** The story is told in many sources, including Armstrong, Karen, A History of God: The 4000-Year Quest of Judaism, Christianity and Islam 72 (Alfred A. Knopf, 1993)Google Scholar; Telushkin, Joseph, Jewish Literacy: The Most Important Things to Know about the Jewish Religion, its People, and its History 62–63 (William Morrow & Co, 1991)Google Scholar. My references are primarily to the liberal Jewish tradition in which I live. I do not take this tradition as embracing Hillel's exhortation exclusively, however. Just to the extent that liberal Christian traditions take seriously Matt 22:35-40, “You shall love your neighbor as yourself,” they share this tradition.

1. “Love your fellow as yourself: I am the LORD.” (Lev 19:18). Unless otherwise stated, citations to Scripture are from Tanakh: A New Translation of Holy Scriptures (Jewish Pub Soc'y, 1985)Google Scholar.

2. I should make explicit the point that I am advancing the insights of Hillel as grounds for an ideal of social cooperation in a liberal democracy. Nevertheless, I have given some thought to the logical reaction that hurtfulness describes, in conclusory form, a quality measured primarily by differences of perspective: What is hurtful to one may be seen as beneficial (as “tough love” or God's “True Path”) to others. For example, many evangelical Baptists and the Mormon Church firmly believe that, despite my protests to the contrary, they would be helping me see the one true path by pressing their beliefs on me. What I, therefore, might describe as an imperious, unwanted, and impolite discourse of conversion, their members view as something like the Kingdom of God. Bloom, Harold, The American Religion: The Emergence of the Post-Christian Nation 94–95 (Simon & Schuster, 1992)Google Scholar.

Although the point requires much further study, my tentative conclusion is that this difference of perspective should not present a genuine problem. While I do not subscribe to the idea of a Heckler's Veto, I do support the idea that my request to abstain from evangelizing should alone suffice to end any imposition. Any citizen in a democracy must have the right to say “do not proselytize me,” at least in private precincts and in those protected prima facie as private. Thus the prospective convert must have a veto precisely because pluralism reigns. Fair terms of reciprocal, social cooperation seem to demand at least this much.

3. Gallup, George and Castelli, Jim, The People's Religion: American Faith in the 90's (Macmillan, 1989)Google Scholar (concluding that 95% of the population professes religious belief); accord Kosmin, Barry A. and Lachman, Seymour P., One Nation Under God 15–17 (Crown Pub Group, 1993)Google Scholar (finding that 92% self-describes as having a religion); The Roper Center for Public Opinion Research, The Public Perspective July, 1993/Aug, 1993 (73% self-described as “extremely” to “somewhat” religious).

4. This idea is unremarkable, having both a long pedigree and continuing vitality. See, for example, Galston, William A., Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State ch 12 (Cambridge U Press, 1991)CrossRefGoogle Scholar. In one of the many essays he produced between A Theory of Justice (Harv U Press, 1971)Google Scholar [hereinafter “Tf”] and Political Liberalism (Colum U Press, 1993)Google Scholar [hereinafter “Political Liberalism”], John Rawls followed the Lockean prescription by presupposing the importance of religion in a liberal society. “Justice as fairness assumes,” he wrote,

Rawls, John, The Idea of an Overlapping Consensus, 7 Oxford J Leg Studies 1, 10 n.17 (1987)CrossRefGoogle Scholar. See also Rawls, TJ at 214-15; and Rawls, , The Idea of Public Reason Revisited, 64 U Chi L Rev 765, 780–83 (1997)CrossRefGoogle Scholar (discussing the ways in which citizens wedded to a reasonable comprehensive religious doctrine might genuinely embrace political liberalism) [hereinafter “Public Reason”].

5. A note about word choice and gender: There is a rabbinic tradition in Judaism that views the Adam in the two creation moments in Genesis as androgynous: R. Jeremiah ben Eleazer said: “He created [Adam] hermaphrodite, as is said, ‘Male and female created He them … and called their name Adam.’ (Gen 5:2)”. Bereshit Rabbah 8:1 (quoted in Ariel, David S., What Do Jews Believe?: The Spiritual Foundations of Judaism 52–3 (Schocken Books, 1995))Google Scholar. This tradition has a contemporary counterpart in feminist theology. See, for example, Raschke, Carl A. and Raschke, Susan Doughty, The Engendering God: Male and Female Faces of God especially ch 1 (Westminster John Knox Press, 1995)Google Scholar; Trible, Phyllis, God and the Rhetoric of Sexuality 16–21 (Fortress Press, 1978)Google Scholar. I subscribe to this tradition insofar as it reflects the foundational equality of Gen 1. See Blumoff, Theodore Y., Genesis, Gender and Community, 9 S Calif L Rev & Women's Studies 5 (1999)Google Scholar. With sincere apologies, however, I have decided to seek simplicity and avoid wordiness by referring to God in those few instances when a personal pronoun seems essential with the conventional reference to “He” or “Him.”

6. See Williams, Bernard, Ethics and the Limits of Philosophy 32 (Harv U Press, 1985)Google Scholar (stating that although this kind of religion “could not be true,” it might explain why an individual has reason to live an ethical life). As will be clear later, to the extent that Williams goes beyond this understanding to the conclusion that “the development of ethical consciousness means the collapse of religion,” I think he overstates the issue by adopting the skeptic's position.

7. Wolpe, David J., The Healer of Shattered Hearts: A Jewish View of God 7 (Penguin Books, 1990)Google Scholar.

8. See, for example, Carter, Steven L., The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (Basic Books, 1993)Google Scholar; Neuhaus, Richard John, The Naked Public Square (Eerdmans, William B., 2d ed 1986)Google Scholar; Perry, Michael J., Love and Power: The Role of Religion and Morality in American Politics (Oxford, 1991)Google Scholar; Durham, W. Cole and Dushku, Alexander, Traditionalism, Secularism, and the Transformative Dimension of Religious Institutions, 1993 BYU L Rev 421Google Scholar; Gedicks, Frederick Mark, Public Life and Hostility to Religion, 78 Va L Rev 671 (1992)CrossRefGoogle Scholar. For a nearly hysterical, on-going view of this supposed phenomenon, see Symposium: The End of Democracy, in First Things 18 (Nov 1996).

9. Blumoff, Theodore Y., The New Religionists Newest Social Gospel: The Rhetoric and Reality of Religion's ‘Marginalization’ in American Life, 51 U Miami L Rev 1 (1996)Google Scholar.

10. I often use the term Shoah in place of Holocaust in part for the sake of variety, but more importantly because the Hebrew term appears less problematic than the English. For this understanding I thank Rabbi Steven L. Jacobs. See Steven L. Jacobs, Fifty Years of Living with the Shoah: Reflection Both Personal and Professional 1 n.l (from a speech delivered April 24, 1998; ms in author's possession).

11. At least for now, I do not embrace a comprehensive theory of liberalism; I confess, however, that protestations to the contrary notwithstanding—see, for example, Gardbaum, Stephen, Liberalism, Autonomy, and Moral Conflict, 48 Stan L Rev 385 (1996)CrossRefGoogle Scholar—I'm not sure what, if anything, turns on the distinction between a political and comprehensive theory other than justificatory rationales. See Larmore, Charles, Political Liberalism, 18 Pol Theory 339, 346 (1990)CrossRefGoogle Scholar.

12. Josipovici, Gabriel, The Book of God: A Response to the Bible xii (Yale U Press, 1988)Google Scholar.

13. An enlarged version of this story first appeared several years ago in this Journal in Blumoff, Theodore Y., The Holocaust and Public Discourse, 11 J Law & Relig 591, 596–99Google Scholar (1994-95) (reprinted in DeCoste, F.D. & Schwartz, Bernard, eds, The Holocaust's Ghosts: Writings on Art, Politics, Law and Education (U Alberta Press, 2000))Google Scholar.

14. On the deliberate viciousness of the killing see Goldhagen, Daniel Joshua, Hitler's Willing Executioners: Ordinary Germans and the Holocaust (Alfred A. Knopf, 1996)Google Scholar.

15. On the multiple ways in which at least some minority religions face losses as religion becomes increasingly “public-ized,” see Sherry, Suzanna, Religion and the Public Square: Making Democracy Safe for Religious Minorities, 47 DePaul L Rev 499 (1998)Google Scholar.

16. See note 8.

17. See, for example, Greeley, Andrew, The Persistence of Religion 24 (Cross Currents Spring 1995)Google Scholar; Iannacce, Laurence, The Consequences of Religious Market Structure: Adam Smith and the Economics of Religion, 3 Rationality & Soc'y 156 (1992)CrossRefGoogle Scholar; Warner, H. Steven, Work in Progress Toward a New Paradigm for the Sociological Study of Religion in the United States, 98 Am J Soc'y 1044 (1993)CrossRefGoogle Scholar. See Blumoff, (cited in note 9); French, Rebecca R., New Direction: Lamas, Oracles, Channels, and the Law: Reconsidering Religion and Social Theory, 10 Yale J L & Humanities 505, 524–30 (1998)Google Scholar (summarizing the variety of positions within the legal academy on this issue).

But even beyond the sociological dog that refuses to bark, our common, everyday experience undermines the “secularization thesis.” Religion, religious individuals, and institutional religious bodies (including their lobbyists) involve themselves in every major public policy movement in American history going back to the Protestant churches' role in the coming of the American Revolution, the ante-bellum anti-slavery movement, and certainly the post-World War II civil rights movement, but also including Father Coughlin's nightmarish radio pastoral politics and Patrick Buchanan's 1992 Republican Crusade. On the extent to which institutional religious groups are currently involved in public policy, see Beck, Roy Howard, Prophets & Politics: Handbook on Washington Office of U.S. Churches 1 (Instit on Democracy & Relig, 1994)Google Scholar; Hertzke, Allen D., The Role of Religious Lobbies, in Dunn, Charles W., ed, Religion in American Politics 123 (U Tenn Press, 1989)Google Scholar; Weber, Paul J. and Stanley, Terry L., The Power and Performance of Religious Interest Groups, Q Rev (Methodist) 4, 28–43 (Summer 1984)Google Scholar.

18. By private, I mean to describe activities over which individuals maintain primary control and which are, therefore, at least prima facie inaccessible to government regulators. See Gavison, Ruth, Feminism and the Public/Private Distinction, 45 Stan L Rev 1, 7–9 (1992)CrossRefGoogle Scholar.

19. Camus, Albert, The Unbeliever in Pilikan, Jaroslav, ed, The World Treasury of Modern Religious Thought 32 (Little, Brown & Co, 1990)Google Scholar (from a talk delivered to the Dominican monks of Latour-Mauborg in 1948).

20. A sampling of the most disrespectful public religious rhetoric includes statements by Reverend Pat Robertson: “Just like what Nazi Germany did to the Jews, so liberal America is now doing to evangelical Christians;” Reverend Jerry Falwell: “Modern U.S. Supreme Courts have raped the Constitution and raped the Christian faith and raped the churches;” Randall Terry: “I want to just let a wave of intolerance wash over you. I want to just let a wave of hatred wash over you. Yes, hate is good;” William Dannemeyer: “The homosexual blitzkrieg has been better planned and executed than Hitler's”; Donald Wildmon: “If the people who control the networks in Hollywood were 59 percent Christian and if they were only 1 percent as anti-Semitic as the networks currendy are anti-Christian, there would be a massive public outcry.” All these expressions were quoted in Opinion, Demagoguery in America, The New Republic 7 (Aug 1, 1994). Doubtless many of these statements are tactical, designed to attract attention. Yet these devices, if that's what they are, reflect a destructive intolerance. Moreover, to the extent that they believe the firebrand rhetoric they purvey, they stand outside civil discourse. Communication—the willingness to seek common ground—does not exist.

21. Rorty, Richard, The Priority of Democracy to Philosophy, in Outka, Gene and Reeder, John P. Jr., eds, Prospect for a Common Morality 254, 265 (Princeton U Press, 1993)Google Scholar. See Mary Ann Glendon, (Book Review) Civil Service I, in 39 New Republic (April 1, 1996) (“A regime of ordered liberty demands certain character traits—self restraint, respect for others, public spiritedness and sturdy independence of mind.”) (reviewing Sandel, Michael J., Democracy's Discontent: American in Search of a Public Philosophy (Harv U Press, 1996)Google Scholar); Schlesinger, Arthur Jr., The Opening of the American Mind, in Anderson, Walter Truett, ed, The Truth About the Truth: De-Confusing and Re-Constructing the Postmodern World 224, 229 (Tarcher/Putnam Books, 1995)Google Scholar (“Religion is so frequently a source of confusion in political life and so frequently dangerous to democracy, precisely because it introduces absolutes into the realm of relative values.”) (quoting Reinhold Neibuhr)). Thus any defense of liberalism from the standpoint of value, and especially one of the sort I make in the text, must also rest on psychological considerations. See Putnam, Hilary, The Many Faces of Realism 61 (Open Court, 1987)Google Scholar.

22. In Regulating Religious and Cultural Conflict in Postmodern America: A Response to Professor Perry, 76 Iowa L Rev 1067, 1067–68 (1991)Google Scholar, Professor David Smolin, a self-described Evangelical Christian, “demand[s]” that legal academics and others “cease their repression” of “Christian traditionalists.” My reply is one of genuine anguish. Assuming I am included within this description, I would gladly meet this demand and cease, if—but only if—traditional Christians foreswear their repressive, disrespectful, and putatively destructive triumphal eschatology. My present view on the inevitability of a measure of exclusivism in public is directly proportional to the traditionally-described violent final theological act which promises my destruction. So I will happily favor Professor Smolin's request and with genuine enthusiasm join debate on the propriety of our respective theological positions for a pluralistic democracy, but only on the terms so set. Absent an end to theological imperialism, the question for me is simple: Why should I welcome a conversation with one whose theology not only expressly dishonors my religion, but denies my equality and humanity, and at least implicitly promises my actual, physical destruction? Why should such a disrespectful theological position find any manner of public support in a liberal democracy? The theologian Harvey Cox, The Warring Visions of the Religious Right, Atlantic Monthly at 59 (Nov 1995), underscores my dilemma when he notes that conservative Protestants laud their support for Israel, but he notes that such support “is based on an end-time theological scenario according to which the return of the Jews to the Holy Land is a prelude to the Battle of Armageddon, the Second Coming, and the subsequent conversion of Jews to Christ”. See Popkin, Richard, The Excommunicant, London Rev Bks at 38, 39 (10 15, 1998) (Book Review)Google Scholar.

Let me add that I appreciate the helpful efforts of Professor Dan Conkle, who teases out the variety of “fundamentalisms” in American culture, makes many useful comparisons to “secular fundamentalisms,” and notes mostly accurately that “[a]s a group, religious conservatives … certainly are not terrorists in the making.” Conkle, Daniel O., Secular Fundamentalism, Religious fundamentalism, and the Search for Truth in Contemporary America, 12 J Law & Relig 337, 346 (1995–1996)CrossRefGoogle Scholar. I don't mean to describe the threat over-broadly, but the deep personal pain I feel in response to the eschatological positions set forth above is very real, psychologically oppressive, and, in my estimation, outside our constitutional public polity. See Macedo, Stephen, Transformative Constitutionalism and the Case of Religion, 26 Pol Theory 56 (1998)CrossRefGoogle Scholar (arguing that a constitutional system wedded to the rule of law requires a normative vision of self-perpetuation; i.e., a liberal order that pervades the educational system). As I suggest below, I think there is some constitutional support for this last assertion. See note 105.

23. I have addressed this question in detail elsewhere, Blumoff, 11J Law & Relig 591 at 605-15 (cited in note 13), but for now suffice it to note several factors which undermine the need. First, “the claim that religious arguments are in reality excluded from the public square was and is [and still remains] distinctly hyperbolic.” Levinson, Sanford, Religious Language and the Public Square 2061, 2062, in 105 Harv L Rev (1992)Google Scholar (reviewing Perry, Michael J., Love and Power: The Role of Religion and Morality in American Politics (Oxford U Press, 1991))Google Scholar. Religious language plays a prominent and appropriately prophetic role in public discourse. Second, the idea that excluding religious language from public debate leaves some citizens voiceless is a claim with little empirical substance, as far as I can tell. Those who make the assertion are themselves fully able to speak secular English. See Carter, Culture of Disbelief at 69 (cited in note 13); id at 56 (quoting Perry, , Love and Power: the Role of Religion and Morality in American Politics at 72–73Google Scholar citing note 8). Martin Marty makes a critical point in this regard. After noting that he lives in a secular, rational world nearly all of the time, he explains the polarity many people live with: “Then, I walk into a sanctuary where faith beckons to faith. In the midst of my own ambiguities and doubts, as a believer I am drawn to that text which says love is stronger than death, that you won't be overwhelmed. I can't prove it, but I believe it.” Marty, Martin, Religio-Secular Society, in Anderson, Walter Truett, ed, The Truth about the Truth: De-Confusing and Re-Constructing the Postmodern World 215 (Tarcher/Putnam Books, 1995)Google Scholar (transcript of interview that first appeared in 10 New Perspectives Q 55 (1993)). As my former Rabbi pointed out, “During my rabbinic training, we debated God's existence all the time. But when we went into the sanctuary, all doubts were cast aside.” One need not doubt that there are among us those who cannot make this transition; by stipulation, then, they are unable to live and participate in the secular world. Their exclusive commitment to the sacred, however, must not prevent the rest of us from moving on in the secular world while maintaining our differences as best we can. Third, the idea that secular public discussion causes some to cabin their religious beliefs is, in fact, self-limiting: Those who can speak truly only in a sacred language will have few to speak with and are not likely to have a great effect on those who do not share their faith. I have often wondered, as well, how one can recognize the sacred but for the profane.

24. As to the “current conditions” qualification, see notes 20-23- I do understand fully the view that exclusionary rationales are unacceptable as a basis of political morality. William Galston, for example, remarks correctly that liberal theory will exclude some and for them the “costs of treating pluralism as a ‘fact’ are prohibitive, for it is a pluralism that excludes them.” Galston, William A., Pluralism and Social Unity, 99 Ethics 711, 717 (1989)CrossRefGoogle Scholar. For some, those who move well beyond (and even away from) Galston, this rationale for exclusion, amounts to “liberal fundamentalism,” a secular religion intolerant in its own way. Rainey, R. Randall S.J., Law and Religion: Is Reconciliation Still Possible?, 25 Loyola L Rev 147, 190 (1993)Google Scholar; accord Campos, Paul F., Secular Fundamentalism, 94 Colum L Rev 1814, 1820–21Google Scholar (arguing that liberals condemn the religious for failing to appeal to reason).

Although there are a number of vigorous responses to this assertion, here I will address only one: At a deep level, the issue underlying this dispute is epistemological. At least some critics are willing to acknowledge that a premise for the argument that all voices should be heard equally is the radical idea that all knowledge of every sort is equally the product of human construction. Therefore, they boldly assert, liberalism's claim to “partial” comprehensiveness—its “supposed” ability to limit its jurisdictional range—is valid only to the extent that it is “not just one sectarian position vying with other versions of the Good.” This is a position often associated with Alexander, Larry, Liberalism, Religion, and the Unity of Epistemology, 30 San Diego L Rev 763, 763 (1993)Google Scholar and, more generally, Stanley Fish. See, for example, Settling the Just Bounds Between Church and State, 97 Colum L Rev 2255, 2299–2300 (1997)Google Scholar. See also Gedicks, Frederick Mark, The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence 145 n. 52 (Duke U Press, 1995)Google Scholar; Greenawalt, Kent, Private Consciences and Public Reasons 101 (Oxford U Press, 1995)CrossRefGoogle Scholar. On this view, liberalism can evade the question of how it “treat[s] it own rejection” only by comparing its epistemological approach with that of an intolerant religion. Alexander at 763, 764.

Even if true, an assertion I reject at length in my completed manuscript, Liberalism's Covenant: An American Public Theology ch 4 (copyright 1999-2000 © by Theodore Y. Blumoff), the conclusion genuinely beggars the question of relevance: So what? First, no truly religious person could easily accept this nihilistic view. Second, that any political theory will create and retain for itself the means of its own survival (and will do so through familiar tropes of one sort or another) is universal. That liberalism rejects conduct and even speech which would undermine one of its basic tenets must be regarded as an unexceptionable constant. See, for example, 18 U.S.C. § 844(f) (1994) (prohibiting the destruction of buildings in commerce and employed against Oklahoma City defendants); Brandenburg v Ohio, 395 U.S. 444 (1969) (protecting subversive advocacy unless it threatens imminent serious harm). Because of its constancy with respect to every political theory, it is largely irrelevant. Thus, to expect that liberalism would foreswear the power of self-defense is more than unreasonable; it is thoroughly ahistorical, reflective of a dangerous strain of perspectivalism, and politically naive.

25. I say “mostly” because the point I make in the remainder of this paragraph speaks, I think, to difficult issues of human nature and social psychology that I am unable fully to articulate and clarify. See Putnam, The Many Faces of Realism (cited in note 21).

26. The question is framed in a variety of ways and from a variety of ideological perspectives. The actual question quoted above in the text is from Gray, John, Isaiah Berlin 152 (Harv U Press, 1996)Google Scholar; see Walzer, Michael, Are There Limits to Liberalism?, New Republic 28 (10 19, 1995) (Book Review)Google Scholar. Galston, William A., Two Concepts of Liberalism, 105 Ethics 516 (1995)CrossRefGoogle Scholar (making the lesser claim that a comprehensive theory of liberalism would maximize diversity rather than autonomy). Cf. Rainey, 25 Loyola L Rev 147 at 190 (cited in note 24) (condemning “liberal fundamentalism”).

27. “[A] doctrine is fully comprehensive if it covers all recognized virtues within one rather precisely articulated system; whereas [it] … is only partially comprehensive when it comprises a number of nonpolitical values and virtues and is rather loosely articulated. Rawls, Political Liberalism at 152 n.17 (cited in note 4); also see Rawls, , The Priority of Right and Ideas of the Good, 17 Philos & Pub Aff 251, 252–53 (1987)Google Scholar.

28. By “value pluralism” I mean to borrow from Isaiah Berlin: We not only create our own values, but they are almost always (Berlin would say “always”) at some level incommensurable and uncombinable; that is, they evade comparison along a “higher” rationale and thus cannot be reconciled. See Berlin, Isaiah, The Romantic Revolution, in Hardy, Henry, ed, The Sense of Reality 168 (Farrar, Straus & Giroux, 1996)Google Scholar; see Gray, Isaiah Berlin especially chs 1 and 6 (cited in note 26).

29. See, for example, the former Yugoslavia.

30. See note 3.

31. That both classical and contemporary liberal theorists presuppose the relevance and power of religious association in the private realm is indisputable, although well outside the purview of this essay. For a sampling of this discussion see, for example, Locke, John, A Third Letter for Toleration, in 6 The Collected Works of John Locke 145–46 (London, 1812)Google Scholar, quoted in Snyder, David C., John Locke and the Freedom of Belief, 30 J Church & State 227, 239 (1988)CrossRefGoogle Scholar. By its own terms, Locke's position does reject a priori particular religious beliefs, such as the Presbyterian/Calvinist doctrine of “The Elect,” and religious views that forbid believers to question certain precepts or ex cathedra decrees. See Kessler, Sanford, Locke's Influence on Jefferson's Bill Establishing Religious Freedom, 25 J Church & State 232, 232–33 (1983)CrossRefGoogle Scholar. Locke's position does not, however, necessitate die conclusion that he viewed these sets of beliefs as “irrational” or “irrelevant;” he simply viewed them as a betrayal of traditional “true” Christianity. To the contrary, Locke believed that much of Christianity had misperceived the true nature of the Reichley, Gospel. A. James, Religion in American Public Life 91 (Brookings Instit, 1985)Google Scholar. See also Koontz, Theodore J., Religion and Political Cohesion: John Locke and Jean Jacques Rousseau, 23 J Church & State 95 (1981)CrossRefGoogle Scholar; Richards, David A.J., Religion, Public Morality, and Constitutional Law, in Pennock, Roland and Chapman, John W., eds, Nomos XXX: Religion, Morality, and Law 152, 153, 154 (NYU Press, 1988)Google Scholar.

For a sampling of contemporary liberal theory see, for example, Rawls, John, The Idea of an Overlapping Consensus, 7 Oxford J Leg Studies 1, 10 n.17 (1987)CrossRefGoogle Scholar (“Justice as fairness assumes … that the values of the community are not only essential but realizable, first in the various associations that carry on their life within the framework of the basic structures, and second in those associations that extend across the boundaries of nation-states, such as churches and scientific societies.”). See also Rawls, TJ at 214-15. Ackerman, Bruce, Why Dialogue? 86 J Phil 5 (1989)CrossRefGoogle Scholar (urging restraint on the public use of religious language and debate grounded in religious beliefs because such beliefs are so deeply held); Audi, Robert, The Place of Religious Argument in a Free and Democratic Society, 30 San Diego L Rev 677 (1993)Google Scholar (noting that religiously-grounded arguments have a rightful place in a citizen's deliberation on the public good, but urging public restraint in part to protect religion); Nagel, Thomas, Moral Conflict and Political Legitimacy, 16 Phil & Pub Affairs 215, 234, 236 (1987)Google Scholar (suggesting that public agreement is unlikely when an “appeal to truth collapses into an appeal to what I believe”) [hereinafter Moral Conflict].

32. Fackenheim, Emil L., Quest for Past and Future: Essays in Jewish Theology 6 (Ind U Press, 1968)Google Scholar quoted in Falk, Ze'ev W., Jewish Religious Law in the Modern (and Postmodern) World, 11 J Law & Relig 465, 481 (1994–1995)CrossRefGoogle Scholar.

33. Neher, André, The Exile of the Word: From the Silence of the Bible to the Silence of Auschwitz (Jewish Pub Soc'y America, Maisel, David, trans, 1981)Google Scholar (excerpted in Roth, John K. & Berenbaum, Michael , eds, Holocaust: Religious & Philosophical Implications 10-11, 12 (Paragon House, 1989))Google Scholar.

34. My colleague, Jack Sammons, has suggested this as a possible reading of the Fackenheim quote. Although I acknowledge this as a potential interpretation of the text, I do not think it reflects Fackenheim's ethos, which is that Jews of all stripes simply must survive despite Hitler. See Fackenheim, Emil, Holocaust: Religious & Philosophical Implications at 291–95 (cited in note 33)Google Scholar. For a criticism of this position as lacking sufficient content, see Goldberg, Michael, Why Should Jews Survive: Looking Past the Holocaust Toward a Jewish Future 89–91 (Oxford U Press, 1995)Google Scholar.

35. See, for example, Gen 4:8 (Cain & Abel); Gen 25:31, 27:1-29 (Jacob & Esau); Gen 37:28 (Joseph & brothers); Gen 9:25-7 (Noah & Canaan); Gen 12:10-13, 20:1-2 (Abraham & Sarah). Jealousy begins with the Edenic expulsion:

36. Gen 19:30-5 (Lot & daughters); Gen 19:8 (Lot offering his daughters). As to incest, one commentator notes that “it is by no means certain … the narrator condemns” the acts. Fokkelman, J.P., Genesis, in Alter, Robert and Kermode, Frank, eds, The Literary Guide to the Bible 42 (Harv U Press, 1987)Google Scholar.

37. See Austin, J.L., A Plea for Excuses, 57 Proc Aris Soc'y 1, 11 (1956)Google Scholar (“[O]rdinary language is not the last word: in principle it can everywhere be supplemented and improved upon and superseded. Only remember, it is the first word.”).

38. The conventional wisdom suggests at least two authors of the first several chapters, “P” the Priestly account, written about 600 b.c.e. and “J” the author who identifies God as revealed to Moses, written sometime earlier. See, for example, Armstrong, Karen, In the Beginning: A New Interpretation of Genesis 9, 18 (Alfred A. Knopf, 1996)Google Scholar; Damrosch, David, The Narrative Covenant: Transformations of lie in the Growth of Biblical Literature (Harper & Row, 1987)Google Scholar; Miles, Jack, God, a Biography 29 (Alfred A. Knopf, 1995)Google Scholar. Others suggest that there may be as many four different sources for different narratives. Mitchell, Stephen, Genesis: A New Translation of the Classical Biblical Stories xxvii (HarperCollins, 1996)Google Scholar; Visotzky, Reading the Book: Making the Bible a Timeless Text at 30 (cited in not e 57). The classic study remains that of Friedman, Richard Elliott, Who Wrote the Bible? (HarperCollins, 2d ed 1997)Google Scholar.

39. See, for example, Gen 3:14-19, 22-24 (the expulsion and posting of sentry); 4:11 (cursing Cain); 6:7 (promising to “blot out from the earth”) 19:23-4 (raining “sulphurous fire” from the heavens).

40. By “analogy” I refer to the idea that what we say about God we also say about ourselves, albeit in qualitatively undefinable and different ways. The “agnostic” view states simply that we cannot know whether the propositions we advance in our descriptions of God are true or false. The skeptical or “Cartesian” approach denies entirely our ability to know anything about God. See Seeskin, Kenneth, Jewish Philosophy in a Secular Age 53 (SUNY Press, 1990)Google Scholar.

When I state that I take the language seriously but not literally, I also implicitly position myself among those for whom the questions of who created the earth and how it occurred are at best secondary, and more generally, of little practical relevance. That there should be a myth of creation or of beginning, in contrast, is essential, “for without … this [founding] myth, be it what it may, the very existence of the universe and of humanity depend.” Pettazzoni, R., Myths of Beginning and Creation Myths27, in Essay on the History of Religion (Leiden, 1954)Google Scholar (quoted in Westermann, Claus, Genesis: An Introduction 21 (Fortress Press, Scullion, John J., trans, 1992))Google Scholar.

41. Perhaps I should make clear here that I do not think religion is a search for truth, but a struggle for meaning. Truth with a capital “T” is easy; the quote from Hillel that begins this essay articulates truth. What that truth means contextually—with real lives and real people's interests at stakes—is where the difficulty begins. How do we treat real people in non-hurtful ways? As I suggest below, I don't know how a political culture gives a useful answer to that question in a sectarian language, beyond respecting the sect as a sect.

42. “The ethical expression for what Abraham did is that he meant to kill Isaac; the religious expression is that he meant to sacrifice Isaac—but precisely in this contradiction is the anxiety that can make a person sleepless, and yet without this anxiety Abraham is not who he is.” Kierkegaard, Soren, Fear and Trembling 30 (Princeton U Press, Hong, Howard V. & Hong, Edna H., eds & trans, 1983 (originally published in 1843))Google Scholar.

43. Williams, , Ethics and the Limits of Philosophy at 33 (cited in note 6)Google Scholar.

44. Visotszky, Reading the Book: Making the Bible a Timeless Text at 70 (cited in note 57) (referring to this process as “eisegesis,” filling in the interstices with content the reader brings to the text from without); Hillel Halkin, Genesis and the Talking Heads, Commentary, Feb 1997, at 44 (labeling as “superimposition” the process of filling-in the vast interstitial spaces between verses and words).

45. Thus, although I recognize that Genesis combines a number of ancient texts and reflects many compromises and adjustments made over time, I am uninterested in entering into debate about the accuracy of the “documentary hypothesis.” See Friedman, Who Wrote the Bible? (cited in 38). Rather, I take the final redactor's product as the product of a final redactor, and experience the work as a developing narrative, and a “purposeful documentary montage that must be perceived as a unity, regardless of the number and types of smaller units that form the building blocks of its composition.” Josipovic, , The Book of God: A Response to the Bible at 17Google Scholar (cited in note 12) (quoting from an essay by Joel Rosenberg; citation omitted).

46. Rosenblatt, Naomi H. and Horowitz, Joshua, Wrestling with Angels: What Genesis Teaches us about our Spiritual Identity, Sexuality, and Personal Relationships xvi (Delta Books, 1995) [hereinafter Rosenblatt and Horowitz, Wrestling with Angels]Google Scholar.

47. The notion that we can “agree upon a minimum level of proof” addresses this latter epistemological question in (more or less) ordinary lawyer's verbiage: What quantum of proof is required to support the existence of a narratively-based, theological fact, such that all reasonable, open-minded people of faith can agree that the fact exists? As a lawyer and with sincere apologies for obvious epistemological shortcomings, in answering the question of amount, I have looked for analogies to the three traditional legal standards one might employ for an approximate answer: (a) proof beyond a reasonable doubt (in theory, a very high hurdle for justifying belief); (b) proof by clear and convincing evidence (a substantial hurdle); and (c) proof by a preponderance of the evidence (the simple, “more-likely-than-not” criterion). Of these three, the first seems far too demanding. Moreover, it also stimulates (what often appear as self-deluded) notions of privileged access to sacred knowledge—“I can see it but you can't”—that I wish to place out of bounds. In contrast, (c) seems so easily met as to interject the very contentiousness I hope to avert. Almost by default, (b) emerges as most workable; it requires acknowledgment that determinate understanding cannot be satisfied so long as there exist reasonable competing alternative explanations for text.

That this whole epistemological enterprise is rife with presuppositions is acknowledged. It may well be, moreover, that my own predisposition to strip away such idiosyncratic conditioning itself reflects belief in the existence or construction of a potential interpretation, a belief others would deny. It is quite clear as well that one of the unshakeable premises of this work is the impossibility of knowing God's will. Ironically, orthodoxies admit this premise formally, but deny it in fact just to the extent that they purport to know God's will and hope to shape public conduct according to their narrow understanding. I also accept as unchallengeable the metaphysical tenet that our human capacity to know and understand is at all times severely limited. My proof for this proposition is not direct; it too is analogical.

Such proof as exists emerges in a comparison between the impossibly strong claim to full knowledge of a transcendent Being, and the weaker—and verifiable—claim that all men and women are imperfect beings, as both individuals and groups of religious individuals. To assume the equivalence of the strong and weak claims leads to the same dead-end as does the analogous ontological equation that denounces the distinction between the strong claim of internal Realism—the existence of “things-in-themselves”—and the lesser claim of external realism which recognizes something “like truth” when the epistemological conditions are sufficiently promising for the assumption of its presence, thereby permitting agreement when we pursue non-foundational intellectual endeavors. See Putnam, The Many Faces of Realism at 61 (cited in note 21). For example, few would deny that I am sitting in a “real” chair as 1 type and edit this sentence or that “it's very cold in Atlanta this January day.” The strong Kantian claim is incoherent: “Whose chair?” or “cold” as compared to what? The weaker claim reflects common sense. For example, if one lives in Atlanta long enough, one feels cold on a day like today. While the strong truth claims of religion ordinarily are not incoherent, neither are they generally accessible to all but a privileged few within any denomination; and they are radically contestable among denominations. In contrast, only the most arrogant among us disavows the truth of individual fallibility. Who challenges the reality that I am sitting on a chair? That it's cold today for Atlantans? Thus the criticism that my analysis substitutes a secular-religious truth for a purely religious one equates what is, at most, verifiable only to a privileged few with what we can all verify everyday. See, for example, Fodor, Jerry, Cat's Whiskers16, in London Rev Bks (10 30, 1997)Google Scholar.

48. “Reasonable,” in the context, imposes only de minimis qualifications, ones bounded by primitive observation and minimal skills at drawing rational inferences. “Primitive” here refers to the recognition of evidence to which virtually everyone, regardless of creed, would agree. For example, the ability to observe and report the fact that I am sitting on a chair as I type this paragraph at this moment in time illustrates many if not most of the cognitive functions to which I refer. That the content of this footnote relates back in time to the actual date of typing reflects mundane cognitive skills too. In this way, I am attempting to reduce to the extent possible the influence of historically contingent, environmental conditioning.

49. It remains the case, of course, that faith can blink meaning. So be it.

I am obviously aware (at least cognitively) that the Christian tradition reads all of Hebrew Scripture, including Genesis, as prelude to and preparation for the appearance of Jesus of Nazareth; and that the entire text takes on new meaning thereafter. I could not and clearly would not gainsay, therefore, that Jesus of Nazareth (and Mahomet) have not effected this relationship for many; of course, they have. I speak only to the common God we all purport formally to share, YHWH, and then largely to the nature of the beings God created. Thus, while I am emphatically not a literalist, I do take seriously the notion that humankind was created from something, by something, and for something; and, to an unknowable extent, that we are created in our conception of God's image. For some, the project I pursue is worse than futile, it is blasphemous and thus deeply offensive. To those individuals I sincerely apologize beforehand. I understand that they hold their beliefs as deeply as I; and I certainly do not intend even to suggest that my work limits their personal understanding of their revelation. I suspect that many if not all will select themselves out of this dialogue. The task in this work, however, must resist that tradition to the extent that it bears upon the issue of religion in public discourse. To read Genesis as traditional Christians do, it seems to me, is to deny a priori the existence of a maximally inclusive Judeo-Christian Tradition that places boundaries around public discourse; that is, it denies the existence of any body of common narrative free from the exclusive theological claims of others. It may be that the whole notion of a “common narrative” is itself a contradiction in terms. If so, I am wasting my time. In the absence of an Archimedean point against which we can stake any strong claims of “Truth,” however, and with faith that the search for scriptural commonality is useful, I am fully committed to moving on, my sincere apologies notwithstanding.

50. Kierkegaard, Fear and Trembling (cited in note 42).

51. See Seeskin, , Jewish Philosophy in a Secular Age at 32–35 (cited in note 40)Google Scholar.

52. Maimonides, The Guide for the Perplexed 2.18 at 181-83 (Dover Ed, 1956); see Seeskin, , Jewish Philosophy in a Secular Age at 38–40 (cited in note 40)Google Scholar.

53. Note how the great sage begs the question of how one knows that God's uniqueness is incomparable. How can one know that to be the case, if, as Maimonides asserts, one cannot even analogize? See Maimonides, The Guide for the Perplexed at 1.58 (cited in note 52). To say that one cannot analogize, however, is to deny the basis for dis-analogy as well; and to deny analogy is to deny any discourse about God. What we can say—and it (a) follows from Maimonides' own insight, and (b) is all we can say—is that our analogies may be appropriate.

54. Lipstadt, Deborah E., Not Facing History: How Not to Teach the Holocaust, New Republic 26, 29 (03 6, 1995)Google Scholar. See Roth, John K. and Berenbaum, Michael, eds, Holocaust: Religious & Philosophical Implications 10-11, 12 (Paragon House, 1989)Google Scholar.

55. See, for example, Kaysen, Carl and Rathjens, George W., Send in the Troops: A UN Foreign Legion, 20 Wash Q 207 (Winter 1997)CrossRefGoogle Scholar; Chaddock, Gail Russell and Matloff, Judith, West's Response to Zaire Crisis Draws Suspicion in Africa, in The Christian Science Monitor 1 (11 6, 1996)Google Scholar.

56. Hauerwas, Stanley, Remembering as a Moral Task, in Against the Nation: War and Survival in a Liberal Society 63 (U of Notre Dame Press, 1992)Google Scholar. Halbertal, Moshe, Speak Memory, in New Republic 40–41, (10 18, 1993)Google Scholar notes that throughout the decade of the 1950s silence was a form of response among Israelis: “[T]he silence was also self-imposed by the survivors themselves. The memory was not only unbearable, it was also ineffable.”

57. Feld, Edward, The Spirit of Renewal: Finding Faith after the Holocaust (Jewish Lights, 1994)Google Scholar. See Borowitz, Eugene, Liberal Judaism (U.A.H.C., 1984)Google Scholar. In Reading the Book: Making the Bible a Timeless Text especially ch 2 (Schocken, ed, 1996)Google Scholar, Burton L. Visotzky makes the related point that Jewish theology itself must change with each generation to keep Torah vital.

58. See Friedman, Richard Elliott, The Hidden Face of God 92 (Harper, 1995)Google Scholar (“Once a covenant doctrine was in place, Israel's historical fortunes would naturally be interpreted in terms of the nation's adherence to covenant. If they were suffering, it must be because they had done something … in violation of the covenant.”). See also Falk, 11 J Law & Relig at 493 (cited in note 32), who makes the following points as he discusses the work of Faur, Jose, Golden Doves and Silver Dots (Ind U Press, 1986)Google Scholar.

See also Jonas, Hans, The Concept of God after Auschwitz: A Jewish Voice 132–33Google Scholar, in Vogel, Lawrence, ed Mortality and Morality: A Search for the Good after Auschwitz (Northwestern U Press, 1996)Google Scholar.

59. A full discussion of the issues raised in this sub-section is contained in Blumoff, in note 5.

60. See, for example, Mann, Thomas, The Book of the Torab: The Narrative Integrity of the Pentateuch 12 (John Knox Press, 1988)Google Scholar.

61. This definition is from Soloveitchik, Joseph B., The Lonely Man of Faith, 7 Tradition 11 (1965)Google Scholar. Maimonides, Guide 1.14, at 25 (cited in note 52) offers an array of definitions for the homonymous Hebrew term adam, including “man” and “humankind,” along with its derivation from the term adamah or “earth.” See also Trible, Phyllis, God and the Rhetoric of Sexuality 76 (Fortress Press, 1978)Google Scholar (defining adam as “earth creature” which, in Hebrew, is a masculine noun).

62. Ariel, , What Do Jews Believe: The Spiritual Foundations of Judaism at 52–53Google Scholar (cited in not (quoting Bereshit Rabbah 8:1). Robert Alter translates the 'adam of verse 26 as “human,” noting that in the context any other translation would be nonsensical; it is thus a “generic term for human beings, not a proper noun.” Alter, Robert, Genesis: Translation and Commentary 5 n to verse 26 (W.W. Norton & Co, 1996)Google Scholar. Alter also notes that “him” is “grammatically but not anatomically masculine.” Id. See also Raschke and Raschke, The Engendering God: Male and Female Faces of God at 10 (cited in note 5), (“[T]he sense of God Two in One—when the binomial formula refers not to some internal opposition but to the complementarity of gender—is not contemporary social construction of reality.”).

63. The original Hebrew text supports this conclusion. See, for example, Trible, , God and the Rhetoric of Sexuality at 18–19 (cited in note 5)Google Scholar, (“[T]he singular word ha- 'adam, with its singular pronoun ˴otô, shows that male and female are not opposite but rather harmonious sexes. Ha- ˴adam is not an original unity that is subsequently split apart by sexual division. Instead, it is the original unity that is at the same time the original differentiation …. [T]he parallelism between ha-˴adam and ‘male and female’ shows further that sexual differentiation does not mean hierarchy but rather equality.”); Carmody, Denise Lardner, Biblical Woman: Contemporary Reflections on Scriptural Texts 10 (Crossroad P Co, 1988)Google Scholar; Raschke, and Raschke, The Engendering God at 10–11Google Scholar (cited in note 5); Rosenberg, David and Bloom, Harold, The Book of J 179 (Grove Weidenfeld, 1990)Google Scholar.

64. Compare Soloveitchik, 7 Tradition at 19-20 (cited in note 61) who describes Adam I, the humanity created in ch 1, as the person(s) who accomplish and seek worldly dignity; together Adam represent natural community without which one cannot live; this is the social side of humanity—outgoing, conversational, etc. It is “natural” in the sense that humans are “biological being[s] bent on survival.” It takes organizational form because of “individual helplessness” in the face of a hostile environment. Unity, in this vision, is thus indispensable.

65. Jack Miles, among others, notes the change from ‘elohim to yabweh ‘elohim. “[T]he text clearly regards … these names as referring to one and the same being, [but] that being … conducts himself somewhat differently under his different names in the Book of Genesis.” Miles, Jack, God: A Biography at 30 (cited in note 38)Google Scholar.

66. Compare Gen 1:1 (“When God began to create heaven and earth …”) with Gen 2:4b (“When the Lord God made earth and heaven …”); see Friedman, , Who Wrote the Bible? at 191–92Google Scholar (cited in note 38). The use of the conditional “purported” reflects the difficulty one encounters in determining what the protagonist has done to anger yabweb 'elohim. See note 69 and accompanying text.

67. The theme of God's disappearance is thoroughly documented in Freedman's, Richard Elliott, The Hidden Face of God (HarperCollins, 1995)Google Scholar.

68. It bears repeating that all of our knowledge of God rests on the razor thin reed of possibility. That the universe exists when it doesn't need to supplies all of the empirical data we can muster concerning God's existence. As I've suggested repeatedly, however, that possibility alone is sufficient.

69. There are almost limitless other illustrations of narrative ellipticity and motivational obscurity. The story of Cain and Abel provides an excellent example. Without apparent solicitation Cain, the first born, offers God fruit—a gesture representing the first act of monotheistic worship in the history. Abel then joins his brother, adding his gift, a choice yearling lamb. For reasons undisclosed, God “paid no heed” to Cain, but responded instead to Abel. Cain is troubled by the snub. Noticing Cain's demeanor, God warns him to “do right” because “sin couches at the door,” and sin will try to master him. (Gen 4:3-5) To this point in the narrative, Cain is guilty of nothing but loving God. Similarly, before the great flood, the reader is told only that “[t]he Lord saw how great was man's wickedness on earth, and how every plan devised by his mind was nothing but evil all the time. And the Lord regretted that He had made man on earth, and His heart was saddened.” (Gen 6:5-7) And again, before raining “sulphurous fire” down on Sodom and Gomorrah, we are told only that their “outrage … is so great, and their sin so grave” they must be destroyed. (Gen 18:20) What the sin consisted of we do not know. Karen Armstrong reaches the only rational conclusion: “God's ways are becoming increasingly obscure to human beings [and] … [a]U we can do is to confront the apparent injustice of God with fortitude, to hold up our heads and resist the temptation to add to the world's ills.” Armstrong, In the Beginning: A New Interpretation of Genesis at 36 (cited in note 38).

70. Many commentators have made similar points. See, for example, Rosenblatt, and Horwitz, , Wrestling with Angels at 49–51Google Scholar (cited in note 46). Cf. Armstrong, Karen, In the Beginning: A New Interpretation of Genesis at 32–33Google Scholar (cited in note 38) (“Genesis is a story of beginnings. We can see that in Adam and Eve, humanity was starting to grow up. Human beings cannot live in the womb forever: they have to be ejected from Eden and become separate individuals, forced to make their own way in an alien world.”). Compare Rosenberg and Bloom, The Book of J at 184 (cited in note 63) (viewing God as both mother and father, and describing what has been interpreted generally as the unwillingness of Adam, Eve, and the serpent to take responsibility, each blaming die other, is instead viewed as “childlike [reasoning], relating] the happening as a cause-and-effect phenomenon”).

71. Sarna, Nahum M., Understanding Genesis: The World of the Bible in the Light of History 24, 27 (Schocken Books, 1966)Google Scholar. Compare Miles, God, a Biography at 32 (cited in note 38) describing the “classic theological interpretation of ‘the fall of man’” as humankind suffering a spiritual death with the consumption of the fruit of the tree of knowledge; Bonhoeffer, Dietrich, Creation and Fall: A Theological Interpretation of Genesis 1-3 at 76 (Collier Books, 1959)Google Scholar (“[T]his act of man whom God created as man and woman is a deed of mankind from which no man can absolve himself.”).

72. Recall the examples in text, incest aside: brother killing brother, brothers cheating brothers, brothers threatening to kill brother, grandpa enslaving an apparently innocent grandson, candidate for future sanctification selling his wife—not once but twice—to save his own skin and make a buck, as well as persistent jealousy and deceptions on immeasurable scales. Gen 4:8 (Cain & Abel); Gen 25:31, 27:1-29 (Jacob & Esau); Gen 37:28 (Joseph & brothers); Gen 9:25-7 (Noah & Canaan); Gen 12:10-13, 20:1-2 (Abraham & Sarah). See Gen 3:22 (stationing the cherubim).

73. Bonhoeffer, , Creation and Fall: A Theological Interpretation of Genesis 1-3 at 64Google Scholar (cited in note 71); Leighton, Christopher M., The Legacy of Cain in Leighton, Christopher M. and Brawarsky, Sandee, eds, Talking about Genesis: A Resource Guide 50, 52 (Doubleday, 1996)Google Scholar.

74. Zornberg, Avivah G., Still in God's Image, in Talking about Genesis at 71–72 (cited in note 73)Google Scholar.

75. Coles, Robert, On Temptation, in Talking about Genesis at 44–45 (cited in note 73)Google Scholar.

76. Plato, The Republic (505e) (Hackett Pub Co, G.M.A. Grube, trans, 1992); Maimonides, Guide (3.11) at 267 (cited in note 52); Bonhoffer, , Creation and Fall: A Theological Interpretation of Genesis 1-3 at 25 (cited in note 71)Google Scholar; Fackenheim, Emil L., To Mend the World: Foundation of Post-Holocaust Jewish Thought 169 (Ind U Press, 1994)Google Scholar. The topic is dealt with in more detail in Seeskin, , Jewish Philosophy in a Secular Age at 194–97Google Scholar (cited in note 40).

77. See, for example, Boadt, Lawrence, Reading the Old Testament: An Introduction 126 (Paulist Press, 1984)Google Scholar (distinguishing the flood story from its predecessors as “a religious lesson told in mythological language about how God's mercy and promise far exceeded any terrible disaster to human life”); Sarna, , Understanding Genesis: The World of the Bible in the Light of History at 22Google Scholar (cited in note 71) (elaborating on and distinguishing earlier pagan stories of creation with the narratives in Genesis).

78. Karen Armstrong makes this essential point in the context of the Cain and Abel narrative. All we can say with certainty is that “[i]f God is unfair, the world can make no ultimate sense.” Armstrong, , In the Beginning: A New Interpretation of Genesis at 36Google Scholar (cited in note 38) (noting that the Bible gives no explanation for God's behavior).

79. As an epistemological matter, it follows that if a God of creation is possible, then a God who subsists today is possible too. After the Holocaust, however, I simply would allow that if God still does exist, and if that God is purported to possesses the qualities of omnipotence, omniscience, and omnibenevolence posited in the traditional understanding, then I want nothing to do with it. On the qualities generally attributed to God within western monotheisms, see Audi, Robert, gen ed, The Cambridge Dictionary of Philosophy 207 (Cambridge U Press, 1995)Google Scholar; Honderich, Ted, gen ed, The Oxford Companion to Philosophy 314–15 (Oxford U Press, 1995)Google Scholar.

80. Cohen, Hermann, Religion of Reason: Out of the Sources of Judaism 86 (Frederick Ungar Pub Co/Simon Kaplan, 1972)Google Scholar. I think it is possible to agree with Cohen's statement but reject his larger conclusion that God is only the love of a moral ideal. See Seeskin, , Jewish Philosophy in a Secular Age at 101–03 (cited in note 40)Google Scholar.

81. In my opinion, the unbreakable connection between equality and moral autonomy undermines the claim that equality is honored by fundamentalist evangelizers who, ignoring the religion (and sometimes, regrettably, even the requests) of others, push the “Word of God” on potential converts. (Some claim further that the would-be convert's refusal to accept their word leads to damnation.) Frankly, I cannot imagine a practice more disrespectful of the norm of equal moral autonomy.

82. There is a variety of freedom that follows when one gives oneself over to a religious community or ideal; this entails a choice to forebear (at least in part) future individual decision-making. See Walzer, Michael, A Note on Positive Freedom in Jewish Thougt 1 S'Vara 7 (1990)Google Scholar. Those communities are, in their nature, self-limiting; and just to the extent that they wish to avoid the norms underlying the perpetuation of a liberal democracy, they should live outside the geographic confines of liberal democratic society. See, for example, Wisconsin v Yoder, 406 U.S. 205 (1972) (excusing Amish children living in a cloistered community from Wisconsin's mandatory education past eighth grade). For the view that Yoder was rightly decided, but which fails to address whether its correctness inheres at least in part because of the cloistered nature of the community, see Galston, William A., Two Concepts of Liberalism, 105 Ethics 516 (1995)CrossRefGoogle Scholar (distinguishing between autonomy and diversity, and arguing for a conception of liberalism emphasizing the latter).

83. Sommerville, John, Toward a Consistent Definition of Freedom and its Relation to Value, in Friedrich, Carl J., ed, NOMOS IV 289, 290, 293–95 (1962)Google Scholar. One could argue, of course, that I should read the “necessary” as a qualifier rather than an absolute; that is, the author is suggesting that there might be a relationship between freedom and value, but that such a relation inheres in context rather than the concept of freedom as such. Cf. id at 293-95 (stating that freedom is simply absence of constraint). As I note in text, this explanation, though useful, nonetheless ignores the theological position of freedom in moral development.

84. It just seems, then, that the critics of freedom as a metaphor—those who view it merely as a freedom “from” some form of regulation—miss the crucial obverse angles: Free from such control, we who are blessed are required to push ourselves always and harder toward an understanding of decency. That becomes our calling (whether we do it well or not). For those of us who have never been (and probably will never be) in a position to exercise the lessons we think we've learned about decency much beyond our inherent selves (and delivered at retail), such freedom is an essential constituent of our hoped-for humanity.

85. Benn, Stanley I., Privacy, Freedom, and Respect for Persons, in Pennock, J. Roland and Chapman, John W., eds, NOMOS XIII 1 (NYU Press, 1971)Google Scholar (explaining the bystander's negative reaction to Henry Higgins' act of recording Eliza Doolittle's speech during Act I of Pygmalion, as arising because Higgins “fails to show proper respect for persons”).

86. See Westen, Peter, The Empty Idea of Equality, 95 Harv L Rev 537, 548 (1982)CrossRefGoogle Scholar (“To say that two persons are the same in a certain respect is to presuppose a rule—a prescribed standard for treating them—that both fully satisfy.”); accord, Peters, Christopher J., Equality Revisited, 110 Harv L Rev 1210 (1997)CrossRefGoogle Scholar (also applying the tautology description to the analysis of equal protection).

87. Compare Chemerinsky, Erwin, In Defense of Equality: A Reply to Professor Westen, 81 Mich L Rev 575 (1983)CrossRefGoogle Scholar (noting that the principle of equality in constitutional law has moral, analytical, and rhetorical values). I don't mean to suggest that equality, in practice, is a determinate concept; I recognize that it is not. Equality is, as others have pointed out, “an abstract relation expressed symbolically in the formula x = y,” where x and y remain indeterminate until we assign values to them.. See Jaggar, Alison M., Sexual Equality as Parity of Effective Voice, 9 J Contemp L Stud 179, 183 (1998)Google Scholar. I do insist, however, that equality has symbolic and constituting normative significance concerning an individual's opportunity to make choices that transcends its practical operation. See Ward, Cynthia V., On Difference and Equality, 3 Leg Theory 65, 67 (1997)Google Scholar (rejecting a theory of equality based on difference as “necessarily anti-equality”).

88. The public domain Rawls describes is circumscribed more fully than I might limit it. For the most recent description, see Rawls, Public Reason at 767 (cited in note 4) (limiting the political domain to the discourse of judges, government officials including members of the executive and legislative branch, and candidates for public office). For a broader statement of the domain and the reasons therefor, see Kent Greenawalt, Private Consciences and Public Reasons at ch 5 (cited in note 24) (arguing that all citizens and their representatives should exercise restraint). For an older, but still useful statement of variations among liberal theorists, see Mitchell, Basil, Law, Morality, and Religion in a Secular Society ch 6 (Oxford U Press, 1970)Google Scholar; for a more recent statement, see Gardbaum, Stephen, Liberalism, Autonomy, and Moral Conflict, 48 Stan L Rev 385 (1996)CrossRefGoogle Scholar.

89. Rawls, Political Liberalism at 19 (cited in note 4) (emphasis added). A similar conception seems to undergird the work of other liberal theorists, including Nagel, Moral Conflict (cited in note 31).

What follows in this section borrows heavily from Rawls' work. If he were to read this section, however, he would doubtless suggest that I have either taken great liberty with his ideas or woefully misunderstood them. As to the former, I plead guilty; as to the latter, I sincerely hope others will weigh in.

90. Rawls insists that if his work rests on any metaphysical theory, it does so at a sufficiently abstract level that his theory “would not distinguish between metaphysical views … with which philosophy has traditionally been concerned.” Political Liberalism at 29 n. 31. Some of this section may tend to refute that claim. In this context, the criticism of Rawls advanced by William Galston has merit. As he points out, Rawls begins by separating general (deep) truth claims from our shared understanding of our culture, a move that “distorts the deepest meaning of those understandings.” Galston continues:

Galston, 99 Ethics at 725 (cited in note 24). To this I would add that the claim of “unalienability” is inherently and unmistakably theological in western culture. See text accompanying notes 60-64. A related question is the extent to which Rawls eliminates theoretical disputes at the metaethical level, the “whether” and “how” questions, only to find them reappear at the ethical level with his theory of personhood and public reason. Compare Comment, Metaethics and the Overlapping Consensus, 54 Ohio St L J, 1139, 114 (1993) (Susan K. Houser) (making just this point) with Rorty, Richard, The Priority of Democracy to Philosophy in Outka, Gene and Reeder, John P. Jr., eds, Prospects for a Common Morality 254, 264 (Princeton U Press, 1993) (concluding that “Rawls is not interested in conditions for the identity of the self, but only conditions for citizenship in a liberal society”)Google Scholar.

91. On our capacity to conceptualize impartially, see Nagel, Thomas, Equality and Partiality especially ch 2 (Oxford U Press, 1991)Google Scholar. Nagel discusses the possibility of conceiving of an objective self more fully in an earlier work, The View from Nowhere (Oxford U Press, 1986)Google Scholar.

92. Rawls, TJ at 17-22, 136-42; and Political Liberalism at 22-8 cited in note 4). On this theory, those who criticize Rawls for failing to consider the “richness” in human existence are beating Rawls for failing to write a different book, the one they wished he had written. Only by dealing with humankind at a sufficiently high level of abstraction can we hope to articulate a generally acceptable theory of justice. See Collier, Charles W., The Descent of Political Theory and the Limitations of Legal Tolerance, 44 J Leg Ed 273, 276–77 (1994)Google Scholar.

93. SA. Lloyd, Revitalizing Rawls, 69 Chi-Kent L Rev 709, 715-16 (1994).

94. Rawls, Political Liberalism at xviii (cited in note 4) (noting as well that a “modern democratic society is characterized … by a pluralism of incompatible yet reasonable comprehensive doctrines”). On the notion of a political conception of justice, see id at 11-5; Rawls, , Overlapping Consensus at 3–8 (cited in note 84)Google Scholar.

95. Rawls, , Political Liberalism at 139Google Scholar (cited in note 4). On the justice-rooted content of public reason, see Rawls, , Public Reason at 774Google Scholar (cited in note 4) (featuring “a list of certain basic rights, liberties, and opportunities” to which priority and effective means of their use are given). On the basic rights, see Political Liberalism Lecture V (cited in note 4).

96. Galston, 99 Ethics at 713-14 (cited in note 24). See also Galston, , Two Concepts of Liberalism at 519Google Scholar (cited in note 26) (noting that groups who reject the reason norm still might wish to work out a modus Vivendi with a democratic regime). Accord Campos, 94 Colum L Rev at 1826 (cited in note 24); Hampton, Jean, Should Political Philosophy Be Done Without Metaphysics?, 99 Ethics 791, 803–04 (1989)CrossRefGoogle Scholar. For a sympathetic treatment of Political Liberalism which nonetheless points out the great weight placed on “reasonableness,” see Holmes, Stephen, The Gatekeeper: John Rawls and the Limits of Tolerance, in New Republic 39 (10 11, 1993)Google Scholar. On the difficulties this problem poses for political legitimacy, see Nagel, , Equality and Impartiality at 41–52Google Scholar (cited in note 91) (discussing the conundrum of universalizability in the context of the categorical imperative).

97. Rawls, , Public Reason at 780–83Google Scholar (cited in note 4).

98. For the most part, I am using “pluralism” as descriptive of an empirical and sociological fact, and not as a claim of “truth” simplicitcr. See, for example, Berlin, Isaiah, Marxism in the Nineteenth Century, in The Sense of Reality at 121Google Scholar (cited in note 28) (distinguishing Marxism, a system described as embracing a politics of “static perfection,” from pluralism, a system in which “diversity is the price—and perhaps the essence—of free activity”). See Walzer (cited in note 26, (borrowing John Gray's description of Berlin's central idea as one of “value pluralism”). For a discussion of the distinction between empirical pluralism and Berlin's understanding of pluralism as a central, liberal value, see Gardbaum, 48 Stan L Rev at 390 (cited in note 11). Whether such a distinction makes a real world difference is an open question. See Holmes, New Republic at 44 (cited in note 96) (“A plurality of conceptions of the good is a rude fact of modern experience.”).

99. A useful explanation of the sources of these differing, valid reasons is provided by Rawls, , Political Liberalism at 54–58Google Scholar (cited in note 4)(discussing The Burdens of Judgment).

100. See Macedo, Stephen, Public Reason and Reasons for Action by Public Authority: An Exchange of Views, 42 Am J Juris 1, 10 (1997)Google Scholar. See Hampshire, Stuart, Morality and Conflict 106–07 (Harv U Press, 1983)Google Scholar (describing the “inexhaustibility of description”); see Berlin, The Romantic Revolution (cited in note 28).

101. The phrase “reasonably thoughtful and intelligent” refers only to cognitive capacities. I mean only that such a person either presently does think (or has thought deeply) about issues of public values or, given appropriate conditions for thought, is capable of contemplating such issues. See Rawls, , Political Liberalism at 55Google Scholar (cited in note 4) (explaining that the reasonable person in control of her moral powers “can draw inferences, weigh evidence, and balance competing considerations”).

102. Perry, Michael J., Love & Power: The Role of Religion and Morality in American Politics 105–06 (Oxford U Press, 1991)Google Scholar; Macedo, Stephen, The Politics of Justification, 18 Pol Theory 280 (1990)CrossRefGoogle Scholar. See Audi, Robert, The Separation of Church and State and the Obligation of Citizenship, 18 Phil & Pub Aff 259, 278 (1989)Google Scholar (arguing that religious liberty is best preserved if laws restricting individual conduct have “adequate secular (nonreligious) reasons” supporting them); Nagel, , Moral Conflict at 236Google Scholar (cited in note 31) (“There would be no inclination to accept impersonally a general right to try to use state power to limit the liberty of others in order to force them to live as I believe they should live.”) (emphasis in the original).

103. Rawls outlines the many ways in which reasonable comprehensive moral doctrines may conflict in Political Liberalism at 54-58 (cited in note 4). See also Nagel, Moral Conflict (cited in note 31) passim.

104. “Stability,” for Rawls, involves two stages. The first asks whether citizens who come of age under a liberal system “acquire a normally sufficient sense of justice so that they generally comply with those [liberal] institutions,” and the second asks whether, in light of a reasonable, pluralistic democracy, "the political conception can be the focus of the overlapping consensus.” Political Liberalism at 141. As Frank Michelman suggests, “A conception is stable if it can hold the freely given loyalties of adherents to all moral, religious, and metaphysical doctrines that can be expected to arise and survive critical reflection in the public culture that the conception itself is expected to sustain.” Michelman, Frank I., The Subject of Liberalism, 46 Stan L Rev 1807, 1826 (1994)CrossRefGoogle Scholar. On the implications of this observation for public education and the demands of fundamentalist parents, see, for example, Guttmann, Amy, Civic Education and Social Diversity, 105 Ethics 557, 566 (1995)CrossRefGoogle Scholar; Macedo, Stephen, Liberal Civic Education and Religious Fundamentalism: The Case of God v Rawls?, 105 Ethics 468, 469 (1995)CrossRefGoogle Scholar (asking the question whether “solicitude for fundamentalists [is] a fair-minded extension of multi-cultural concern to the political Right,” and answering in the negative, stating that “the need for adjustments [is] not in public policy but in the [fundamentalist] group”).

105. The issue here is often framed as one of reciprocity, the notion that the grounds of social cooperation take root in “publicly recognized rules and procedures that those cooperating accept and regard as properly regulating their conduct.” Those who so cooperate should “benefit in an appropriate way as assessed by a suitable benchmark of comparison.” Rawls, , Political Liberalism at 16Google Scholar (cited in note 4). Also see Guttmann, Amy and Thompson, Dennis, Democracy and Disagreement 56–57 (Belknap Press, 1996)Google Scholar (stating that the demand for reciprocity is violated when one's claim “imposes a requirement on other citizens to adopt one's way of life as a condition of gaining access to the moral understanding that is essential to judging the validity of one's moral claims”).

The Establishment Clause of the Constitution supports this conclusion. U.S. Const amend. I, provides, in part, the following: “Congress shall make no law respecting an establishment of religion.” Justice O'Connor, concurring in Lynch v Donnelly, 465 U.S. 668, 687-88 (1984) (O'Connor, J., concurring), put the matter plainly:

A majority of the Court subscribed to this interpretation in County of Allegheny v American Civil Liberties Union, 492 U.S. 573, 616 (1989).

106. Hampton, Jean, Political Philosophy 181 (Westview Press, 1997)Google Scholar.

107. Political Liberalism at 225 (cited in note 4). Whether those “widely accepted” truths account for all of the content or not is the subject of some debate. Michelman, 46 Stan L Rev at 1815 (cited in note 104). Compare Waldron, Jeremy, Religious Contributions in Public Deliberation, 30 San Diego L Rev 817 (1993)Google Scholar (arguing that Rawls' theory prohibits the introduction of novel arguments) with Solum, Lawrence B., The Religious Voice in the Public Square: Novel Public Reasons, 29 Loy L A L Rev 1459 (1996)Google Scholar (contra Waldron). Rawls supports the view of Solum in Public Reason at 794-97 (cited in note 4).

108. TJ at 60 (cited in note 4).

109. Rawls argues that the point of the “difference principle” is to “set up a social system so that no one gains or loses from his arbitrary place in the distribution of natural assets or his initial position in society without giving or receiving compensating advantage in return.” TJ at 102 (cited in note 4) (stating also that the difference principle underlies “the main public principles and policies that regulate social and economic inequalities … [and that are] used to adjust the system of entitlements and earnings and to balance the familiar everyday standards … which the system employs”).

I am not unmindful of the feminist critiques of parts of Rawls' work. See, for example, Okin, Susan Moller, Political Liberalism, Justice, and Gender, 105 Ethics 23 (1994)CrossRefGoogle Scholar (questioning, among other things, Rawls' treatment of the family). Nevertheless, I do not think Rawls' vision is inconsistent with the position for which I am arguing here. As Professor Rhode writes, “many inequalities of greatest concern to feminists reflect limitations less in liberal premises than in efforts to realize liberalism's full potential.” Compare Rhode, Deborah L., Feminist Critical Theories, 42 Stan L Rev 617, 627 (1990)CrossRefGoogle Scholar (noting that in an earlier piece, Okin argues that despite problems, Rawls' framework is not inconsistent with feminist principles). Rawls replies to Okin in Rawls, , Public Reason at 787–94Google Scholar (cited in note 4) (discussing the essential restraints a conception of political justice places on family life). Cf. Hampton, , Political Philosophy at 163, 203, 204, 206Google Scholar (cited in note 106) (suggesting ways in which Rawlsian theory might be hospitable to aspects of the feminist project).

110. Cohen, Joshua, Democratic Equality, 99 Ethics 727, 729 (1989)CrossRefGoogle Scholar; Macedo, , Public Reason, at 5Google Scholar (cited in note 100). As Thomas Nagel points out, it's not clear that any individual's assent to a particular political system is, in fact, truly voluntary. Nevertheless a people subject to a political system should “have sufficient reason to accept it [and that] is as close as we can come to making this involuntary condition voluntary.” Nagel, , Equality and Partiality at 36 (cited in note 91)Google Scholar.

111. Mann, , The Book of Torah: The Narrative Integrity of the Pentateuch at 13 (cited in not e 60)Google Scholar. See also Feld, The Spirit of Renewal: Finding Faith after the Holocaust at 6 (cited in not e 57) accord, Soloveitchik, 7 Tradition at 15 (cited in note 61) (“Adam I is the creative being striving to improve the lot of humanity through the dignity of intelligence and curiosity and responsibility.”).

112. Putnam, , The Many Faces of Realism at 44, 45 (cited in note 21) (emphasis in the original)Google Scholar.

113. See Cahill, Thomas, The Gifts of the Jews 211–28 (Doubleday, 1998)Google Scholar; Cohen, Abraham, Eeveryman's Talmud: The Major Teachings of the Rabbinic Sages 219, 224 (Schocken Books, 1995)Google Scholar.

114. See, for example, Brueggemann, Walter, Texts Under Negotiation: The Bible and Postmodern Imagination 62 (Fortress Press, 1993)Google Scholar (exhorting readers to enter into a “zone of imagination that stands between the input of the text and the outcome of attitude, belief, or behavior”); Halkin, , Commentary at 44Google Scholar (cited in note 44) (labeling as “superimposition” the process of filling-in the vast interstitial spaces between verses and words).

115. I do not mean to be understood as denying the androcentric nature of Genesis. See, for example, Exum, J. Cheryl, Fragmented Women: Feminist (Sub)Version of Biblical Narrative 11–2 (Trinity Press Int'l, 1993)Google Scholar; Raschke and Raschke, The Engendering God: Male and Female Faces of God at ch 1 (cited in note 5) Carmody, Denise Lardner, Biblical Woman: Contemporary Reflections on Scriptural Texts 11 (Crossroad Pub Co, 1988)Google Scholar, notes accurately that in a feminist age, “we realize, fully for the first time, that the Bible is one of feminists' great problems.”

Solving these problems requires nothing less than a new interpretation of the narrative, as Phyllis Trible understood a generation ago. Trible, God and the Rhetoric of Sexuality (cited in note 5). Bringing this new interpretation to matters of law and gender equality is a task to which I am trying to attend. See Blumoff, Genesis, Gender and Community, a paper presented at the U of S California's Symposium on “Gender-Based Analyses of World Religion and the Law” (Fall 1999), which appears in 9 S Calif Rev L & Women's Studies (cited in note 5).

116. See, for example, Eugene Rivers III, quoted in Moyers, Bill, Genesis: A Living Conversation 137Flowers, Betty Sue, ed, (Doubleday, 1996)Google Scholar (“Abraham's moral ambiguity is an argument for the position that you don't have to be a goody-goody to function as an instrument of God.”).

117. Cf. Rosenblatt, and Horowitz, , Wrestling with Angels at 41Google Scholar (cited in note 46) (noting that child-bearing could be a life-threatening experience until fairly recently); Gibson, John C.L., Genesis: Volume I at 137 (Westminster Press, 1981)Google Scholar (warning against any reading of this verse as perpetuating the notion that “woman's unhappy state of [subjugation] is a particular cross she has to bear because she is particularly sinful”).

118. On the influence of Augustinian thought on sexual intercourse and childbirth, see Pagels, Elaine, Adam, Eve, and the Serpent 127–50 (Random House, 1988)Google Scholar.

119. Note that this explanation also provides a more generous understanding of the next line in Gen 3:16: “And he [your husband] shall rule over you.” Given the absence of birth control, women spent a good deal of their childbearing age bearing or attempting to bear children. “Since … male-female relationships throughout Genesis [are] not one of dominance … but interdependence, I believe this line anticipates impending motherhood and assigns man the task of protecting her and her offspring.” Rosenblatt, and Horowitz, , Wrestling with Angels at 41Google Scholar (cited in note 46). Cf. Gibson, , Genesis: Volume I at 137Google Scholar (cited in note 117) (recalling the unchallengeable fact that, until fairly recently in human history, women were treated as chattel in many cultures).