Howard Kislowicz, “Judging the Rules of Belonging”

Working Abstract

Though it is generally thought that judges are not well suited to make determinations about an individual’s membership in a particular community, in some cases the court’s decision will inevitably involve a cultural community’s rules of membership. These cases raise multi-layered constitutional questions, as issues of religious and associative freedom must sometimes be considered alongside issues of discrimination. In this article, I identify patterns in the judicial strategies for dealing with the double-edged problems sometimes posed by group membership rules and practice. I will canvas three such strategies (1) Group-based Autonomy, (2) Group-based Autonomy with Procedural Conditions, and (3) Substantive Engagement with Membership Norms. Analyzing judicial decisions in this fashion inspires the search for alternative strategies where the existing approached are unsatisfying. I argue that when courts are able to stay more closely within the limits of the “procedural conditions” approach, they can generally avoid the difficult position of deliberating on a cultural or religious norm, for which judges have neither the appropriate expertise nor the proper status in the relevant community. When this approach proves unworkable because of the particular membership rules in issue, I argue for an alternative strategy, inspired by the writings of Ayelet Shachar, that re-imagines state-community relationships as power-sharing arrangements.

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