Courts and Cultural Distinctiveness

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’s 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’s and Joseph Carens’s papers and Dean Suagee’s remarks delivered at the Preservation of Minority Cultures Symposium, I contrast these panelists’ 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.