Julius Schnorr.

Note: This is part two of a four part series by George P. Fletcher.

Genesis 1:26

AND GOD SAID, LET US MAKE ADAM IN OUR IMAGE, AFTER OUR LIKENESS

Part II. God’s Image and Equality

This text has an unappreciated relationship to our commitment to human equality. In my class on Biblical Jurisprudence I usually begin by asking the students whether they agree that human equality is a premise of modern jurisprudence and if so, how they justify our commitment, A subsidiary question is whether if the law is so committed, can override the principle with an argument for affirmative action or some other social good.

Virtually all of the students begin with utilitarian arguments. The principle of equality allegedly maintains peace among different segments of society. This is a dubious claim. Wage inequality, which results from and sustains hierarchy, has reached disturbing proportions in the United States. No one seems disturbed by our continuing to prevent released felons from voting in many states (a factor, by the way, that enabled George W. Bush to win the 2000 election in Florida and the nation).

The only argument I have ever found to support our intuitive commitment to equality is the biblical premise. Abraham Lincoln revealed his commitment to the Bible when he interpreted the Declaration of Independence in the Gettysburg Address. There is no moral claim in any other legal system as powerful as: All Men are Created Equal. Of course, we understand this now to mean all persons (with many disputes about when personhood begins and ends). No other legal system even comes close to using this religious language. The typical European legal provision reads: All persons are equal before the law. As we know from the history of slavery, the law can not be distrusted as the ultimate arbiter of our values.

Anchoring human value in God’s image generates an argument for Lincoln’s commitment to equality. If God is the infinite value, and we are created in God’s image, then we must be equal. And you might say: well how does equality fare for atheists? Immanuel Kant secularized the argument in his Foundations of Morality by distinguishing human beings and things. Things have value, human beings are ‘beyond price’. Kant generated this argument by building on the insight that human beings have the capacity to universalize the premises of their actions into universal laws of nature.

Here are some examples. Suicide is an acceptable maxim for action, for it were universalized we would all be dead and nobody could kill himself. Lying could not be universalized because if it were, no one could utter a statement believed by others and therefore no one could effectively lie.

By analogy, slavery, if universalized, would generate the conclusion that we all be owned, no one as the master owning us. The same logic generates the conclusion that we cannot treat others as less than equal. If we were all in that condition, we would in fact be equal.

Of course this would be unjust.

In a different adaptation of Kant’s morality, the German Basic Law begins with a commitment to human dignity. Die Menschenwuerde is unantastbar. It is an absolute imperative, also a secularized version of being created in God’s image. We don’t talk about human dignity very much, but the concept leads to come paternalistic consequences that some people find desirable. The German high court held that women could not perform striptease acts because treating their sexuality in this way violated their high dignity. In another case, the court held a dwarf could not consent to being fired from a canon in the circus. Equality and the free market would support their rights to earn money at the expense of their dignity.

Justice Barak was very much aware of this history when he introduced the concept of Kvod haAdam – human dignity – into Israeli law. Actually, Israeli needed this concept because they have resisted a written constitution based on the principle of equality. You can imagine all the techniques in Israeli law used to avoid equality for women and even gay marriage (though in the military there has never been as issue about inducting either – as there has been in the U.S)

Here is a story to lighten the mood. When the famous Columbia philosopher Sydney Morgenbesser was arrested after a sit-in in the 1960′s; he was held and interrogated in the police station. After his released, people asked him how we was treated. He said, I was treated unjustly but not unfairly. The immediate query: What do you mean? Well the treatment was unjust because they beat me up but it was fair, because they did not same thing to everyone else. Sydney was in fact famous for his parodies of Kantian theory – and the Bible, as I will explain in a minute.

In the end, I am convinced, there is no compelling case for human equality other than our being created in God’s Image. This extends to marriage equality, which was finally endorsed by the Supreme Court last term in the Obergefell case. The problem we have in this context is that biblical arguments appear on both sides. The argument for equality derives from this passage, the argument for discrimination derives from Levitcus 18:22: Do not lie with a man as you lie with a woman. Sydney’s interpretation: You have to take it literally. Do not just lie there, do something!

It is a pity that religious institutions feel under pressure as a result of Obergefell. To a large extent they are protected by the state action requirement, which in principle protects private organization from the mandates of the Constitution. I have not ventured a biblical argument for this principle, but in fact there a strong one implicit in our resolution of the problem of evil. God is arguably not responsible for evil: human beings are. Thus the state is not accountable for anything but the discrimination imposed by the state itself. If a baker does not want to bake a cake for a gay wedding, he is supposedly free to run his business that way. Yet this is not the way things turned in the case of racial discrimination. There are still many issues to be fought in this area and we can expect the commitment to equality to be severely tested.

I will close an obvious exception to the principle of equal treatment for all. The problem is justifying the power of parents over children, including the highly disputed use of corporal punishment. In this context, we should recall the trilogy of the French Revolution. Liberty, Equality, and Fraternity. The latter is undervalued in our individualistic culture. Fraternity implies a culture of reciprocal duties of caring. The duty to care for children, which is undisputed, carries with it certain powers including mild physical punishment.

The conflicting argument begins with the claim that children too are created in God’s Image. They may not be abused. It seems impossible to escape the implications of Genesis 1:26.

The broader issue raised by the principle of fraternity is the issue of loyalty to friends, family, and nation. The principle conflicts with the imperative of treating everyone equally. The debate about loyalty and its place in the history of philosophy and religion will engage us in the next installment.

 

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George P. Fletcher is the Cardozo Professor of Jurisprudence at Columbia University School of Law.

 

Read More: “Monotheism as a Moral Issue” by George P. Fletcher

“Reflections on Israel 2016″ by David Gordis

“All the News That’s Fit to Print” by Aviva Chomsky

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