ABSTRACT

The liberal commitment to multicultural accommodation and the free exercise of culture may at times conflict with the liberal commitment to equal respect and concern for all. Such conflicts arise when the state is asked to accommodate cultural practices and traditions that discriminate and disadvantage some of the members of the cultural group in question. Such conflicts are usually described as conflicts between freedom and equality – between the right of groups and individuals to freely exercise their culture, and the state interest in promoting equality. Which side prevails in each particular case depends on “balancing” the state interest in promoting equality, with the group’s interest in preserving their freedom of religion or freedom of association. However, certain conflicts between discriminatory practices of cultural groups and generally applicable non-discrimination laws cannot be described as conflicts between free exercise of culture and the state interest in promoting equality. These are the cases where the demands for equal treatment are raised not by the state or by outsiders, but by disadvantaged individuals and groups within a community, who base their claim for greater equality not on the superiority of liberal values over the values of their culture but rather on an alternative, competing, interpretation of the values and principles of their own culture. The attempts of individuals within communities to reinterpret their community’s norms and values are in themselves an exercise of the right to culture and the right to freely exercise one’s culture.

Consequently, internal cultural challenges to discriminatory practices require a different conceptual and doctrinal apparatus. They raise new and difficult questions: who speaks for a culture, and who defines its values and principles? Whose “free exercise of culture” are we to focus on? Does the right to freely exercise a religion include the right to suppress and exclude dissenters from within? Or should the state protect freedom of speech and freedom of cultural dissent within groups? In this paper I offer an analysis of the normative considerations that internal cultural conflicts involve, from the perspective of the liberal state, and I offer tentative responses to some of the questions mentioned above. I argue that in most cases, the liberal state should support such attempts in at least the following way: it must not lend the power of the law to silence and suppress reformist attempts. Before granting exemptions from generally applicable non-discrimination laws, courts must acknowledge internal cultural conflicts, and give voice to the competing interpretations of cultural practices that are offered by marginalized individuals. In particular, courts should be wary of uncritically granting associations the right to exclude or silence dissenters.