Rawls, supra note 116, 225–26, 227–29.Google Scholar

¹²⁰ See, Rawls, supra, note 15, 133; Rawls, supra, note 116, 224–26, 227–29.Google Scholar

¹²¹ See, Rawls, supra, note 15, 133; Rawls, supra, note 116, 227–29.Google Scholar

¹²² See, Rawls, supra, note 116, 227–29.Google Scholar

¹²³ See, Rawls, supra, note 15, 133–34, 149–52.Google Scholar

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¹²⁵ See id., 133, 149–52; see generally Müller, supra, note 10.Google Scholar

¹²⁶ Rawls, supra, note 15, 133–34; Müller, supra, note 10, 96. For a general application of Rawls’ theoretical model to the EU, see Pavlos Eleftheriadis, The Idea of a European Constitution, 27 Oxford Journal of Legal Studies 1 (2007); Thomas Nagel, The Problem of Global Justice, 33 Philosophy & Public Affairs 113 (2005); Pavlos Eleftheriadis, The European Constitution and Cosmopolitan Ideals, 7 Columbia Journal of European Law 21 (2001); Ian Ward, International Order, Political Community, and the Search for a European Public Philosophy, 22 Fordham International Law Journal 930 (1999).Google Scholar

¹²⁷ Rawls, supra, note 15, 136–37; Rawls, supra, note 116, 224–26.Google Scholar

¹²⁸ Rawls, supra, note 15, 136–37.Google Scholar

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¹³⁰ See Habermas, Constitution, supra note 61, 159–61; Habermas, Nation, supra, note 69, 137–39.Google Scholar

¹³¹ See Habermas, Constitution, supra, note 61, 159–61; Habermas, Nation, supra, note 69, 137–39, 53.Google Scholar

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¹³³ Id.; Rawls, supra, note 116, 48–54, 224–26.Google Scholar

¹³⁴ Rawls, supra, note 15, 136–37; Rawls, supra, note 116, 48–49, 224–26.Google Scholar

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¹³⁶ Id., 54.Google Scholar

¹³⁷ Id., 50.Google Scholar

¹³⁸ See, Rawls, supra, note 15, at 133–34, 136–37.Google Scholar

¹³⁹ Id., 54.Google Scholar

¹⁴⁰ Id., 137. For Rawls, public reason is an ideal and not a strict precondition to the exercise of democratic rights. Within modified public reason, however, such a requirement is necessary in order to realize the full democraticizing elements. See, infra. Google Scholar

¹⁴¹ Id., 137–38.Google Scholar

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¹⁴⁴ See id., 133–34, 137–38; see generally Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1994).Google Scholar

¹⁴⁵ Rawls, supra, note 15, 132–33, 136–37, 149–52, 169. Rawls’ initial conception of public reason provided that a citizen could only base his decision on a comprehensive doctrine when he believes that such reliance would strengthen the ideal of public reason. Rawls, supra, note 116, 247, 251; Charles Larmore, Public Reason, in The Cambridge Companion to Rawls, 385–86 (Samuel Freeman ed., 2003). Subsequently, however, Rawls revised this viewpoint to conclude that citizens may call upon their comprehensive doctrines at any time, so long as the principles of reciprocity and reasonableness are met. Larmore, supra, 385–86.Google Scholar

¹⁴⁶ Habermas, Constitution, supra, note 61, 159–61; Habermas, Nation, supra, note 69, 137–39.Google Scholar

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