Courts and Cultural Distinctiveness

Abstract

The claim that minority ethnic and religious groups are culturally distinct from the dominant society is often, either implicitly or explicitly, a key element of demands these groups make to courts and legislatures for accommodation of their needs. In such cases, the decision maker\u27s understanding of what constitutes cultural distinctiveness is crucial, for it can strongly influence the outcome of the accommodation question. In this brief Essay related to Peter Welsh\u27s and Joseph Carens\u27s papers and Dean Suagee\u27s remarks delivered at the Preservation of Minority Cultures Symposium, I contrast these panelists\u27 subtle and sophisticated understandings of cultural distinctiveness with the much more simplistic and less encompassing understanding commonly displayed by courts. I then suggest a few reasons why courts may be reluctant to adopt the broader conception represented by the panelists