1 For a review of the conflict between gender equality and religious freedom in the international setting, see Sullivan, Donna J., “Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution” (1992) 24 Int'l Law and Politics 795.Google Scholar

2 Ibid. at 795.

3 On the historical tension between cultural pluralism and universal rights, see Stone, Suzanne Last, “Comment: Cultural Pluralism, Nationalism, and Universal Rights” (2000) 21 Cardozo L. Rev. 1211, 1212–16.Google Scholar

4 Raz, Joseph, “Multiculturalism” (1998) 11 Ratio Juris 193, 194.CrossRefGoogle Scholar

5 See Zablocki v. Redhail, 434 U.S. 374 (1978) (declaring unconstitutional a State law that conditioned remarriage on the satisfaction of prior alimony and child support obligations).

6 Robert Cover provides a rich theoretical account of the conflict between these two fundamental values, and how to order between them, in Cover, Robert M., “Foreward: Nomos and Narrative” (1983) 97 Harv. L. Rev. 4.Google Scholar On ordering between the two values in the context of Israeli political society, see Raday, Frances, “Religion, Multiculturalism and Equality: The Israeli case” (1994) in Isr. Yrbk Hum. Rts. 193.Google Scholar

7 See infra n. 26 and accompanying text.

8 Minow, Martha, “The Constitution and the Subgroup Question” (1995) 71 Indiana L. Journal 1, 1.Google Scholar

9 For an evaluation of legal pluralism in the different context of Israel, see Halperin-Kaddari, Ruth, “Rethinking Legal Pluralism in Israel: The Interaction Between the High Court of Justice and Rabbinical Courts” (1997) 20 TAU L. Rev. 683 (in Hebrew)Google Scholar; Halperin-Kaddari, Ruth, “More on Legal Pluralism in Israel” (1999) 22 TAU L. Rev. 559 (in Hebrew).Google Scholar

10 Salecl, Renata, “Law and the Postmodern Mind: Rights in Psychoanalytic and Feminist Perapective” (1995) 16 Cardozo L. Rev. 1121, 1137.Google Scholar

11 See Stolzenberg, Nomi Maya and Myers, David N., “Community, Constitution, and Culture: The case of the Jewish Kehilah” (1992) 25 U. Mich. J. of Law Reform 633, at 634.Google Scholar

12 See Deut. 24:1–4; Mishna, Yevamot 14:1.

13 Babylonian Talmud, Yevamot 112b; Maimonides, Mishneh Torah, Laws of Marriage 1:1.

14 On the nature and history of these reforms, see Falk, Ze'ev, Jewish Matrimonial Law in the Middle Ages (Oxford, Oxford Univ. Press, 1966) 113–43.Google Scholar

15 If one hundred rabbis agree, the husband is given permission to remarry even though the first wife never accepted the divorce.

16 These sanctions must not be so severe as to constitute an overpowering of the husband's will. Sanctions also may be imposed if they are a response to factors extraneous to the failure to execute the divorce. See generally Breitowitz, Irving A., Between Civil and Religious Law: The Plight of the Agunah in Modem American Society (Westport, Conn., Greenwood Press, 1993) 20–34.Google Scholar

17 Such orders are, at first glance, incompatible with the basic principle that the husband execute the divorce willingly. The Talmud simply declares that in such cases the husband is forced until he declares: “I am willing.” Babylonian Talmud, Yevamot 106a. Maimonides rationalizes the paradox by distinguishing between the inner and external intent of the husband. The inner intent of every Jew is to obey religious law. The refusal to do so is the result of an evil disposition that temporarily overpowers his free will. “Duress is therefore applied not to overcome the husband's exercise of will but to remove the impediment that prevents the free will from emerging.” Maimonides, Mishneh Torah, Laws of Divorce 2:20. See Breitowitz, supra n. 16, at 34–40.

18 N.Y. Dom. Rel. Law 253 (McKinney 1988).

19 Ibid. at 253(6).

20 N.Y. Dom. Rel. Law 236B (McKinney Supp. 1997).

21 When an invalid Jewish divorce will be created as a result of civil law orders is treated in detail in Breitowitz, supra n. 16.

22 See, e.g. Avitzur v. Avitzur, 446 N.E.2d 136 (N.Y. 1983); Waxstein v. Waxstein, 394 N.Y.S.2d 253 (App. Div. 1977).

23 See, e.g., In re Marriage of Goldman, 554 N.E.2d 1016 (Ill. App. Ct. 1990); Burns v. Burns, 538 A.2d 438 (N.J. Super. 1987).

24 See Breitowitz, supra n. 16, at 81–86, 90–91.

25 See text accompanying nn. 69–72, 79–84 infra.

26 The number of articles devoted to the constitutional issues are too voluminous to cite. The most comprehensive discussions can be found in Breitowitz, supra n. 16, and Greenawalt, Kent, “Religious Law and Civil Law: Using Secular Law to Assure Observance of Practices with Religious Significance” (1998) 71 Southern Cal. L. Rev. 781, 810–43.Google Scholar Both scholars conclude that civil law intervention in American Jewish divorce, in major detail, passes constitutional muster. For a contrary assessment, see Finkelman, Paul, “A Bad Marriage: Jewish Divorce and the First Amendment” (1995) 2 Cardozo Women's L. J. 131.Google Scholar

27 Greenawalt, supra n. 26, at 815.

28 See ibid., at 828. Still, such aid may be viewed as incidental in light of secular purposes. Ibid.

29 legislative grants of special benefits to one religion are an object of particular concern for the Court because they pose a potential for discrimination against other groups. The specter of legislative favoritism to a particular religious group was cited as one reason for invalidating a school district created for a village consisting entirely of members of the Jewish Satmar hasidic sect. Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994) at 702–05.

30 Compare Garet, Ronald, “Communality and Existence: The Rights of Groups” (1983) 56 Southern Cal. L. Rev. 1001Google Scholar (offering a philosophical justification of group rights) with Hartney, Michael, “Some Confusion Concerning Collective Rights” in Kymlicka, Will, ed., The Rights of Minority Cultures (Oxford, Oxford Univ. Press, 1995) 202Google Scholar (arguing that all rights are, in the end, individual).

31 See generally Rosenfeld, Michel, “Can Human Rights Bridge the Gap Between Universalism and Cultural Relativism? A Pluralist Assessment Based on the Rights of Minorities” (1999) 30 Columbia Hum. Rts L. Rev. 249, 254–58.Google Scholar

32 United States v. Seeger, 380 U.S. 163 (1965).

33 Reynolds v. United States, 98 U.S. 145 (1878) at 167.

34 Employment Division v. Smith, 494 U. S. 872 (1990) at 888 (“leaving accommodation to the political process… must be preferred to a System in which each conscience is a law unto itself”).

35 See, e.g., Tushnet, Mark, “The Constitution of Religion” (1986) 18 Conn. L. Rev. 701, 731.Google Scholar On the Protestant roots of American public philosophy and its instantiation in the modern idea of civil society, see Seligman, Adam S., The Idea of Civil Society (New York, The Free Press, 1992) 59–99.Google Scholar

36 See Siedentop, Larry A., “Liberalism: The Christian Connection,” Times Literary Supplement, March 24–30, 1989, p. 308Google Scholar, who notes that in Christianity, the individual is the basic social unit and “nowhere more so than in Protestantism, which, in this respect, can be viewed as a more self-conscious form of Christianity.”

37 See Bloom, Harold, The American Religion (New York, Simon & Schuster, 1995) 121.Google Scholar Bloom distills from the variety of religious manifestations in America a common American religious imagination, which he equates with the American national soul. The peculiarly American idea of freedom, of lighting out into the territories, of the sense of constant possibility and of becoming, is, he argues, the essence of the American religion.

38 Anderson, Benedict, Imagined Communities: Reflections on the Origins and Spread of Nationalism (New York, Verso, 1991).Google Scholar

39 Smith, Anthony D., National Identity (London, Penguin, 1991) 10.Google Scholar

40 See ibid.

41 Wisconsin v. Yoder, 406 U.S. 205 (1972).

42 Stolzenberg and Myers, supra n. 11, at 666.

43 Employment Division v. Smith, 494 U.S. 872 (1990).

44 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

45 In defending the extension of equal citizenship rights to Jews by the French Revolutionary Assembly, Comte Stanislas de Clermont-Tonnere is famously reported to have declared: “One must refuse everything to the Jews as a nation; but one must grant everything to them as individuals” and that “it should not be tolerated that the Jews become a separate political formation or class in the country.” Hertzberg, Arthur, The French Enlightenment and the Jews (New York, Columbia Univ. Press, 1968) 360.Google Scholar

46 See Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994).

47 Taylor, Charles, “The Politics of Recognition” in Guttman, Amy, ed., Multiculturalism: Examining the Politics of Recognition (Princeton University, 1994) 25, at 28–37.Google Scholar

48 Raz, supra n. 4, at 197.

49 See, e.g., Cover, supra n. 6; Tushnet, supra n. 35.

50 See Garet, supra n. 30.

51 The intellectual groundwork for the first two parts of this classification scheme may be found in Stolzenberg and Myers, supra n. 11, at 650–68, which provides an extended, nuanced analysis of the distinctions between various schools of American pluralist thought.

52 Young, Iris Marion, “Polity and Group Difference: A Critique of the Ideal of Universal Citizenship” (January 1989) 99 Ethics 250.CrossRefGoogle Scholar

53 Ibid. at 267.

54 See Post, Robert C., “Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment” (1988) 76 Cal. L. Rev. 297, at 301–03.CrossRefGoogle Scholar For a philosophical justification of the value of cultural diversity, see Meyers, Diana Tietjens, “Cultural Diversity: Rights, Goals, and Competing Values” in Goldberg, David Theo and Krausz, Michael, eds., Jewish Identity (Philadelphia, Temple Univ. Press, 1993) 15.Google Scholar

55 Stolzenberg and Myers, supra 11, at 660.

56 See Chiba, Masaji, “Other Phases of Legal Pluralism in the Contemporary World” (1998) 11 Ratio Juris 228CrossRefGoogle Scholar; Weisbrod, Carol, “Family, Church and State: An Essay on Constitutionalism and Religious Authority” (1987–1988) 26 J. Fam. L. 741Google Scholar; Galanter, Marc, “Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law” (1981) 19 J. Legal Pluralism 1.CrossRefGoogle Scholar

57 Griffiths, John, “What Is Legal Pluralism?” (1986) 24 J. Legal Pluralism 1, 3.CrossRefGoogle Scholar

58 See Weisbrod, supra n. 56, at 749.

59 See Stolzenberg and Myers, supra n. 11, at 659–60.

60 See Merle, Jean-Christophe, “Cultural Minority Rights and the Rights of the Majority in the Liberal State” (1998) 11 Ratio Juris 259, 265.CrossRefGoogle Scholar

61 Shachar, Ayelet, “Group Identity and Women's Rights in Family Law: The Perils of Multicultural Accommodation” (1998) 6 J. Political Philosophy 285, 287CrossRefGoogle Scholar, citing Tully, James, Strange Multiplicity: Constitutionalism in an Age of Diuersity (Cambridge, Cambridge Univ. Press, 1995).CrossRefGoogle Scholar See also Shachar, Ayelet, “On Citizenship and Multicultural Vulnerability” (2000) 28 Political Theory 64, 67–70CrossRefGoogle Scholar; Shachar, Ayelet, “Reshaping the Multicultural Model: Group Accommodation and Individual Rights” (1998) 8 Windsor Rev. of Legal and social Issues 83, 92–96.Google Scholar

62 See Kymlicka, Will, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, Oxford Univ. Press, 1995) 34–48.Google Scholar

63 See ibid., at 76–80.

64 See Shachar, “On Citizenship and Multicultural Vulnerability”, supra n. 61, at 73–74; Shachar, “Reshaping the Multicultural Model” supra n. 61.

65 Salecl, supra n. 10, at 1137.

66 Ibid.

67 In phrasing pluralism as an encounter between two cultural systems I leave open the possibility that non-Western groups may be correct when they argue that fundamental tenets of liberalism are a political expression of a specific kind of cul ture that is an outgrowth of Christianity as manifested in the West. Or, as Charles Taylor put it, “the worrying thought is that the very idea of such a liberalism may be… a particularism masquerading as the universal.” Taylor, supra n. 47, at 44.

68 Chiba, supra n. 56, at 239.

69 Golding v. Golding, 176 A.D.2d 20; 581 N.Y.S.2d 4 (N.Y. App. Div. 1992).

70 The question whether an economic bargain between a husband and wife could be overturned on grounds of misuse of the veto power one spouse has over another to secure a Jewish divorce also was addressed in a prior New York case, Perl v. Perl, 126 A.D. 91, 512 N.Y.S.2d 372 (N.Y. App. Div. 1987). In Perl, which involved a marriage of twelve years, the husband extracted a clearly extortionate financial settlement in a judicial proceeding to distribute marital assets held after the civil divorce was granted. Golding is a significant extension of Perl. Golding neither requires a finding that the bargain itself is substantively unfair, nor does it require a specific factual finding of duress in the individual circumstances of the case.

71 See Golding v. Golding, N.Y. Sup, Court, N.Y. Law Journal, June 28, 1990.

72 See Schwartz v. Schwartz, 153 Misc.2d 789, 583 N.Y.S.2d 717 (N.Y. Sup. Ct. 1992).

73 Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817 (N.Y. Ct. Appeals, 1977).

74 Christian thus holds domestic contracts to a higher standard of procedural fairness than that demanded by ordinary contract law principles. The Christian court offered two rationales for singling out domestic contracts for heightened judicial scrutiny. First, the court sits in equity in divorce cases and therefore may demand an absence of inequitable conduct and, second, spousal agreements, unlike ordinary business contracts, involve a fiduciary relationship that demands the utmost good faith. Christian v. Christian, 42 N.Y.2d 63, at 72.

75 See, e.g., Martin v. Martin, 74 A.D.2d 419.

76 Raz, supra n. 4, at 197.

77 Mnookin, Robert and Kornhauser, Lewis, “Bargaining in the Shadow of the Law: The case of Divorce” (1979) 88 Yale L. J. 950.CrossRefGoogle Scholar

78 Ibid. at 955.

79 What is noteworthy about Golding is that it departs from the general reluctance of courts to undo a bargain reached through the strategie use of endowments created by substantive family law norms.

80 Golding v. Golding, N.Y. Sup. Ct, N.Y. Law Journal, June 28, 1990.

81 Ibid.

82 Ibid.

83 Ibid.

84 On Golding's potential effect on the creation of invalid, coerced Jewish divorces, see Breitowitz, supra n. 16, at 217 n. 643.

85 This resolution of the conflict between a group right of religio-legal autonomy and an individual right of Jewish women to equal access to the civil right of divorce is structurally similar to the Supreme Court's resolution of a similar conflict between group and individual rights in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). In that case, Julia Martinez, a Santa Clara Pueblo who had married a Navajo, challenged in federal courta Santa Claran Pueblo tribal membership ordinance that discriminated against the children of Santa Claran women who married non-Santa Clarans by denying them membership in the tribe, while the children of Santa Claran men who married non-Santa Clarans were held to be full members of the tribe. The effect of the Santa Clara Pueblo ordinance was to deny these children not only tribal but also federal benefits. The women pointed to the federal policy embodied in the Indian Civil Rights Act to apply civil rights to tribal governments. The tribe pointed to the federal policy of supporting Indian self-determination recognized in various treaties as well as in the Indian Civil Rights Act itself. Thus, the Santa Clara Pueblo case involved two conflicting norms: tribal sovereignty versus equal protection in a statutory incarnation, or a group right to autonomy as against an individual right to equality, with the tension between them arising precisely because Ms. Martinez was a member of two governmental systems, the Santa Clara Pueblo and the United States.

In a divided opinion, one that sparked a great deal of controversy, the Court effectively affirmed the principle of tribal sovereignty by holding that federal courts had no jurisdiction to decide whether a gender discriminatory tribal membership rule deprived a Santa Claran Pueblo woman and her children of the equal protection of the laws guaranteed by the statute. Intergroup equality between the United States and the Indian tribes was supported on the ground that internal tribal control would enhance the tribe and compensate for past erosions of tribal identity – but at the expense of interpersonal equality. Even feminist legal theorists have described Santa Clara Pueblo as a hard case. There ambivalence centered on the wisdom of passing judgment on the tribe operating from within its own cultural matrix and on the sense that the tribe deserved support to compensate for the history of domination by the federal government. See Resnik, Judith, “Dependent Sovereigns: Indian Tribes, States, and the Federal Courts” (1989) 56 U. Chi. L. Rev. 671.CrossRefGoogle Scholar

86 See Kymlicka, supra n. 62, at 41; Raz, supra n. 4, at 197.

87 See text accompanying n. 27 supra.

88 It is a positive religious command to divorce in accordance with the procedures of Jewish divorce law. Maimonides, Mishneh Torah, Introduction to Laws of Divorce. This law, unlike those subsumed vinder the category of fiscal matters, is not one that parties may vary through private ordering. On the distinction between fiscal matters and matters of prohibition and permission, see Elon, Menahem, Jewish Law: History, Sources, Principles, vol. I (Philadelphia, Jewish Publication Society, 1994) 108–09.Google Scholar

89 406 U.S. 205 (1972).

90 See Employment Division v. Smith, 494 U. S. 872 (1990).

91 See Shachar, “Reshaping the Multicultural Model”, supra n. 61; Shachar, “Group Identity and Women's Rights”, supra n. 61; Shachar, “On Citizenship and Multicultural Vulnerability”, supra n. 61.

92 Shachar, “On Citizenship and Multicultural Vulnerability”, supra n. 61, at 79.

93 Rosenfeld, Michel, “Human Rights, Nationalism, and Multiculturalism in Rhetoric, Ethics, and Politics: A Pluralist Critique” (2000) 21 Cardozo L. Rev. 1225, 1234.Google Scholar

94 Shachar, “On Citizenship and Multicultural Vulnerability”, supra n. 61, at 73.

95 On the Talmudic and medieval reforms, see Falk, supra n. 14.

96 See Breitowitz, supra n. 16, passim (detailing the variety of ways Halakhic authorities have attempted to enlist American law to solve the agunah Problem).

97 The classical study of this principle is that of Shilo, Shmuel, Dina de-Malkhuta Dina (Jerusalem, 1974).Google Scholar

98 See Blidstein, Gerald J., “A Note on the Function of The Law of the Kingdom is the Law' in the Medieval Jewish Community” (1973) 15 Jewish J. Sociology 213.Google Scholar

99 Shilo, Shmuel, “Equity as a Bridge Between Jewish and Secular Law” (1991) 12 Cardozo L. Rev. 737, 738.Google Scholar

100 See ibid. at 744.

101 See, e.g., Bleich, David J., “Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement” (1984) 16 Conn. L. Rev. 201Google Scholar; Breitowitz, supra n. 16, at 87–91. The writers are both law professors as well as recognized Halakhic authorities.

102 Stolzenberg and Myers, supra n. 11, at 670.

103 See Stone, Suzanne Last, “Sinaitic and Noahide Law: Legal Pluralism in Jewish Law” (1991) 12 Cardozo L. Rev. 1157, 1161–71.Google Scholar

104 See, e.g., Kymlicka, supra n. 62; Raz, Joseph, Ethics in the Public Domain (Oxford, Oxford Univ. Press, 1994) 160–63.Google Scholar

105 See Waldron, Jeremy, “Minority Cultures and the Cosmopolitan Alternative” (1992) 25 U. Mich. J. of Law Reform 751.Google Scholar

106 Meyers, supra n. 54, at 28.

107 Shachar, “Group Identity and Women's Rights in Family Law”, supra n. 61, at 299–303.

108 Stolzenberg and Myers, supra n. 11, at 633.

109 Ibid. at 634.

110 Ibid.

111 Ibid.

112 Ibid. at 141.

113 Ibid. at 142.

114 Ibid. at xv.

115 For a liberal defense of the right to cul ture linked to identity and formulated from the viewpoint of group members, see Margalit, Avishai and Halbertal, Moshe, “Liberalism and the Right to Culture” (1994) 61 social Research 491.Google Scholar

116 Raz, supra n. 4, at 197.

117 Meyers, supra n. 54, at 29–33.