Diversity and Equality: Three Approaches to Cultural and Sexual Difference

One of the leading issues in contemporary constitutionalism is how to adjudicate conflicts, which occur between communities that are ethnically or nationally different from each other, without being blind or insensitive to these differences. It is fairly safe to speculate that courts have always had to adjudicate conflicts in light of ethnic and national differences. But the more self-consciously post-national or multinational the state becomes (or the more the state is replaced by ‘complex-state’ entities 1 ), the greater is the need to develop a legitimate means of adjudicating conflicts when they arise between political communities that are different on the basis of ethnicity, nationhood or even religion. The dilemma between protecting sexual equality and protecting cultural autonomy has recently attracted the attention of numerous legal and political theorists and practitioners partly because it vividly captures the challenges posed for adjudicating conflicts across ethnic, national or religious lines. Two dominant approaches have emerged to resolve conflicts that arise between measures to protect sexual equality and those that advance cultural autonomy. First, advocates of a rights-based approach frame debates about cultural autonomy and sexual equality in terms of a conflict between fundamental and irreconcilable values. 2 Second, advocates of the process-based approach emphasize the need for communities to resolve such conflicts themselves through internal decision-making procedures or at least through procedures that the community endorses (e.g. third party arbitrars). Here I examine each of these approaches and suggest a third approach which I call the difference-based approach. The difference-based approach provides a means by which adjudication can take place, when it needs to take place, without being blind or insensitive to the national or ethnic differences that exist between the communities in conflict. The approach asks that we view such conflicts * Thanks to Matt James, Colin Macleod, Margaret Moore, Jeff Spinner-Halev, James Tully and the participants in the Exeter Colloquium on Constitutionalism, Democracy and Citizenship for their helpful comments on the ideas contained in this paper. Also thanks to Jo Shaw and Antje Wiener for their suggestions. 1 Thanks to Jo Shaw for this useful term. 2