74 Pages Posted: 24 Apr 2002
Gay Scoutmasters contest what it means to be a Boy Scout. Female Pueblo Indians denounce tribal rules as sexist. Muslim women reinterpret the Koran and emphasize women's right to religion and equality. In the twenty-first century, exposure to modernity and globalization has created a society that now more than ever is characterized by cultural dissent: challenges by individuals within a culture to modernize, or broaden, the traditional terms of cultural membership. Cultural dissent symbolizes a movement away from imposed cultural identities to a new age of autonomy, choice and reason within culture. But current law, stuck in a nineteenth-century view of culture as imposed, distinct, and homogeneous elides cultural dissent. Under current law, cultural dissenters have either a right to culture (with no right to contest cultural meaning) or to equality (with no right to cultural membership), but not to both. Through a close reading of Boy Scouts of America v. Dale, Professor Sunder illustrates how, in the name of preserving cultural distinctiveness, freedom of association law authorizes the exclusion of those whose speech challenges cultural norms. Law's conception of culture matters. As cultures become more internally diverse and members appeal to courts to determine a culture's meaning, increasingly, it will be law, not culture, that regulates cultural borders. Law's outmoded view of culture leads it to reestablish traditional cultural boundaries, in some cases making them stronger than ever. This need not be the case. Professor Sunder describes how a cultural dissent approach to cultural conflict - which recognizes dissent within culture - would prevent law from becoming complicit in the backlash project of suppressing internal cultural reform.
Keywords: Law and Culture, Constitutional Law, First Amendment, Free Speech, Dissent, Liberty and Equality, Law and Humanities, Discrimination Law and Justice, Legal Theory, Jurisprudence, Cultural Studies, Globalization, Modernity, Gay Rights
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