Legal Commentary

I just got back from a wonderful conference at St. John's on Religious Legal Theory: Religion in Law, Law in Religion put together by Mark Movsesian and Marc DeGirolami.  As announced at the conference, next year's Religious Legal Theory Conference installment will be held at Pepperdine Law School to be run by Robert Cochran.   

During my presentation at the conference, I floated an idea that I've termed the "new multiculturalism."  One sees this trend, for example, in the recent attempted ban of Sharia Law in Oklahoma and how multicultural debates have become intermingled with issues of conflicts of laws (check out recent posts from both my colleagues Trey Childress and Roger Alford thinking about the Oklahoma Sharia Law ban and the parallel ban against international law). 

If the shift to the old multiculturalism, to use Nancy Fraser's phrase, was all about a shift from redistribution to recognition, I think the shift to the new multiculturalism is all about a shift from symbolic recognition to jurisdictional differentiation.   

The ?old? multiculturalism was largely focused on the recognition of previously marginalized minority groups.    Philosophically, the old multicultural movement understood recognition of the ?other? as an essential feature of liberalism?s dedication to the principles of equal respect and equal dignity.  Accordingly, the great multicultural debates of the late 2oth century ? and even in the early 21st century ? followed this same script, centered on such questions as the minority representation in higher education, the permissibility of religious symbols in public schools, incorporating religious views into public discourse, and permitting religious symbols on government property. 

Increasingly, my sense is there's been a shift to a ?new? multiculturalism where minority groups ? especially religious minority groups ? are less concerned with receiving recognition and more concerned with maintaining autonomy.  Philosophically, the new multiculturalism conceives of minority identity as embodied not only in symbols and histories, but also in the rules and practices that often constitute an independent legal order.  And for minority communities to maintain their identity, they must also find a way to retain authority of the interpretation, application and enforcement of communal rules within their membership.  

Accordingly, the new multiculturalism looks less for symbolic integration and more for jurisdictional differentiation.  We might even thing of Employment Division v. Smith and CLS v. Martinez as bookends of the new multiculturalism.  Similarly, I also take the recent battles over Sharia Law in Oklahoma to be emblematic of the new mutliculturalism. 

In an upcoming post, I'm hoping to explore what I take to be the next great debate of the new multiculturalism.