<p>Many courts and political theorists reject legal accommodations for minority religious communities on the ground that they demand more rights or opportunities than other citizens enjoy. Such arguments often characterize these requests, which often take the form of exemptions from the law or support for essential religious activities, as what Ronald Dworkin and Brian Barry call “expensive tastes.” These critics argue that the law guarantees equal rights, resources, and opportunities, not the equal success or survival of each religious community. Focusing on sacred lands claims brought by Native American tribes, this article argues that extending the “expensive tastes” logic to cases like these would be mistaken for two reasons. First, it introduces a phenomenon I call “exclusionary drift,” which occurs when legal doctrine develops from majoritarian assumptions, making minority claims look increasingly burdensome. When a religious or cultural community’s claim is “expensive” due to drift, this is the state’s responsibility. Second, it emphasizes the role that religious convictions play in communities whose ways of life are insulated from alternatives. For such communities, their inherited practices often function as the only psychologically accessible path to a meaningful life. This article concludes that many supposedly “expensive” claims are demands for equal rights following decades of structural exclusion. Thus, this article offers a novel defense of a class of cultural preservation rights that are not typically the focus of the “expensive tastes” debate, but which have been wrongly denied to indigenous groups and other religious minorities.</p>

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Beyond Expensive Tastes: Exclusionary Drift and the Rights of Minority Cultures

  • David C. Scott

摘要

Many courts and political theorists reject legal accommodations for minority religious communities on the ground that they demand more rights or opportunities than other citizens enjoy. Such arguments often characterize these requests, which often take the form of exemptions from the law or support for essential religious activities, as what Ronald Dworkin and Brian Barry call “expensive tastes.” These critics argue that the law guarantees equal rights, resources, and opportunities, not the equal success or survival of each religious community. Focusing on sacred lands claims brought by Native American tribes, this article argues that extending the “expensive tastes” logic to cases like these would be mistaken for two reasons. First, it introduces a phenomenon I call “exclusionary drift,” which occurs when legal doctrine develops from majoritarian assumptions, making minority claims look increasingly burdensome. When a religious or cultural community’s claim is “expensive” due to drift, this is the state’s responsibility. Second, it emphasizes the role that religious convictions play in communities whose ways of life are insulated from alternatives. For such communities, their inherited practices often function as the only psychologically accessible path to a meaningful life. This article concludes that many supposedly “expensive” claims are demands for equal rights following decades of structural exclusion. Thus, this article offers a novel defense of a class of cultural preservation rights that are not typically the focus of the “expensive tastes” debate, but which have been wrongly denied to indigenous groups and other religious minorities.